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

text:
    (No. 88-CC-1444
    Emily Howard, Claimant, v. The State of Illinois, Respondent.

      Order filed October 10, 1989.

      Opinion filed March 15, 1993.

      Order filed May 4, 1993.

    John F. O’Meara, for Claimant.
    Roland W. Burris, Attorney General (Janice Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Frederick, J.

This cause coming to be heard on the motion of Respondent for summary judgment, due notice having been given the parties hereto and the Court being duly advised in the premises, the Court finds:

On June 15, 1987, Officer Kuramitsu of the Illinois State Police was patrolling the northbound lanes of the Edens Expressway (Interstate Highway 94 West). At approximately 7:10 a.m., he observed a disabled vehicle on the shoulder just south of Dempster Street in the Village of Skokie and stopped to offer assistance. The Claimant, who had been driving, informed him that the automobile had overheated.

As a matter of routine police procedure, Officer Kuramitsu ran a check on the vehicles license plates and on the operators drivers license. A check operates in the following manner. The patrolman radios key information to an operator in the station house who enters the information into a computer containing information on fugitives and stolen vehicles. If the personal “identifiers” of the detainee substantially match those of a fugitive, the fugitives identifiers appear on the operators screen. The operator then sends a “hit tone” via police radio to the officer. The officer then contacts the operator to get specific information on the fugitive. After comparing the fugitives identifiers with the detainee s, the officer makes the decision whether or not to arrest the detainee.

Officer Kuramitsu received a hit tone on the driver s license check on Emily Howard. After contacting the operator, he was informed of the following:

1. That there was an outstanding warrant from the superior court in Washington, D.C., for a Denise Howard who was wanted for escaping from prison;

2. That the detainees car was not registered in her name, but in the name of Blakely Coats;

3. That the detainee had exactly the same hair and eye color as Denise Howard;

4. That detainees height and weight were almost identical to those of Denise Howard. The difference was only one inch and one pound. Detainees drivers license listed her as 5'6", 109 lbs., while the fugitive was 5'5", 110 lbs.;

5. That the fugitive had previously used an alias first name starting with the letter “E,” as in Emily;

6. That detainee had the same exact day, month and year of birth as the fugitive: June 6,1950.

Based upon the above, Officer Kuramitsu determined that the detainee might be Denise Howard and, at 7:30 a.m., arrested her to ascertain if she was indeed Denise Howard.

Arriving at the Skokie Police Station at approximately 7:40 a.m., the suspect was searched for weapons and at 8:30 a.m., fingerprints were taken and sent to Joliet to obtain a fingerprint classification. At 10:55 a.m., Officer Kuramitsu was informed by Joliet that the prints were unclassifiable. At approximately 11:10 a.m., the suspect was refingerprinted and the prints were sent to the FBI. At approximately 12:30 p.m., Officer Kuramitsu was informed that the FBI machine was not accepting the prints. At this time, Officer Kuramitsu requested the prints be sent to Joliet and simultaneously pursued other means of identifying the suspect, namely by calling her employer and by questioning the suspect, her sister and her mother. After such investigation, Officer Kuramitsu determined that the suspect was not Denise Howard and immediately released her at approximately 12:55 p.m., less than 5Vz hours after her arrest.

A motion for summaiy judgment is properly granted

“where the pleadings, exhibits, depositions and affidavits of record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” Lopez v. Winchell’s Donut House (1984), 126 Ill. App. 3d 46, 466 N.E.2d 1309.

In the instant matter, both parties agree on the event which occurred. The only disputed issue is the legal consequences of Officer Kuramitsus actions. Therefore, the question presented to this Court is one of law and is properly decided by this Court in a summary judgment proceeding.

False Imprisonment

False imprisonment consists of an unlawful restraint, against his will, of an individuals personal liberty or freedom of locomotion. (Dutton v. Roo Mac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604.) False arrest is one means of committing false imprisonment. (Shemaitis v. Froemke (1955), 6 Ill. App. 2d 323, 127 N.E.2d 648; Dutton v. Roo Mac, Inc., supra.) However, even when the arrest itself is perfectly valid and legally sustainable, an unreasonable detention following the arrest can be, in and of itself, “false imprisonment.” (Luker v. Nelson (1972), 341 F. Supp. 111.) Claimants complaint alleges false imprisonment based on both false arrest and unlawful detention following an arrest. In the present matter, there is no issue of fact and movant is entitled to judgment as a matter of law on both allegations.

