text:
    (No. 81-CC-1473
    Rita Gordon and Vincent Gordon, Claimants, v. The State of Illinois, Respondent.

      Opinion filed Jan. 31, 1995.

    Goldberg & Goldberg (Barry David Goldberg, of counsel) for Claimants.

      Jim Ryan, Attorney General (Richard Krakowski, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimants, Rita and Vincent Gordon, filed their complaint in the Court of Claims pursuant to section 8 of the Court of Claims Act seeking recovery for personal injuries. (705 ILCS 505/8(d).) The claim by Claimant, Rita Gordon, against Respondent is a medical negligence claim arising out of acts, or omissions, alleged to have been performed by the Illinois State Psychiatric Institute, which caused her to incur personal injuries. The claim by Claimant, Vincent Gordon, is for loss of consortium.

Facts

The Claimants, Rita and Vincent Gordon, are wife and husband. They have been married since October 9, 1976. In 1979, Mr. and Mrs. Gordon were both employed. Mr. Gordon was a janitor for the Chicago Housing Authority and Rita Gordon was a case worker I for the Illinois Department of Public Aid. The Claimants enjoyed a normal, healthy marital relationship. Their four children lived with the Gordons in 1979 and Rita had the primary responsibility for maintaining the household.

Prior to January 1979 Rita Gordon had enjoyed good health. She had never suffered from any significant illness, and she had never been treated for a psychiatric condition.

In January of 1979 Mrs. Gordon began exhibiting bizarre behavior. She would talk incoherently and emotionally. One night she obtained a knife because she thought someone was out to get her. After demonstrating bizarre behavior at home, including hearing voices, Rita Gordon was admitted to Respondent’s Illinois State Psychiatric Institute on January 14, 1979. After being involuntarily admitted, she laid lifeless and made no utterances or responses. She was diagnosed as an acute schizophrenic. During this hospitalization, Rita Gordon became stuporous, failed to recognize people, developed a fever and progressed to a coma. Mrs. Gordon did not undergo any laboratory studies to work up the cause of her illness. More specifically, she never had a white blood cell count nor a spinal tap. It appears a white blood count was ordered but no result appeared in her medical chart.

On Januaiy 20, 1979, Mrs. Gordon was transferred to Rush Presbyterian St. Luke’s Medical Center. At that time she came under the care of Dr. Harold Klawans. Dr. Klawans diagnosed Rita Gordon as suffering from viral encephalitis. The diagnosis was confirmed by a spinal tap. During this hospitalization, Mrs. Gordon was treated with Arabinoside-A for the viral encephalitis. She also underwent paraperitoneal dialysis for altered kidney function and had a tracheostomy to provide support. Dilantin and Phenobarbital were prescribed to treat seizures.

The only medical witness to testify was Dr. Harold Klawans. Dr. Klawans is a board certified neurologist. Dr. Klawans testified that viral encephalitis is an inflammation of the brain caused by a virus. The signs and symptoms of viral encephalitis include fever, apparent psychiatric manifestations, followed by a depressed level of consciousness, lethargy, stupor, coma and seizure. Dr. Klawans further testified that the diagnostic modalities used to rule viral encephalitis in or out in 1979 included temperature, white blood cell count, and a spinal tap. He also testified that viral encephalitis was treated with the drug Arabinoside-A.

Dr. Klawans reviewed the Illinois State Psychiatric Institute records pertaining to Rita Gordon. It was the opinion of Dr. Klawans that the physicians at the Illinois State Psychiatric Institute deviated from the standard of care in treating Rita Gordon in the following respects:

(a) By failing to obtain a white blood cell count for Rita Gordon;

(b) By failing to re-evaluate Mrs. Gordon several days after her admission when she developed a stiff neck and became lethargic;

(c) By failing to perform a neurologic evaluation; and

(d) By failing to perform a spinal tap.

Dr. Klawans also testified that the standard of care required that the foregoing be performed by the physicians at Illinois State Psychiatric Institute.

Finally, Dr. Klawans testified that the deviations from the standard of care caused injury to Rita Gordon. Dr. Klawans testified that Mrs. Gordons disease was allowed to progress to a much more severe state prior to its diagnosis and it made her medical course more complicated. She required renal dialysis and a tracheostomy for respiratory care and she sustained short-term memory loss. Dr. Klawans testified that earlier treatment would have spared Mrs. Gordon a coma and that earlier treatment could have prevented Mrs. Gordons anterior compartment syndrome.

After the hospitalization, Mrs. Gordon continued to receive outpatient physical occupational therapy for six to eight months. She has permanent scars from the tracheostomy and treatment for the anterior compartment syndrome. She did not return to work until March 17, 1980. The Claimants medical bills amount to $70,589.95.

Mrs. Gordon has no memory of her treatment at the Illinois State Psychiatric Institute. She does not engage in strenuous work at home. She has lost the desire for sex and her frequency of intercourse has diminished from three to four times a week to once or twice a month.

The only evidence presented by the Respondent was the introduction of Mrs. Gordons Illinois State Psychiatric Institute record. The Respondent called no physicians to dispute the standard of care, whether Respondent deviated from the standard of care, or whether the deviations were a proximate cause of Claimants injuries.

Immediately prior to the commencement of the hearing and before any evidence, the Respondent moved orally and inartfully for a directed verdict stating that the case was barred by the doctrine of res judicata. Claimants had previously filed a medical malpractice complaint in the circuit court of Cook County in Gordon v. Nasr (1989), 182 Ill. App. 3d 964, 538 N.E.2d 483. The circuit court ultimately granted summary judgment in favor of defendants. Claimants sued 32 defendants in the circuit court action. The Claimants appealed the decision to the first district appellate court. The appellate court affirmed the circuit courts decision. Gordon v. Nasr (1989), 182 Ill. App. 3d 964, 538 N.E.2d 483.

Claimants objected to Respondents motion for directed verdict based upon timeliness. Claimants also objected because the motion was not stated in writing and thus did not provide them with a fair opportunity to respond. Claimants argue that the circuit court never obtained jurisdiction over Dr. Nasr, therefore the summary judgment could not have been a decision on the merits as it relates to his conduct.

Respondents position is that Dr. Sudahyl Nasr and 31 other individuals were named defendants in the circuit court case. Respondent argues that the State, as a principal, acts as an indemnor of its agents. Respondent argues that the disposition of summary judgment is a disposition on the merits of the case.

Respondent may be correct that if the circuit court found Respondents agents to be without fault, then Respondent would escape liability, but in this instance, it appears that the circuit court did not have jurisdiction over all of the alleged agents of the State, including Dr. Sudahyl Nasr. The appellate decision indicates that, “only 16 defendants were remaining at the time the orders appealed from were entered.” (538 N.E.2d 484.) The appellate decision does not state whether Dr. Nasr was one of the remaining defendants, therefore it cannot be determined whether summary judgment was entered in favor of Dr. Nasr. Claimants’ reply brief names Dr. Nasr and 11 other individuals which were not subject to the summary judgment order.

Respondent has not disputed the assertion that Dr. Nasr was not a subject of the summary judgment order. Additionally, the affidavits relied upon by the circuit and appellate courts are not offered into this record and there is no indication what the exact statements of those affiants may contain. The Respondent failed to present enough evidence to the court to determine if the motion should have been granted.

It may be that the State should have argued that the cause should have been dismissed for failure of the Claimants to exhaust their other remedies. (Court of Claims Regulations, 74 Ill. Adm. Code, 790.60, 790.90.) This Court could find that the Claimants’ failure to follow Supreme Court Rule 220 against some of the defendants in the State court proceeding is a breach of Claimants’ duty to properly exhaust their remedy.

The Court’s problem is trying to determine the status of those defendants for which the circuit court did not have jurisdiction. If the 32 defendants were State employees, acting within the scope of their employment, then the State does not have an exhaustion of remedies defense. (See 24 — 5 Court of Claims Act, 740 ILCS 45/1, et seq.). However, if Dr. Nasr and the 11 others not subject to the summary judgment order were not State employees then there would be a defense for failure to exhaust other remedies for recovery.

There is no evidence that the Court can point to before the Court from which this Court can determine the employment status of those 12 State court defendants by a preponderance of the evidence. Therefore, the res judicata defense and the potential exhaustion of remedies defense must be denied.

Claimants have presented a prima facie case of medical negligence and the Respondent failed to rebut any of that evidence. Respondent did not present any witnesses. Respondent only offered into evidence the records from the Illinois State Psychiatric Institute.

The Respondent, by its physician employees, owed a duty to Claimant, Rita Gordon, to possess and apply the knowledge, skill and care that is ordinarily used by reasonably well-qualified doctors in similar circumstances. In order to prove medical malpractice, the Claimants had to prove that Respondent breached its duty and the breach was a proximate cause of injury. Borowski v. Von Sobbrig (1973), 14 Ill. App. 3d 672, 303 N.E.2d 146, 150.

Claimants presented Dr. Harold Klawans, a treating physician of Rita Gordon and a board certified neurologist. Dr. Klawans testified that he cared for Rita Gordon while she was a patient at Rush Presbyterian St. Lukes in 1979. He played a role in the diagnosis of Mrs. Gordon and the determination of her treatment. He diagnosed her, based upon clinical features and spinal fluid, as having viral encephalitis. Dr. Klawans stated that the condition could cause loss of memory and it is common for such patients to go into a coma. Dr. Klawans testified that the physicians and attendants to Rita Gordon at the Illinois State Psychiatric Institute deviated from the required standard of care. His interpretation of the medical records is that no white blood count was conducted, and if it was conducted, there is no mention of the results. He opined that several days after admission, when she developed a stiff neck, which is often a suggestion of inflammation going on within the central nervous system and was lethargic, she should have been completely re-evaluated.

Respondent cites Ondes v. State (1991), 43 Ill. Ct. Cl. 272 in support of the proposition that Claimant must show by a preponderance of the evidence that the injury was reasonably foreseeable, the likelihood of injury, the magnitude of the burden of guarding against it, and the burden on the State to guard against the injury. Ondes is not a medical malpractice case.

Respondent argues that after tests were run, physical exams given and notes made, Mrs. Gordon was diagnosed as suffering from acute schizophrenia. Further tests were to be conducted during her stay between January 17 and January 20, 1979, but Mrs. Gordon was recalcitrant and uncooperative. Respondent also states that her illness did not appear to be life-threatening.

All of the above circumstances, according to Respondent, would make it extremely difficult for anyone to reasonably foresee the likelihood of injury. Respondent notes that, "as soon as it was determined that Rita Gordon spiked a high fever of 104 degrees, she was immediately transferred to Rush Presbyterian St. Lukes Hospital after consultation with her family.” Respondent concludes that an injury was not foreseeable since a creation of a legal duty to a claimant requires more than a mere possibility of an occurrence. Cunis v. Brennan (1974), 56 Ill. 2d 372.

The problem with all of the States arguments is that the State presented no expert witnesses to support its arguments. All the State presents are arguments unsupported by testimony. As the Claimant presented a prima facia of medical negligence which Respondent failed to rebut with expert testimony, we must find that the Respondent owed a duty of care to care and treat Claimant within the standard of care of reasonably well-trained medical providers in similar circumstances in similar localities; that the Respondent breached that standard of care by failing to diagnose the viral encephalitis through appropriate diagnostic modalities; and that this breach was a proximate cause of Claimants injuries.

Claimants Exhibit No. 1 is a statement of account indicating that $63,745.75 in medical costs had been charged by Presbyterian St. Luke’s Hospital as of April 24, 1979. Claimants Exhibit No. 2 indicates that a total of $70,589.95 in medical expenses were incurred. Mrs. Gordon did not return to her job at the Illinois Department of Public Aid until March 17, 1980. Claimant testified that she was earning approximately $800 per month. Unfortunately, Claimants Exhibit No. 3, an employment record which was used to refresh the witnesses’ recollection, was not offered into evidence. Therefore, there is no verification of earnings. However, Mrs. Gordon did miss nearly 14 months of work.

The issue of damages is a difficult one because there is no allegation or proof that Respondent was in any way responsible for Mrs. Gordon’s viral encephalitis. Instead, it is alleged that the misdiagnosis caused her condition to become more extreme and complicated. It is not absolutely clear whether Mrs. Gordon would have experienced the renal dialysis and a tracheostomy for her respiratory care had the viral encephalitis been diagnosed and treated any time prior to January 20, 1979. Dr. Klawans testified that Respondent deviated from the standard of care which allowed Mrs. Gordon’s disease to progress to a much more severe state. This made it more likely that she would require a tracheostomy and renal dialysis. It was more likely it would take her longer to recover. She experienced six or seven months of therapy. She also has scars from the tracheostomy.

The Court finds that the total value of Claimant Rita Gordon’s claim is forty-five thousand dollars ($45,000). The Court finds that the total value of Claimant Vincent Gordon’s claim for loss of consortium is two thousand five hundred dollars ($2,500). No specific sum was requested by- Mr. Gordon and although there is some testimony to loss of consortium, the loss appears to have been temporary.

Wherefore, it is ordered that the Claimant, Rita Gordon, be and hereby is awarded the sum of forty-five thousand dollars ($45,000) and Claimant, Vincent Gordon, be and is hereby awarded the sum of two thousand five hundred dollars ($2,500).


source: Caselaw Access Project

author: Frederick, J. Frederick, J.

license: Public Domain

text:
    (Nos. 82-CC-0565, 84-CC-0375 cons.
    McCarthy Brothers Co. and The Waldinger Co., Claimants, v. The State of Illinois, Respondent.

      Opinion filed Feb. 21, 1995.

      Amendment to opinion filed April 28, 1995.

    Greensfelder Hemker Weise Gale & Chappelow and Thomas R. Lamont and Churchill, Nester & McDonnell, for Claimant McCarthy Brothers.
    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd. and William R. King and John A. Templer, Jr., for Claimant Waldinger Corp.
    Jim Ryan, Attorney General (Tom Gray, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

These two cases arose from the construction of the Basic Science Building for the University of Illinois College of Veterinary Medicine in Urbana, Illinois. The claims were consolidated into one claim from two original claims filed respectively by McCarthy Brothers Company in 1981 and the Waldinger Company in 1983. McCarthy Brothers Company (hereinafter referred to as “McCarthy”) filed its complaint with the Court of Claims on October 13, 1981, seeking $97,633.95 in damages from the State of Illinois, through its agency, capital development board (hereinafter referred to as “CDB”), for damages it incurred as a result of the Respondent’s alleged breach of contract. The Waldinger Company (hereinafter referred to as “TWC”) filed its complaint in the Court of Claims on September 1, 1983. TWC then amended its complaint on September 24, 1983, seeking $709,929.03 in damages from the State for damages incurred as a result of the breach of contract by the Respondent. The Court consolidated the two claims on May 11, 1984.

A trial was held before the Commissioner assigned to the case on the following dates: July 13 through 14, 1992, and July 20, 1992. The evidence in this case is voluminous and consists of hundreds of pages of contract documents, award letters, construction plans and designs, correspondence among the parties and other contractors, engineers and architects, photographs of the construction site, depositions, joint stipulations to uncontested facts, and the report of the proceedings.

The Facts

The construction project which is the subject of this litigation is the Basic Science Building of the College of Veterinary Medicine at the University of Illinois in Urbana, Illinois. In 1979, the Capital Development Board issued a series of contracts to the significant contractors as required under Illinois law. Construction was to proceed under two distinct phases, being Phase I and Phase II. Phase I involved site preparation and the erection of structural steel and concrete frame. Phase II principally involved the exterior and interior finishing of the structure.

McCarthy was awarded the contract to perform Phase I structural work and entered into a contract dated July 27, 1979, with CDB. In addition to erecting the structural frame for the building, McCarthy was to provide the Phase I “Temporary Utilities.” The CDB set forth all requirements in the project manual. Howard Peters was in charge of the field work for McCarthy. TWC entered prime contracts under both phases of the construction. Under Phase I, TWC entered a contract with the CDB for the construction of underground utilities. Under Phase II of the project, TWC entered contracts with CDB for heating and ventilation. Richard Wyninger was in charge of the field work for TWC. The work began in the early fall of 1979.

CDB s senior project manager for the project was Eugene Barish. As the senior project manager, he was the employee of CDB. Mr. Barish was responsible for monitoring the progress of the work. He was also acting as liaison between the architect-engineer, the prime contractors, the using agency, CDB and each of them for acting on any changes and work orders.

The architect-engineer for the project was Lester B. Knight & Associates, Inc. (hereinafter referred to as “Knight”). As architect-engineer, Knight was CDB s representative for the purpose of observing the work for conformance with the plans and specifications. Knight was also responsible for processing and approving all change orders issued in connection with the work on the project. Knight’s contract provided that the “Architect-Engineer shall prepare when authorized by CDB, minor modifications and applications for change orders * 8 * and shall review and make recommendations on contractor’s proposals.” John Larson was the on-site representative for Knight. Scott Lawson was the designated Knight project architect.

In performance of its Phase I contract, TWC interfaced with McCarthy’s work and certain of TWC’s work was dependent upon the prior completion by McCarthy of its work. The same was true with respect to the Phase II contracts of TWC. McCarthy was responsible for constructing the basement foundation walls, the basement floor slab, driving certain pilings immediately adjacent to the basement walls, and backfilling the walls. A third contractor, C. Ibe'r and Sons, was responsible for the placement of the first floor concrete slab.

McCarthy commenced work on the project on October 1, 1979. During the performance of its Phase I work, McCarthy failed to maintain its scheduled performance, due to a problem in the driving sequence of certain piles causing movement of the adjacent walls. This delayed the performance of other Phase I and Phase II contractors, such as TWC. The problem with the driving sequence is at the heart of this litigation. The construction plan contained a Drawing S-l which set the special pile driving sequence McCarthy was instructed to follow. Drawing S-l specified that McCarthy would not drive the pilings immediately adjacent to the foundation walls until after the walls were poured and backfilling was complete.

As work proceeded through 1979, McCarthy informed CDB that the special driving sequence posed serious problems and should be changed. McCarthy specifically noted the sequence would cause delays in the completion of work and that if the walls were backfilled prior to driving the piles, the walls would move during the pile-driving sequence. Beginning in November 1979, McCarthy requested CDB and Knight to change the sequence; however, the requests were denied.