False Arrest

In Dutton, the court stated that “an arrest authorized by statute cannot be grounds for civil liability.” Since Officer Kuramitsu arrested the Claimant pursuant to Ill. Rev. Stat. 1987, ch. 38, par. 107 — 2(l)(b), the arrest cannot be grounds for false imprisonment.

Ill. Rev. Stat. 1987, ch. 38, par. 107 — 2(1) states that,

“A peace officer may arrest a person when ° ° 0 (b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this state or in another jurisdiction.”

Via police radio, Officer Kuramitsu was informed that there was an outstanding warrant for Denise Howard and reasonably believed that the Claimant could have been the fugitive based on the following information:

1) The car Claimant was driving was not registered in her name. Rather it was registered to one Blakely Coats;

2) Both Denise Howard and Claimant had black hair and brown eyes.

3) Denise Howard was five feet, five inches high, while Claimants drivers license listed her as five feet, six inches high;

4) Denise Howard weighed 110 lbs., while Claimants drivers license listed her as 109 lbs.;

5) Denise Howard had previously used an alias first name beginning with the letter “E,” as in Emily;

6) Most importantly, both Denise Howard and Claimant have exactly the same birthdate: June 6,1950.

Clearly, the above-stated similarities gave Officer Kuramitsu the statutorily required “reasonable cause” to arrest Claimant.

In addition to the above-mentioned statutory justification for the arrest, Claimants cause of action must fail by the very definition of false arrest as determined by case law.

In U. S. ex rel Kirby v. Sturges (1975), 510 F. 2d 397, police officers on the lookout for a con man mistakenly arrested the plaintiff based on a department bulletin bearing a description and picture of the wanted person. The circuit court ruled that there was no false arrest because the officers’ mistake was reasonable. The court, resting its decision on a Supreme Court case, Hill v. California (1971), 401 U.S. 797, 91 S. Ct. 1106, stated that “The Supreme Court has held an arrest or stop based upon a reasonable mistake as to identity is lawful.” Kirby, at 401.

Since Officer Kuramitsu made a reasonable mistake as to Claimant’s identity, Kirby and Hill dictate that the arrest was lawful, thereby defeating a false arrest claim as a matter of law.

We find that Respondent is entitled to judgment as a matter of law on the false arrest claim because:

1. Officer Kuramitsu arrested Claimant pursuant to statute and therefore the arrest cannot give rise to civil liability. Dutton v. Roo Mac, Inc., supra, and;

2. The arrest resulted from a reasonable mistake of identity which Kirby and Hill have deemed lawful, thereby defeating a false arrest claim as a matter of law.

Unlawful Detention

In addition to false arrest, unlawful detention following an arrest can itself give rise to a false imprisonment claim. (Hughes v. New York Central System (1959), 20 Ill. App. 2d 224, 155 N.E.2d 809.) In paragraph 7 of her complaint, Claimant asserts that she “was detained despite information available to respondent that she was not the person named in the warrant.” This attempt at analyzing Officer Kuramitsu s actions with the benefit of hindsight is incorrect. Rather, the lawfulness of his actions must be viewed in light of police procedure and the facts available to the officer at the time of the alleged incident.

Officer Kuramitsu used a statutorily approved method of identifying the Claimant. Officer Kuramitsu attempted to identify Claimant by her fingerprints pursuant to Ill. Rev. Stat. 1987, ch. 38, par. 206 — 4, entitled “Systems of Identification,” which states that

“The Department may use the following systems of identification: The Bertillion System, the fingerprint system,, and any system of measurement or identification that may be adopted by law ° ° (Emphasis added.)

For an unknown reason, the prints were returned “unclassifiable,” so the prints were retaken. Clearly, to repeat an approved procedure one time cannot make Respondent liable for false imprisonment. If it did, police officers would be forced to release potential fugitives and felons every time a first set of prints was deemed “unclassifiable.” After the second set of prints was returned “unclassifiable,” Officer Kuramitsu immediately pursued secondary, less exact methods of identification which led to Claimant’s release less than six hours after her arrest.

Claimant complains that Respondent’s above-stated actions caused her to be detained for the unreasonable length of six hours. However, courts have recognized that proper police procedure can be time consuming, yet not constitute unreasonable detention.

In Doe v. Thomas (1985), 604 F. Supp. 1508, as in our case, plaintiff was arrested pursuant to a valid warrant. Doe was imprisoned at two police stations for “a total of approximately nine hours for the proper purpose of administrative processing.” (Doe, at 1515.) The court granted defendant s motion for summary judgment, denying the claims of false arrest and false imprisonment. Although Doe was detained for “booking,” detention to identify Claimant is likewise a “proper purpose of administrative processing.”

In the instant matter, administrative processing took three hours less than in Doe. If nine hours for processing was reasonable as a matter of law in Doe, certainly Claimants six hours of detention awaiting identification results cannot support a false imprisonment claim. Based on Doe, we find that there was no unlawful detention as a matter of law and grant Respondent s motion for summary judgment.

In light of the above-cited case law, we further find that the undisputed actions of Officer Kuramitsu clearly do not constitute false imprisonment as a matter of law.

It is therefore ordered, adjudged and decreed that the Respondents motion to dismiss is granted, and this claim is dismissed.

OPINION

Frederick, J.

Claimant, Emily Howard, filed her case in the Court of Claims on November 19, 1987. She alleged that she was falsely arrested and detained by an Illinois State Trooper on June 15, 1987. The cause was tried before Commissioner Weinberg. The Claimant filed her brief but the State failed to file a brief.

The Facts

At about 6:50 a.m. on June 15, 1987, the Claimant, Emily Howard, was driving to her employment at Avon Products on Golf Road in Morton Grove, Illinois, as a temporary worker for Just Jobs. She performed work at Avon Products as an assembly line worker.

Emily Howard was bom in Chicago, Illinois, on June 6, 1950. Claimant testified she had never been arrested or convicted of any crime except for traffic violations. She testified she had never been outside of the Chicago area except to go to Cincinnati to visit her father. On the date in question, Claimant was dressed in a blouse and jeans and she was carrying her purse. She was driving a car registered to Blakely Coats who was a friend of Claimants sister, Deborah Johnson. Deborah Johnson worked at Avon, too, and she was going to work with Claimant that morning. Their hours of work were from 7:00 a.m. to 3:30 p.m. They left their home at about 6:00 a.m. and proceeded north on Edens Expressway. At some point the car began mnning hot and at about 6:50 a.m., Claimant pulled to the side of the expressway to put water in the radiator and to allow the engine to cool. The car was pulled over just south of Niles Center Road.

At about 7:00 a.m., Trooper Bryant Kuramitsu of the Illinois State Police observed the car driven by Emily Howard. Trooper Kuramitsu pulled his State Police car behind the Howard car on the shoulder. He had been a trooper for about a year. After first ascertaining what the car problem was, Trooper Kuramitsu initially went to the trunk of his State Police car to get water for the radiator. Trooper Kuramitsu then asked for Emily Howards drivers license. Upon receipt of the license, Trooper Kuramitsu ran a status check on the drivers license and auto license of Claimant.

Trooper Kuramitsu spoke on the police radio to Clarence B. McCormick, a telecommunicator employed by the State Police and stationed at District III headquarters at Irving Park Road and Harlem Avenue. Telecommunicator McCormick operated both the radio and a computer terminal at district headquarters. As a matter of procedure, McCormick entered the drivers name, sex, date of birth and license number into the computer, and the computer accessed banks of stored data. It accessed TIPS (Traffic Information Planning System) maintained by the State Police in Springfield, Illinois, which showed whether the person had received a citation or warning from either the State Police or Department of Conservation in the past year, and it also accessed LEADS (Law Enforcement Agency Data System) which was maintained by the State of Illinois in Springfield, Illinois, and contained information regarding stolen vehicles and wanted persons in the State of Illinois. The computer also accessed NCIC (National Crime Information Center) information compiled from the 50 States plus foreign countries regarding the same subjects through NLETS (National Law Enforcement Terminal System). The records of the Illinois Secretary of State were also accessed regarding the drivers license and automobile registration information requested by Mr. McCormick.