Pursuant to Drawing S-l, Foundations, section 2, McCarthy was contractually required to brace the basement walls * * to resist soil pressure until floor systems are completely poured.” Included in its bid price was the only bracing system and materials described in the contract documents and actually provided to the project, to wit: a conventional lumber bracing system typically used on similar type projects with shoring on the top walls. On January 15, 1980, McCarthy advised CDB and Knight that the pressure exerted on the basement walls as a result of the pile-driving operation would greatly exceed the pressure of the soil. McCarthy restated that they were only required to provide bracing sufficient to resist soil pressure, not to resist the force resulting from the pile driving. At this time, McCarthy requested Knight and CDB to provide it with direction for bracing the basement walls to resist the force of the pile-driving sequence.

On January 16, 1980, Knight advised McCarthy that it would provide McCarthy with direction respecting the bracing needed to resist the force of the pile driving. Two days later, Knight changed its mind and informed McCarthy it would not give any direction on bracing. McCarthy repeatedly through February 13, 1980, to July 1980 requested that it be permitted to drive the pile before the basement walls were poured and backfilled in order to avoid the problem. C. Iber and Sons, Inc. joined McCarthy in these requests. Knight refused all requests to change the pile driving sequence.

Mr. Scott Lawson, the Knight project architect, testified that it was his belief that Knight, at the time the bracing questions were being raised, made an assessment as to whether any type of temporary bracing could be effective to maintain the integrity of the walls and that the assessment was in written form. Mr. Lawson further believed that Knight assessed what loads would be put against the wall under the existing conditions. Mr. Lawson acknowledged that he felt that McCarthy’s requests to Knight to provide direction as to what loads would be applied on the walls (the design parameters) was a reasonable request. McCarthy could reasonably request that Knight provide McCarthy with engineering criteria which would then be utilized by McCarthy to determine the construction materials that would be required.

In adherence with Knight’s and CDB’s refusal to change the sequence, McCarthy performed the work in strict accordance with the special driving sequence contained in Drawing S-l. The basement walls were erected from April through June 1980 and immediately braced to resist soil pressure. On July 22,1980, McCarthy commenced driving the last row of pile, the one closest to the walls. At no time did CDB or Knight object to McCarthy’s bracing system even though each clearly observed the system on site. Shortly after resuming pile driving, the walls moved. On July 22, 1980, Knight informed C. Iber and Sons, Inc. that the wall moved because “* * * the amount of bracing provided to keep the foundation walls in line is inadequate * *

On July 23, 1980, McCarthy advised Knight and CDB that the bottom of the foundation walls had now moved, that the pile driving sequence should have been changed, and that an extremely large and sophisticated bracing system would have been needed to protect against the pile driving sequence. Knight took the position on July 23, 1980, that the McCarthy bracing system should have been sufficient to resist soil pressure and vibration from pile driving. As a result of the wall movement, CDB directed Knight to conduct an investigation of the movement and directed McCarthy to cease further work in the area of the wall movement and to remove the backfill from around the basement walls. The CDB took the position on July 30, 1980, that McCarthy was responsible for the wall movement. CDB refused to pay McCarthy any additional compensation for removing the backfill. CDB takes the position that section 02350 of the Project Manual required McCarthy to protect other construction from pile driving operations.

McCarthy did not believe the wall movement and associated costs was its responsibility, because the work had been performed in accordance with the construction documents; the walls were poured in correct location and braced to resist soil pressure and no movement occurred until after backfilling. Further, McCarthy believed it was free from responsibility because it had warned CDB, Knight and others as early as January 1980 that problems would occur as a result of the special drilling sequence.

On August 5, 1980, Knight, pursuant to CDB s direction to investigate the wall movement, engaged Danner & Associates, Inc. to perform surveying work on the basement walls and columns, George A. Kennedy and Associates, Inc. to perform structural engineering services, and A & H Engineering Corporation to investigate the existing condition of the pile caps adjacent to the basement excavation. On August 28, 1980, A & H informed Knight that the vertical load bearing capacity of the pile groups was not adversely affected, and structural steel could be erected upon them. McCarthy had expressed that same opinion as early as October 1979 that a change in the sequence would not adversely affect the vertical load bearing capacity of the pile groups. McCarthy had maintained from the date the walls moved that the structural steel could be erected because the bearing capacity had not been affected.

Knight had maintained from the outset that the piles could not be driven before erection of the walls because the piles relied on friction for their structural integrity which would be compromised if the special driving sequence was not followed. A & H s report concluded that Knights concerns were not well based, lacked substance, and that there was no basis for the special driving sequence, compliance with which resulted in movement of the wall as predicted by McCarthy. A & H also made a recommendation that prior to starting any backfill around the basement wall, the first floor framing be placed and, if possible, the first floor slab installed before backfill was placed. The George A. Kennedy and Associates, Inc. report found that the walls were not poured as shown in the contract drawings. On September 16, 1980, Knight accepted the conclusions and recommendations of its consultants, including the revised procedure for installing the first floor structural slab and basement slab to provide lateral stability for the basement walls before starting any backfilling.

The contract documents required that builders risk insurance be purchased and maintained until substantial completion of the project. McCarthy obtained such an insurance policy. McCarthy took the position that all costs resulting from the wall movement were covered by, and reimbursable under, the builders risk insurance policy. As early as August 28, 1980, CDB was aware of the possibility that said expenses would be covered by the builders risk insurance. On October 2,1981, McCarthy filed a claim for reimbursement of costs, losses, expenses and damages incurred by McCarthy in connection with the wall movement. McCarthy recovered $70,000 of its $71,792.67 claim from the policy. CDB made no claim on the builders risk claim.

CDB claims it incurred $33,642.99 in added costs, losses or expenses as a result of the wall movement. CDB s project manager, Eugene Barish, could not, however, state why all expenses had been incurred or why they should be charged to McCarthy. The claim arose out of the same incident or occurrence which gave rise to the claim which McCarthy submitted on the builders risk insurance policy. McCarthy requested CDB to file a claim under the policy. CDB refused to file a claim and assessed the expense to McCarthy. The contract documents provided that CDB waives all rights against McCarthy for damages caused by any peril to the extent the loss or claim is covered by builders risk insurance. McCarthy again informed CDB the deduction was incorrect and that CDB should look to the insurance policy for reimbursement.

McCarthy also has a claim against the CDB for an outstanding contract balance amount due. As set forth in its final pay request dated January 31, 1984, McCarthy’s adjusted contract amount totalled $2,941,068.50. CDB total payments to McCarthy account for $2,935,064.54, leaving a balance due McCarthy in the sum of $6,003.96.

McCarthy also has made a claim against the CDB in relation to the temporary electrical power system McCarthy installed during Phase I of the project. McCarthy contracted to provide Phase I “Temporary Utilities.” McCarthy was to provide and maintain specified temporary utilities for specified times during the construction period. Electricity was one of the utilities to be provided. The project manual described the electric system to be followed, which was not the one originally described in the bid documents. The power level of the electricity was to be sufficient to meet Phase I construction needs. No individual contractor performing Phase I work requested electrical power in excess of that provided by McCarthy.

After completion of Phase I, McCarthy was to turn over to the Phase II general contractor responsibility for providing and maintaining temporary utilities. The project manual set forth the same terms regarding the Phase II temporary electrical services for the general electrical contractor, Commonwealth Electric Company as the Phase I terms applicable to McCarthy except for an increased number of journal boxes.

McCarthy brought electrical power to the construction site through the University of Illinois. An agreement to use the university’s electrical lines for power was reached. McCarthy then subcontracted with Aladdin Electric to install a system to supply and distribute temporary electric power for Phase I construction needs. The total cost incurred by McCarthy in supply and maintaining Phase I temporary electric service was $5,222. The Phase I temporary utilities were turned over to C. Iber & Sons, Inc. on November 9, 1979, at which point the Phase II Electrical Contractor took over responsibility for providing temporary electric service. C. Iber & Sons, Inc. wrote to McCarthy on February 28th asking McCarthy to install the temporary electrical system described in the project manual. McCarthy replied that the temporary electrical system it had installed had been approved by Knight and CDB in accordance with the contract documents.

Knight responded to McCarthy by stating that McCarthy was obligated to supply the specified minimum electrical system set out in the Phase I project manual regardless of construction needs. CDB concurred with Knight’s assessment. CDB gave McCarthy notice that if it did not begin to install the specified minimum electrical system, a deduction would be made in the amount due McCarthy equal to the cost of hiring another contractor to install the electrical system. McCarthy did not respond and CDB hired Commonwealth Electric Company to finish installing a temporary electrical system at a cost of $47,000. The system installed by Commonwealth was materially different from the system described by the project manual for either Phase I or Phase II. CDB issued a deduction from the amount due to McCarthy in the sum of $47,000. CDB also issued a deduction in the amount due McCarthy in the sum of $10,987 for the cost of contracting with Illinois Power Company to bring electricity to the construction site.

TWC was a contractor on both Phase I and Phase II of the project. When the walls moved as a result of the driving sequence, the schedule for work performance was affected for all prime contractors, including TWC. By reason of the failure of the basement walls, the remaining performance of the Phase I construction, already delayed by reason of McCarthy’s delayed performance, and the construction of the Phase II work were significantly impacted. Extended delay to the project occurred during assessment and correction of the wall failure, changes in sequencing of the work occurred which essentially eliminated a normal construction schedule, and extensive work on the project was required to be performed during exposure to winter conditions. Under the original project schedule, all of such work would have been performed within a structure closed to the weather.

Scott Lawson of Knight acknowledged that a substantial reason the project was not on schedule at the end of 1980 was due to the problems encountered with McCarthy’s work in Phase I. He further acknowledged that work on the project was then accelerated with the architect and CDB still trying to meet a completion date from the original schedule and looking at ways to compress that schedule because of the project delay which had occurred. All of the major prime contractors on Phase II work notified CDB that they would seek reimbursement for their added costs attributable to the project delay, resequencing and acceleration. CDB was timely and properly advised by TWC as to the fact that TWC sought time extensions and would seek reimbursement for costs. Claims subsequently filed by TWC in connection with the three contracts it held were timely and properly filed.

No time extensions for the contract time associated with the wall failure or other delayed performance by McCarthy were ever granted by CDB. CDB elected to accelerate the contractors performance of the project following the wall failure in order to reduce the amount of project delay which would otherwise occur. The accelerated work, together with the project delay and the work having to be performed out of sequence, resulted in substantial impacts on major portions of the labor work of TWC. Under the contract documents, CDB was obligated to grant time extensions to TWC for unreasonable delays in time of performance of the project. The backfilling was 7Vz months delayed. The pouring of the grade beams and walls were five months delayed and the pouring of the slab on grade in the basement was 5Vz months delayed. The completion of the structural steel was six months delayed.

Wagner, Hohns, Inglis, Inc., a nationally-known consulting firm which provides CPM scheduling, project management and consulting work in claims analysis throughout the United States, was employed to develop the Critical Path Method scheduling for the project. William Wagner is one of the principles hired by C. Iber and Sons, Inc. Mr. Wagner testified about the scheduling problems associated with the wall movement delay. He periodically gave updates on the scheduling project. In the third update report, he concluded that the final completion date was 162 days later than the revised contractual completion date of April 6, 1982, and stated: “All Phase II contractors should be granted an extension of time in the above amount to compensate for delays due entirely to lack of progress by the Phase I contractor.” Mr. Wagner showed charts demonstrating the numerous scheduling changes disrupting the normal construction sequence for TWC on both of its Phase II contracts requiring work to be performed out of sequence and on different floors, contrary to normal construction practice. He explained the inefficiencies connected with the performance of the work in that respect and how manpower productivity particularly would be adversely affected. TWC’s Phase II ventilation contract was adversely affected by moving the completion date by 9Vz months. Mr. Wagner testified that the six-month delay in Phase I work of McCarthy resulted in a ten-month delay to the Phase II contractors.

The project manual and the standard documents for construction contain provisions that a contract time is of the essence. Article 4, section 4.10D states that,

° ° extensions of the contract time will be made for delays which affect critical items on the construction schedule arising from unforeseeable causes beyond the control and without the fault or negligence of tire contractor or of his subcontractors or suppliers, including, but not restricted to: Acts of CDB, the Architect-Engineer or’". Acts of other contractors in tire performance of a contract with CDB ° °

Under the contract documents, CDB was obligated to grant extensions of time to TWC to which it was entitled for the three contracts it held on the project. CDB was also obligated to contractors for added costs associated with the acceleration of its work by the CDB. Each of the three contracts contained a time-is-of-the-essence clause. Guy Cast, vice president of operations for TWC, testified regarding the claims of TWC. Mr. Cast, in detailed testimony, explained each element of the claim and the manner in which it had been calculated, the business records of TWC which had been utilized in obtaining the data, and also the analysis of the data. Most of the damage items related simply to the extended contract time attributable to the delay caused by the untimely performance by McCarthy of its Phase I contract and the resulting unavailability of the site for performance of work by TWC in performing its contracts.

Mr. Cast explained in detail the various ways in which the labor of TWC was adversely affected during performance of its Phase I contract for site utilities and then addressed the manner in which that adverse impact on labor productivity was determined. He discussed the use of what is called bulletin 58, “Factors Affecting Productivity,” a publication developed by the Mechanical Contractors Association of the United States. Similar testimony was received relating to the Phase II contracts.

TWC seeks to recover from the CDB damages and compensation under its site utilities contracts the sum of $91,795; TWC seeks to recover from the CDB damages and compensation under its heating contract the sum of $399,988.03; and TWC also seeks to recover from the CDB damages and compensation under its ventilation contract the sum of $218,146. The total amount being sought by TWC is $709,929.03 as a result of the CDB denying any extensions of time and subsequent acceleration of the project impacting on TWCs labor efficiency, expenses and costs.

The Law

The Claimant, TWC, points out in its brief that the CDB had, through its counsel on May 11, 1990, filed a motion for summary judgment. TWC argues that the law on admissions by a party in a pleading is applicable in this case and sets forth the admissions of the CDB which it argues are binding upon the Respondent. (Chimerofsky v. School District No. 63 (1970), 121 Ill. App. 2d 371, 374.) In the motion for summary judgment, the Respondent stated as follows:

“The evidence supports the facts that McCarthy Brothers did in fact follow die design specifications of die A/E on die project. The walls, which were die true cause of die delay on the project, were due to faulty design administration by Knight.”

The Motion goes on to state:

“There can be no doubt then, that the delay claim which claimant (TWC) pursues against the CDB, has as its root, the unfortunate compliance with the A/E’s design specifications by McCarthy Brothers. Under the cases cited above, The Waldinger Company had a valid claim against Lester B. Knight & Associates for design negligence."

The project manual and contract documents expressly provide that a contractor will be entitled to damages or compensation from CDB through an adjustment of its contract sum for unreasonable delays caused by CDB or the architect-engineer. The statements set out in the motion for summary judgment are binding admissions by the Respondent. In State Security Insurance Co. v. Linton (1978), 67 Ill. App. 3d 480, 384 N.E.2d 718, 721, the court stated: * * that once a statement of fact has been admitted in the pleadings, it constitutes a judicial admission, it is binding on the party making it, and it makes it unnecessary for the opposing party to introduce evidence in support thereof 6 0 These admissions have not been withdrawn by the Respondent and are not alternative theories. They therefore became judicial admissions for purposes of this action and are conclusive as to the matters admitted. Beccue v. Rockford District (1968), 94 Ill. App. 2d 179.

Pursuant to the contract between McCarthy and CDB, McCarthy owed CDB the duties to (a) perform its scope of work in a reasonable workmanlike manner and (b) follow the plans and specifications issued to it by CDB. (Economy Fire and Manufacturing Co. v. Raymond Concrete File Co. (1940), 111 F.2d 875, 878 (7th Cir.).) McCarthy has presented substantial and persuasive evidence respecting its reasonable workmanlike manner. McCarthy made attempts to convince the CDB and Knight that the pile-driving sequence would cause a problem in shifting the walls. McCarthy was denied in its efforts to change the sequence. McCarthy followed the pile-driving construction plans despite its concerns, because McCarthy was not allowed to change the sequence by the CDB and Knight. McCarthy supported the wall with a bracing system of the type customarily used in performing work of the nature being performed by McCarthy on the project. Moreover, the bracing did, in fact, hold the walls in place and “resist soil pressure” as required by the contract documents.

“Contractors have no right to depart from working plans made part of tire contract. If they do so, it is at their peril, and they become guarantors as to the strength and safety of the structures ' * An express contract admits of no departure from its terms, and the subcontractors could discharge themselves from liability only by constructing the buildings in accordance with the plans and specifications, unless a deviation was mutually agreed upon.” Robert G. Regan Co. v. Fiocchi (1963), 44 Ill. App. 2d 336, 194 N.E.2d 665, 668.

McCarthy was obliged to construct the piling and foundation walls in the manner and sequence specified in the contract documents. As long as McCarthy complied with the contract requirements, it was not responsible for the movement of the wall.

Claimant, McCarthy, relies heavily on the case of St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925, 316 N.E.2d 51. In St. Joseph, supra, the contractor provided the exact paneling specified by the architect only to subsequently learn that the specified material did not comply with applicable building codes. At issue was: “when an owner through its agent architect directs the contractor to install certain material does not the owner impliedly warrant to the contractor that the material is suitable?” The analogy is drawn that similarly when an owner, through its agent or architect, directs the contractor to perform its work in a specific and mandatory sequence, does not the owner impliedly warrant to the contractor that the sequence is suitable? The case sites to 6th Williston on Contracts, “° * * though the builder may be liable if he fails, by reason of defective plans furnished him, to complete work which he has undertaken, yet if he can and does complete it according to the plans he is not liable for subsequent inferiority, injury, or destruction of the work, due to the defective character of the plans.” The Court determined that “* * * the defective plans and specifications causing the difficulty were issued by the owners architect, not the owner, and yet the court in such cases held that the owner was bound and that the contractor who followed them was not liable to the owner.” 316 N.E.2d at 65.

McCarthy was required to follow the plans provided by CDB and, therefore, is not liable for errors or defects in the plans and specifications. CDB, as owner, warrants the adequacy and accuracy of the plans and specifications. (United States v. Spearin (1918), 248 U.S. 132.) The plans and specifications issued to McCarthy by CDB were defective in that McCarthy’s compliance with the Special Driving Sequence set forth on Contract Drawing S-l resulted in the movement of the foundation walls. CDB admitted this in its motion for summary judgment and the evidence presented supports this conclusion.

Upon discovery of this defect during Phase I, McCarthy reasonably notified CDB and its architect of the defect, warned of the damage that would result, and requested that the sequence be changed. CDB refused McCarthy’s requests as a result of which McCarthy strictly complied with the sequence and, predictably, the walls moved. Respondent has argued that McCarthy failed to protect other construction from pile-driving operations, failed to present a change order, and did not pour the walls as shown in the contract drawings. McCarthy is not fully at fault for the movement of the foundation walls and is not fully responsible for the cost incurred by CDB as a result of the wall movement.

CDB’s costs incurred, as a result of the wall movement were covered by the builders risk insurance policy. Whatever the reason for CDB’s unwillingness to submit a claim, its refusal to do so resulted in a waiver of its right to assess its costs against McCarthy by virtue of General Condition 5.006.H of the contract documents. CDB’s deduction of $33,642.99 from McCarthy’s contract to reimburse CDB for the costs incurred as a result of the movement of the foundation constituted a breach of the contract.

McCarthy also has a claim for payment of the contract balance alleging CDB has failed to pay the balance of $6,003.96. CDB presented no defense respecting its failure to pay. CDB’s failure to so pay McCarthy constitutes a breach of contract.

The final claim McCarthy has made against CDB is regarding the temporary electrical system that CDB billed McCarthy for when CDB determined that the system McCarthy installed was not sufficient nor within the contract requirements. Phase I bidders were advised that “the designated contractor shall pay all costs of installation, operation and maintenance, restoration and warranty extension of temporary utilities” until “assignment to the General Contractor for Bid Package II occurs” at which time “all temporary materials and equipment shall be turned over to the General Contractor for Bid Package II.” The Bid II documents were not issued at the time of the Phase I bid. The contract document set forth an addendum stating the deletion of instructions to install the system “* * ° where shown on the drawings.” This addendum served to confirm to McCarthy that the temporary electric specification was a performance specification related to Phase I construction needs rather than a detailed design specification which located the system throughout the project for service to both Phase I and II contractors.

Knight originally agreed with McCarthy’s position that Bid Package I only required McCarthy to provide temporary electric for the reasonable needs of the Bid Package I bidders for work to be performed during the Phase I construction. It was the Phase II electrical contractor who urged CDB to find McCarthy was required to provide a more expansive electrical system whether or not needed by the Phase I contractor. CDB thereafter demanded that McCarthy install a much more comprehensive system. When McCarthy failed to do so, CDB had the Phase II electrical contractor install an adequate system for the Phase II construction needs. The system was not the one described in the specifications because all parties agreed that such a system was too elaborate, expensive and far beyond the construction needs of the project.

McCarthy’s understanding of its requirement for an electrical system was that if the needs of the Phase I contractors exceeded what McCarthy installed, then those portions of the specifications containing details of temporary electrical system would come into play, then and only then. The specification left it to the skill, experience and risk of the bidder to evaluate the construction needs accurately. If the estimate proved too low in relation to actual needs, McCarthy would be obligated to supply, at no cost to CDB, a system within the parameters detailed to meet the needs of Phase I of the project.

The specification is ambiguous in that McCarthy interpreted the specification as a performance specification requiring McCarthy to provide an electrical system sufficient to meet Phase I construction needs rather than CDB’s subsequent interpretation that the Temporary Utilities specifications were design specifications instructing McCarthy as to each and every component of the system to be provided. The Claimant argues that the rule of contra proferentum is applicable. The contract must be construed most strongly against the drafter. Under the rule of risk of ambiguity, lack of clarity and absence of proper warning is on the drafting party which could have forestalled the controversy. The rules pushes the drafters toward improving contractual forms, and it saves contractors from hidden traps not of their own making. Sturm v. United States (1970), 421 F.2d 723 at 727.

Under McCarthy’s interpretation, there is no duplication of facilities, or duplication of payment or windfall benefit to either side. The temporary electric needed and necessary for Phase I was provided by the structural contractor, and the temporary electric needed and necessary for Phase II was provided by the electrical contractor. This result is reasonable, conforms with trade usage, and is consistent with the public building policy and elimination of contingencies, duplication and waste in the construction of public works. It would be unfair to allow CDB to reap the benefit of McCarthy’s decision to undertake that risk in the form of a reduced bid while at the same time requiring that it provide a temporary electric power system far in excess of the construction needs. CDB’s deduction of $57,987 from McCarthy’s contract to reimburse CDB for the costs incurred to provide more elaborate temporary electrical power than needed for Phase II construction needs was wrongful. McCarthy argues that its claim for the electrical system should be granted for $57,987.

In regard to TWC’s three claims, the Court’s attention is directed to the Standard Documents for Construction, where it is provided in article IV, section 4.10(B) that,

“Extensions of the contract time will be for delays which affect critical items on the construction schedule arising from unforeseeable causes beyond the control and without the fault or negligence of the contractor ® * “ including acts of CDB, tire architect-engineer ° * e or 1 ° ° acts of other contractors in the performance of a contract with CDB ° ° e.”

The record clearly indicates that the delays experienced by TWC under its three contracts and for which the claim is made in these proceedings, result mainly from actions or failure to act on the part of CDB, Knight or a contractor under direct contract with CDB. The CDB clearly recognizes this in its own admissions that the delays were caused by the inaccuracy of the driving sequence set by Knight. Control over this sequence was clearly out of the hands of the Claimant, TWC.

The purpose of the obligatory extension of contract provision is to relieve the contractor affected from its scheduled time of performance thereby avoiding acceleration of its contracts with all of the attendant labor and inefficiencies described in the trial proceedings. The timely granting of an extension of time also provides to a contractor such as TWC the ability to schedule its work in accordance with a planned schedule rather than incurring delays, as in the present case, because of a total project being performed out of sequence.

The CDB, having chosen not to perform its obligations to grant time extensions under the contract with TWC, now cannot claim that TWC cannot recover against the CDB for damages. Under Illinois law, a party who materially breaches a contract cannot take advantage of the terms of a contract which are to its benefit. Goldstein v. Lustig (1987), 154 Ill. App. 3d 595.

The Claimant, TWC, comments on the States failure to produce several key witnesses, including Gene Barish, the CDB’s project manager for the site. Gene Barish made admissions in the deposition that there were in fact project impacts and they were of serious extent, resulting to TWC from McCarthy’s delayed performance and the wall failure. The case of Tepper v. Camp (1949), 76 N.E.2d 490 established the “missing witness rule.” The principle of the rule is that failure of a party to produce evidence available to that party and which testimony could have been produced if that party’s position was true, would give rise to a presumption against the party.

The missing witnesses in this case are pointed out by Claimant as Gene Barish, John Larson and Scott Lawson. Howard Peters, the McCarthy project manager, had several conversations between himself and these three persons during which he told them that McCarthy was not going to provide bracing beyond that necessary to resist lateral soil pressure, that the bracing which McCarthy would be using would not be adequate to withstand the resumption of pile driving, and that the walls would fail when pile driving resumed. All three of these individuals were within the control of the Respondent to produce at trial. The Claimant argues and reasonably so that the presumption must be recognized that if any of the three individuals had been called, their testimony would have been unfavorable to the Respondent. They would have had to acknowledge that the subject conversations did, in fact, occur.

The Claimant, TWC, has clearly established a basis for damages on its three contracts. Mr. Cast explained how the figures were calculated. The method follows the procedures set out in the industry by Bulletin 58. The law states that where there is a lack of certainty or precision as to the amount it is not fatal to the recovery, providing there is a reasonable basis for computation of the damages. Jackson v. United States (1987), 12 Ct. Cl. 36; Bookman Printing & Services, Inc. v. Baldwin-Gregg, Inc. (1991), 213 Ill. App. 3d 516.

The Claimant, TWC, has argued that it should receive $91,795 for damages on the site utilities contract, $399,988 on the heating contract, and $218,146 on the ventilation contract. Most, if not all, construction projects will have some delays. Projects with multiple contractors requiring coordinated efforts are more likely to have delays. In this case, the majority of the delays are attributable to the architect-engineer and CDB. Much less delay is attributable to the contractors. For a delay to be tolerated, it must be reasonable under the circumstances. Much of the delay on this project was beyond reasonable. (K & S Associates, Inc. v. State (1991), 43 Ill. Ct. Cl. 117.) As this Court found in K ir S Associates, Inc., supra, we do not believe that the damages are computable to the penny as Claimants have tried to show. With the fact that some delay is reasonable and inevitable and the inherent speculative nature of computing losses in construction cases, we must try to find a fair figure for damages after weighing the evidence as is the Courts responsibility. Neylon v. State (1985), 39 Ill. Ct. Cl. 65.

We are also confronted with the fact there was no proof from the insurance company that the builders risk claim would have been allowed for CDB and what part of the electric system construction could reasonably be charged to McCarthy. Admittedly the figure of damages may appear arbitrary but the damage figure we find is the result of the Courts extensive review of all the evidence and taking into account the aforesaid variables peculiar to construction project cases. We believe our findings of damages are fair under the peculiar circumstances of this case.

For the foregoing reasons, we find that Claimant, McCarthy Brothers Company should be compensated in the sum of $76,154.88 and that Claimant, the Waldinger Company should be compensated in the sum of $582,141.80.

Finally, as is often the case, the question of entering an award remains before the Court. This Court cannot enter an award unless sufficient funds remain released and unexpended in the appropriation made to fund the project. (Lowenburg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) There is no evidence before the Court from which the Court can determine if appropriated funds remain from which to make an award. We are also concerned that the case was on general continuance and there is no evidence from which the Court can determine if the Claimants or either of them had successful claims against other entities which would reduce the awards. Therefore, before entering an award for the Claimants or making a recommendation to the General Assembly, we need additional information. Respondent is ordered to file the fiscal data on this project, including the balance of released funds which lapsed at the conclusion of this project so that the Court can determine what amount of award can be made, if any. Respondent shall file this information with the Clerk of Court within 21 days. The Claimants shall each file with the Court within 21 days a statement regarding claims made against other entities for these same damages and the results of those claims.

AMENDMENT TO OPINION

Frederick, J.

This claim is before the Court following the entry of the opinion hereon of February 21, 1995, and following the parties’ compliance with the instructions issued at the conclusion of that opinion. The Court finds:

(1) That the Claimants have received no funds from collateral litigation which can be used to offset the damages.

(2) A total of $1,003.96 of 141 CDB bond fund money lapsed on the McCarthy Brothers Company contract and $5,000 was held in its retention trust account. The CDB has agreed to release the money in the retention trust account.

(3) No funds lapsed or are otherwise available to pay the damages suffered by the Waldinger Corporation.

(4) The Court is restrained to limit the awards in these claims to $6,003.96 for McCarthy Brothers Company and to $0 for the Waldinger Corporation.

(5) For purposes of potential future consideration of these claims by the General Assembly we reiterate our findings on page 21 of the February 21, 1995, opinion and hereby advise that McCarthy Brothers Company should be compensated $76,154.88 less the $6,003.96 which will be awarded and the Waldinger Corporation should be compensated $582,141.80.

Wherefore, it is hereby ordered that McCarthy Brothers Company is awarded $6,003.96, $5,000 of which is to be paid through the actions of the CDB with respect to the retention trust fund and $1,003.96 is to be paid with 141 bond fund money; the Court is constrained to, and hereby does, deny an award for all other damages heretofore found to be suffered by both parties.


author: Patchett, J.

text:
    (No. 82-CC-1139
    Mediscreen Corp., Claimant, v. The State of Illinois, Respondent.

      Order filed May 10, 1995.

    Kovitz, Sifrin & Waitzman (Richard W. Hills-BERG, of counsel), for Claimant.
    Jim Ryan, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

Claimant Mediscreen Corporation brought this claim on December 3, 1981, seeking payment of $78,400.93 for services rendered on behalf of the Respondents Department of Public Aid (hereinafter referred to as DPA). In February of 1986 the Claimant filed a motion for summary judgment, essentially seeking to have the Court enter a default judgment in the case. The Respondent had filed no responsive pleading other than the general denial by rule up to that time. The case had been set for hearing and continued on 15 separate occasions. On April 7, 1986, an order was entered which gave the Respondent 45 days to file a response to the merits of the claim and denied, with leave to renew, the motion for summary judgment, should the Respondent fail to comply with the order.

Although the Claimant’s motion had been denied, the Respondent filed a response to Claimant’s motion for summary judgment. Therein the Respondent stated that State of Illinois warrants were issued pursuant to vouchers which comprise the attachments to Claimants complaint. The Respondent attached certified copies of paid warrants totalling $47,514.10. The unpaid warrants were said to have escheated or been vouchered and the time allowed for seeking replacement thereof had expired. Thus Respondent concluded its response by arguing that the statute of limitations had run on the unpaid portion of this claim and asking for summary judgment in its favor.

No reply to the Respondents pleading was filed. We will construe that pleading to be a cross-motion for summary judgment.

Although warrants were issued in payment for the services giving rise to the claim at bar, it is clear to us that the Respondent has not actually paid for all of the services. The fact that warrants were issued is an admission that the services were satisfactorily performed and that the Respondent owed the money. Not paying for services is a breach of contract. Such causes of action are governed by a five-year statute of limitations. Judgment will be entered in favor of the Claimant for the unpaid balance of the claim.

Wherefore, it is hereby ordered that the Claimant be, and hereby is, awarded $30,886.83, payable with general revenue fund money.


author: Sommer, C.J.

text:
    (No. 82-CC-1497
    The Illinois Municipal League and The Illinois Association of Counties, Claimants, v. The State of Illinois, Respondent.

      Opinion filed December 22, 1994.

    Beth Anne Janicki, for Claimant.
    Roland W. Burris, Attorney General (John Simpson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This claim can be characterized as having two different aspects as stated by count I and count II of the amended complaint.

In count I, the Claimants are requesting interest on an administrative fee withheld by the State on collection of the county retailer's occupation tax (GROT) and the municipal retailer’s occupation tax (MROT). The supreme court had previously ruled that the effective date of legislation reducing the 4% administrative fee to 2% was December 5, 1974. The State contending that the effective date was at the beginning of the fiscal year, charged the full 4% fee until June 30, 1975. The State was ordered to pay back the 2% overwithheld for the period December 5,1974, to June 30,1975.

The municipalities and counties then brought an action for interest on the amount of the 2% fee overwithheld. (City of Springfield v. Allphin (1984), 82 Ill. 2d 571.) After stating the general principal that interest is not recoverable absent a statute providing for it, the supreme court entered into a detailed discussion of the application of various possible interest statutes. The Court concluded that interest statutes are to be strictly construed and that the possible statutes did not apply, nor could interest be imposed on equitable grounds, as such would be “contravention of sovereign immunity.” The Court then ruled that “There being no method in law or equity by which interest can be awarded to the plaintiffs, the orders of the circuit court of Sangamon County awarding interest to the plaintiffs in these consolidated cases are hereby reversed.” City of Springfield, supra, at 581.

The Claimants contend that the supreme courts ruling in City of Springfield is correct insofar as the circuit courts and supreme court go, as these courts generally cannot make awards against the State; however, the Court of Claims can make awards against the State.

The rule in this Court is the same as stated in City of Springfield. Interest is not recoverable, particularly against the State, absent a statute imposing such. T & D Pharmacy, Inc. v. State (1984), 37 Ill. Ct. Cl. 37. Centola v. State (1988), 41 Ill. Ct. Cl. 119, 121.

The Claimants argue that the Public Funds Investment Act (30 ILCS 235/0.01 et seq.), imposes liability for interest. This Act states that to the extent that the State has custody of funds belonging to another public agency, it may invest such and the earnings would belong to the other public agency. The Public Funds Investment Act is addressed to the situation in which the State knowingly holds money belonging to another government agency, and acts as custodian of such money. The State was not required to invest such money in any event, as the Public Deposits Act (30 ILCS 225/0.01 et seq.), which requires investment of funds held by the treasurer became effective on July 1,1980. (Town of the City of Peoria v. O’Connor (1981), 85 Ill. 2d 195; Village of Pawnee v. Johnson (1984), 103 Ill. 2d 411.) In this claim, the 2% fee over-withheld for December 5, 1974, to June 30, 1975, was claimed by the State to be its own money, duly earned. The State was not in a custodial relationship to the funds, nor was the State required to invest the funds. Therefore, we hold that the Public Funds Investment Act does not impose liability for interest in this situation.

Adopting the same reasoning as in City of Springfield we find no other statute imposes interest liability for the 2% fee withheld; and as this Court may not order equitable remedies, we are unable to award interest in the form of an equitable remedy. (National Railroad Passenger Corp. v. State (1982), 36 Ill. Ct. Cl. 265, 266.) Therefore, we deny count I of the complaint.

In count II, the Claimants are requesting interest on MROT and GROT tax proceeds that were held by the State prior to distribution to local governments. This very issue has been before the Illinois Supreme Court in the case of the Village of Pawnee v. Johnson (1984), 103 Ill. 2d 411. In Village of Pawnee the supreme court ruled that the State is required to pay interest to the local governments on the MROT tax proceeds held by the State prior to distribution after November 3, 1983. In this claim, the claimants are seeking interest for the period from July 5, 1977, to November 3, 1983.

In Village of Pawnee, the court stated that interest on proceeds collected prior to November 3, 1983, could not be ordered reimbursed, as “* * ” any recovery by the municipalities would then have to be derived from the General Revenue Fund of the State. Such relief would clearly amount to an impermissible money judgment against the State.” 103 Ill. 2d 411, 422.

The Claimants argue that the above language implies that the Court of Claims would have jurisdiction, as it can order money judgments against the State. The Claimants further argue that the Public Deposits Act (30 ILCS 225/1), which requires investment of tax receipts coupled with the Public Funds Act, supra, which permits investment of custodially-held funds, require interest to be paid by the State.

In the case of Board of Commissioners of the Wood Dale Public Library District v. County of Du Page (1984), 103 Ill. 2d 422 (hereinafter referred to as Wood Dale) the supreme court ruled that interest on proceeds retained by the county treasurer need not be returned to local governments even though the county treasurer was ordered to pay interest on such proceeds in the future. In Wood Dale, the supreme court clearly had the power to order past interest to be paid but declined to do so. When speaking of payment of restitutional relief, the court stated that “° * * such relief is not required in every case ***'.” (103 Ill. 2d 422, 431). Therefore, we find that Wood Dale stands for the proposition that payment of past interest is not necessarily required.

The Claimants argue that in the Wood Dale case, the supreme court balanced “equities,” but the Court of Claims may not act as a Court of equity; and therefore, this Court cannot apply the methodology or the rule in Wood Dale. We disagree. We are a creature of the General Assembly created to weigh thousands of claims yearly that otherwise could be presented to the General Assembly. We are told to find the facts and apply the law. We are not given equitable remedy powers. We cannot divorce people, or issue injunctions, or make awards in quantum meruit; but we can balance factors called equitable to arrive at a decision following the precedents of the supreme court.

In Wood Dale, the Illinois Supreme Court used the tests set out in the U.S. Supreme Court case of Chevron Oil v. Huson (1971), 404 U.S. 97, 92 S. Ct. 349, to determine whether it should award interest retroactively. First, the decision must establish a new principle of law or be an issue of first impression. In this claim, the practice in question was unchallenged since 1943, and may have been unchallengeable until 1980 when the Public Investment Act, supra, placed a mandatory duty on the treasurer to invest. Even then the Public Investment Act was not applied against the State until the decision Village of Pawnee, supra, in 1984. Thus, the issue was one of first impression.

Second, the Court must look at the prior history, which we have done, and find whether retroactivity will further or retard operation of the new rule. We find that retroactivity would neither further nor retard operation of the new rule.

Finally, the Court must weigh the inequity or “injustice or hardship” of applying the rule retroactively. In this regard, we find that the decision in Village of Pawnee, supra, hinged on provisions of a statute, the Public Investment Act, that was not effective until 1980 and had not previously been applied to the State; therefore, the most equitable solution is to maintain the long-standing practices that existed prior to 1984 and the Village of Pawnee decision. We find that to do otherwise would be a hardship to the State, but less of a hardship to the municipalities, as the monies involved would not have been anticipated or budgeted by the municipalities; whereas, the State would have to appropriate a substantial sum from current revenues to make a retroactive payment.

The present claim and Wood Dale are analogous. In both cases, a broader level of government was collecting taxes for other governmental units and withholding interest. Both withholdings were long-standing and were done under a claim of right. The situation in the present count has persisted since at least 1943. Therefore, absent a statutory requirement, strictly construed, and balancing the factors as in Wood Dale, we cannot order interest to be paid for the period July 5, 1977, to November 3, 1983. Therefore, we deny count II of the complaint.

The City of Springfield and Village of Pawnee cases were brought as class actions. We do not know the reason that the present claim was not brought as a class action. This Courts uneasiness with the Municipal League and the Illinois Association of Counties as the Claimants is that the parties are not directly interested or aggrieved parties and do not have as members all of the potential claimants, some of whom may now be foreclosed by the statute of limitations. However, we find that it is not necessary to decide the issue of standing to reach a conclusion as no award is made.

It is therefore ordered that this claim is dismissed.


author: Patchett, J. Patchett, J.

text:
    (No. 83-CC-1438
    Thomas C. Woodard and Cherrilyn K. Woodard, minors, by their Mother & Next Friend Patricia A. Woodard, Claimants, v. The State of Illinois, Respondent.

      Order filed January 21, 1987.

      Order filed May 15, 1995.

    Jerome Mirza & Assoc., Ltd. (David V. Dorris, of counsel), for Claimants.
    Jim Ryan, Attorney General (Claire Taylor, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This cause comes on for hearing upon the motion to dismiss filed herein by the Respondent; and the Court having reviewed the documents filed in connection with the motion to dismiss, having heard arguments on the motion to dismiss, and having considered the memorandum of law filed herein by the Claimant and the Respondent, the Court makes the following findings:

(1) That this Court can find no basis for the Claimant, Patricia A. Woodard, being allowed to maintain her claim, in that it is apparent that her claim was filed well after the statute of limitations and the notice requirement had run. In addition, it does not appear of record that she is under any legal disability, under age, or under any other factual situation which would excuse the late filing of notice or the late filing of the complaint.

(2) That the Court has considered the arguments as to the lack of notice filed herein by Thomas C. Woodard, II, and Cherrilyn K. Woodard, both minors. The Court has considered the arguments of counsel and has reviewed the cases applicable to this instance. The Court has specifically taken into consideration sections 101 and 103 of the Tort Immunity Act. (745 ILCS 10/8 — 101, 10/8 — 103.) These are the tort immunity statutes which apply to other governments in the State of Illinois not covered by the Court of Claims Act. The Court has considered prior Court of Claims cases on point, Roberts v. Illinois, 24 Ill. Ct. Cl. 120, Gossar v. Illinois, 24 Ill. Ct. Cl. 183. From reviewing these prior cases, other legislation which is similar, and Illinois Appellate Court cases construing the other statutes previously cited, it is apparent to this Court that the notice provision should not be applied to minors.

For the foregoing reasons, it is ordered:

(1) That the claim of Patricia A. Woodard be and hereby is dismissed, with prejudice.

(2) That the claims of the minor Claimants are not dismissed, and this case shall be set for further consideration consistent with the claim.

(3) That this order does not affect the Respondents other grounds for dismissal. Therefore, the motion to dismiss, in terms of the requirement that the complaint be verified, is well taken. In addition, the Claimants complaint should state a cause of action, including a bill of particulars with specific information as to damages, medical treatment, and employment. Therefore, that part of the motion to dismiss which alleges the complaint is not verified and does not contain a bill of particulars is well stated. Wherefore, the motion to dismiss is granted on those grounds, and the two minor Claimants remaining in the case are given 90 days from the effective date of this order to comply with those requirements.

ORDER

Patchett, J.

The Court being fully advised of the issues involved in the case, does hereby dismiss this cause of action.


text:
    (No. 84-CC-0270
    Mel Duncan, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 14, 1995.

    Murphy, Peters, & Davis (Thomas Peters, of counsel), for Claimant.
    Jim Ryan, Attorney General (Brian Farley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

On July 5, 1982, the Claimant, Mel Duncan, along with his daughter, Gayle Duncan, other relatives, neighbors, and friends went to Starved Rock State Park. They paid no admission fee. While at Starved Rock State Park, Gayle Duncan drowned in the Illinois River which borders the park for 4M miles. Gayle was 25 years old at the time, and was gainfully employed.

The Claimant has filed this wrongful death claim arising from his daughters drowning. In this claim, the complaint alleges that the Respondent was negligent for failing to warn of dangerous currents in the river; for failing to adequately supervise the park; for failing to make available adequate life saving equipment and personnel; and for unreasonably allowing an attractive nuisance to continue to exist without taking steps to prevent swimming in the park.

At the time of the drowning, Gayle Duncan was in the Illinois River off of Lovers Leap Cove along with a number of other people from her group. Gayle was sitting on a rock and was fully clothed. She decided to get off the rock, but the water was deeper than she anticipated; and she was pulled into the river by the current. Gayle could not swim. Immediate attempts to rescue her were made by those nearby; and some park employees tried to revive her, but she died of drowning. Park employees did rescue two other persons who had gone to Gayle s aid and were swept into the river by the strong currents and undertows.

Contrary to the assertions of the Respondent, the Recreational Use of Land and Waters Act (45 ILCS 65/1 et seq., formerly Ill. Rev. Stat., Ch. 70, par. 31), was not applicable to the Starved Rock State Park in 1982. (Miller v. United States (1979), 597 F.2d 614 (7th Cir.); Sherman v. State (1994), 93-CC-2240.) The Standard to be applied would be one of negligence, not willful and wanton conduct. The Recreational Use of Land and Waters Act was amended in 1987. This amendment had the effect of changing the standard to willful and wanton conduct.

In order for the Claimant to recover against the State, he must prove by a preponderance of the evidence that the State owed the injured party a duty, and that duty was breached by a negligent act or omission, and that such negligence was the proximate cause of the injuries complained of. McCoy v. State (1975), 37 Ill. Ct. Cl. 182.

The State has a duty to maintain its premises in reasonably safe condition; and if it knows of any defects, it has a duty to take steps to bring such defects to the attention of the public. Harder v. State (1991), 44 Ill. Ct. Cl. 235, 237. Walter v. State (1989), 42 Ill. Ct. Cl. 1, 5.

In this claim, the State knew of the dangerous undertows in the Illinois River. The State erected six warning signs on trees along the 400 feet of the perimeter of Lovers Leap Cove. The majority of the signs were near the trail leading to the cove. The trail was necessary to use to get to the cove due to the surrounding high bluffs. The signs were metal, 18 by 18 inches, and had written on them: DANGEROUS UNDERTOW STAY CLEAR OF WATER. Other warnings against swimming in the river were in the park brochures, on the park maps posted on the grounds, and on other signs posted on the grounds. The State could not put signs in or near the river on the beach because the periodic rises and falls in the river of 28 feet would cover or destroy the signs. Putting signs on the beach had been tried, but the signs had been destroyed by rising water.

It was suggested by the Claimant that the State fence off Lovers Leap Cove to prevent swimming. The State contended that to do so would destroy the beauty and naturalness of the park; and would be subject to the previously-cited rises and falls in the river; and would not prevent swimming in any event. In addition, the boundary along the river was 4Vz miles. In order to be effective, the fence would have to cover the entire distance. To fence off such a distance would be a great burden and again would destroy the naturalness of the Park; while the rise and fall of the river would destroy the fence.

The State testified that there had been two drownings somewhat before the present incident, but they occurred under different circumstances. No one drowned by entering the water at the beach of Lovers Leap Cove.

Thus, we find that a reasonably alert person would have seen the warning signs; and that the warning signs were adequate and were the best the State could do in light of having to warn along a stretch of 4Vz miles of river. The State is not required to take unduly burdensome steps to warn. For example, it would be unduly burdensome to require the State to station an employee at Lovers Leap Cove all day to warn persons away. Persons intent on swimming could enter the river elsewhere. The State cannot be expected to station employees along the whole 4Vz mile stretch of river all day to prevent swimming. Dunbar v. State (1992), 45 Ill. Ct. Cl. 175, 179.

It is also noted that park employees were on hand by boat in time to rescue two of the swimmers caught in the current.

Therefore, we find that the State did not breach its duty to warn or maintain the premises in reasonably safe condition; and, therefore, is not liable to the Claimant for damages resulting from the drowning death of Gayle Duncan. Therefore, it is ordered that this claim is denied.


text:
    (No. 84-CC-0952
    Artis Toliver and Dorothy Toliver, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1994.

    Martin E. Klein Law Offices, for Claimants.
    Roland W. Burris, Attorney General (Iain D. Johnston, Assistant Attorney General of counsel), for Respondent.
   OPINION

Sommer, C.J.

The Claimants filed a complaint in the Illinois Court of Claims on October 24, 1983, seeking damages “in excess of the jurisdictional amount” of $100,000 for each Claimant, for injuries sustained by them, arising from an accident that occurred on October 3, 1982, while riding on their individual motorcycles on a State highway. The accident occurred about 5:00 p.m.

Artis Toliver and his wife, Dorothy, motorcyclists with 30 years and 8 years experience, were riding their separate vehicles on Illinois Route 1, north of its intersection with Sollitt Road, in the City of Momence, in Kankakee County, Illinois, at a speed of about 50 m.p.h.

Artis Toliver was traveling 10 to 20 feet behind his wife. Both testified that there was a dark spot in the road ahead of them. Artis was 50 to 75 feet from this dark spot when he first saw it. Dorothy applied her brakes 30 feet from the spot, which was a rough portion of the roadway, while Artis did not brake at that time. Dorothy, upon reaching the rough spot, lost control of her vehicle. When both cyclists reached a second bump on the roadway, Artis also lost control of his vehicle and collided with his wife’s vehicle, resulting in injuries to both Claimants. Both testified that there was a hole or dip three inches deep and three feet wide followed by a three-inch raised crack on the roadway, with loose material in the hole.

The Claimants’ photographic exhibits nos. 1 to 5, purported to be of the location of the accident. These exhibits showed the location of the “dip” and the “crack” in the road that caused the accident. The exhibits were objected to by the Respondent on the grounds that the road had been filled in and fixed; and, therefore, did not represent the condition of the area at the time before the accident, as testified to by the claimants. We find that said exhibits should be admitted as they indicated the general size and location of the rough portions of the road.

A Respondents witness, Raymond Mulholland, an employee of IDOT for 27 years as a design project engineer, and a member of the maintenance department and design department testified. He stated that in 1982, at the time of the accident, he was the area field engineer of the maintenance department of IDOT and his duties were to supervise the road conditions, repair and maintenance of all State roads within Kankakee and Iroquois counties. In response to questions as to whether he was familiar with the subject area, he indicated that he was. He drove all the roads in Kankakee County every other month. In reply to the question “were you aware of any prior complaints of a road defect in that portion of the roadway just prior to this accident,” he stated “I do not remember any other complaints in that area at all."

Further, Mr. Mulholland stated that he did not recall ever receiving any complaints from any individual as to the area of the accident site. He was then shown the Claimants’ photographic exhibits. He was asked if, in his opinion as a field engineer, whether the location there shown was in a safe condition. He responded that it was safe.

Testimony for the Respondent also was given by Mark Berger, the lead worker or foreman over the area in question. He testified that a few days after October 3, 1982, he went to the site of the accident. He found a concrete pavement with some asphalt patches on it. Mr. Berger agreed that the photographic exhibits reflected the condition of the site that he saw. He further testified that he had no crew in the area between the time of the accident and his visit a few days later; and that the asphalt patches were not new and had been made prior to the accident and were safe. He further stated that pothole crews travelled the road at least once a month looking for problems, which they then repaired.

During the hearing the Claimants’ attorney requested a ruling similar to the effect of an I.P.I. 5-01 instruction. The gist of such an instruction is that the Respondent has withheld evidence in its possession, thereby warranting an inference that had such evidence been produced it would have been unfavorable to the Respondent.

In December of 1991 the Claimants had requested a copy of the 1981 road condition report for the district and the work sheets for the work crews. Mr. Mulholland testified that the 1981 road condition report was an aggregate report naming the materials, etc., necessary for an entire county in the next fiscal year. It was not site specific. It was destroyed three years later due to its no longer being current. This report would not be helpful to the Claimants. The work sheets for the work crews were destroyed after one year, due to the volume of paper that would accumulate. The Claimants argued that these reports should have been saved after the notice of filing suit was filed. The State argued that such a requirement would mean that the State could never dispose of any reports, because a claim might be pending somewhere. Insomuch as these reports were requested in December of 1991 and had been destroyed years before due to policy of the State, this Court will not make a finding similar to an I.P.I. 5-01 instruction in this case, as the reports were not deliberately withheld.

At the hearing, Mr. Mulholland testified that a Mr. Wiese, a State employee, had made a report at the time of the accident. After this testimony, the Claimant made a request for an I.P.I. 5-01 instruction finding in regard to the Wiese report. The Respondent’s counsel stated that the day of the trial, Mr. Mulholland requested from the district headquarters all additional reports concerning the accident and was told there were none. In the files delivered to the Claimant was a 1978 computerized collision information document with the name of Wiese at the bottom. Similar reports for other years, including 1982, had the name Ed Jermenc on them. In any event, the Court will not make a finding similar to an I.PI. 5-01 instruction for the Wiese Report, as the report was not more specifically identified. Whether it was a detailed accident report or a report similar to the Wiese-Jermenc documents was not established by the Claimant. In any event, there is no evidence that it had been deliberately withheld.

This Court has consistently held that the State is not an insurer of all persons travelling on its highways. (Edwards v. State (1984), 36 Ill. Ct. Cl. 10, 15.) However, where a dangerous condition on a State highway exists, and a person using said highway becomes involved in an accident involving the condition, that person must prove, by a preponderance of the evidence, that such dangerous condition existed and that the State had actual or constructive notice of it. See Scroggins v. State (1991), 43 Ill. Ct. Cl. 225.

The testimony of the Respondent’s witness, Mr. Mulholland, indicates that during the period involved and prior, he did not recall ever receiving any complaints from any individual as to the unsafe condition of the accident site. Additionally, Mr. Berger testified that he knew of no such complaints. This testimony must lead to the conclusion that if, arguendo, the area was unsafe, the Respondent had no actual notice of such unsafe condition so as to be charged with negligence in not maintaining same in a reasonably safe condition. See Scroggins, supra.

The testimony of the Respondents witnesses contradicts any claim that an unsafe condition existed for such a length of time as to reasonably conclude that the State was on or had constructive notice. Constructive notice would exist if a dangerous condition existed for such a length of time, that public authorities, by exercise of reasonable care and diligence, should have known of the condition and had the opportunity to make the roadway safe. (Crile v. State (1984), 36 Ill. Ct. Cl. 176, 178.) In the absence of such proof, the State cannot be charged with constructive notice of an unsafe condition. (Baker v. State (1989), 42 Ill. Ct. Cl. 110, 115.) The State regularly patrolled the area and found nothing. Indeed, the testimony of Mr. Berger contradicts the Claimants assertion that there was the dangerous condition as described by them.

In the claim of Allen v. State (1984), 36 Ill. Ct. Cl. 242, a motorcyclist lost control of his vehicle when it went over a patched area, similar to the one in the present Claim. The Court found that the patched area was not unreasonably dangerous, and stated that “the Court has never held that all State roads must be bump free.” Allen at 247.

It is the finding of this Court that the State had no actual or constructive notice of the defect alleged by the Claimants, and therefore was not negligent.

It is therefore ordered that this Claim is denied and dismissed.