When telecommunicator McCormick entered the information from Trooper Kuramitsu as to Claimant, the computer showed that the automobile had valid Illinois license plates, that Emily Howard had a valid drivers license which was last issued on June 4, 1986, and that there were no positive responses from TIPS or LEADS. However, from the NCIC there was a response that a Denise Howard was wanted for prison breach in Washington, D.C., with the contact being Charles V. Hargrave, Jr., D.C. Department of Corrections. The warrant had been issued from the D.C. Superior Court on December 3, 1986. The computer information showed the wanted person, Denise Howard, had been born in New Jersey and was born on either June 6, 1950, or June 6, 1958. Two dates of birth were shown. The additional information provided on Denise Howard was that she was a black female with brown eyes and black hair. She was 5 feet, 5 inches tall and weighed 110 pounds. She had used several aliases, including Evon Hicks. The computer sheet ended with these words: “IMMED Co. FIRM WARRANT and extradition with ORI.”

Claimant, Emily Howard was bom on June 6, 1950. She is a black female. She is 5 feet, 6 inches tall, weighed 109 pounds, and had black hair and brown eyes. To Officer Kuramitsu, the computer information constituted a reasonably close match of identifiers between Emily Howard and the wanted Denise Howard.

The Illinois State Police have a policy and procedure that was in existence on June 15, 1987, for circumstances such as those in the present case. Respondent presented the policy and procedure into evidence as Exhibit 4. The relevant portion of those policies and procedures is as follows:

“HIT PROCEDURE (OPS-11)
PURPOSE
The purpose of this directive is to establish uniform procedures governing the exchange of Computerized Hot File (CHF) data by radio between communications personnel and officers utilizing the Department of State Police Communications System. The objectives of this procedure are to enhance officer safety and to protect law enforcement agencies and their employees from civil liability as related to the action taken based upon computerized hot file information.
DEFINITIONS
1. Hit: A positive response message to an inquiry producing a record from the Computerized Hot Files of LEADS and/or NCIC which is identical to some or all of the identifiers submitted in the inquiry.
a. A hit is investigative information only. The hit provides information for decision making by police officers, investigators, judges, etc. The information furnished by the hit must be evaluated along with other facts known to the officer. A hit is one fact which may be added to other facts obtained by the officer in establishing sufficient légal grounds for arrest. A hit is an informational tool.
b. A LEADS and/or NCIC hit alone may be used by the officer as reasonable grounds for detention of persons and/or property at the scene. However, only after documented confirmation with the originating authority is probable cause provided to effect an actual arrest or recovery. (Emphasis added.)
2. Valid Hit: To the LEADS operator — A hit that contains identifiers that are an exact match or a reasonably close match to the identifiers given in the inquiry. A valid hit will be disseminated to the inquiring source.
To the officer — A hit that contains identifiers that are an exact match or a reasonably close match to the visible and/or numeric identifiers of the person or property inquired upon. A valid hit establishes that there is reasonable grounds to initiate recovery or detention.”

Based on the computer information of a reasonably-close match, telecommunicator McCormick broadcast a hit tone to Trooper Kuramitsu. Lieutenant Richard Lambert of the Illinois State Police testified, “reasonably close” meant that the characteristics are sufficiently similar to warrant a little more checking.

Both telecommunicator McCormick and Trooper Kuramitsu testified to inaccuracies they had experienced concerning the computer information generated by the aforesaid systems. McCormick testified that he received an average of 15 to 20 positive responses per week from the computer data banks and that he had eight on the day prior to his testimony. Mr. McCormick could not testify to a percentage as to how many of the hit reports were accurate, but of the eight the previous day, not one had been accurate. Trooper Kuramitsu also testified that a substantial number of hit tones had turned out to be invalid. Other than the computer-generated information, there was no testimony presented that there was anything suspicious or criminal concerning the conduct or appearance of Claimant, Emily Howard. Claimants drivers license was valid and there were no warrants under the name, Emily Howard. The last name, Howard, is a common last name.

Claimant testified that after the trooper had been on the radio, the trooper exited the police car and came over to where Claimant was and told her that he had to take her in. Trooper Kuramitsu testified that he asked Emily if she was bom in New Jersey or had ever been to Washington, D.C. Claimant testified she showed the trooper her check-cashing card, her State of Illinois identification card, a Mutual of Omaha medical insurance card, and a driver safety citation from the Illinois Secretary of State issued on June 4,1986.

Deborah Johnson testified that she told the trooper that they were on their way to work.

Telecommunicator McCormick testified that Trooper Kuramitsu never asked him to confirm the “hit” with the originating authority. McCormick testified that he would only confirm with the originating authority if requested to do so by the trooper in the field and that he would not confirm if the officer did not ask him to do so. When McCormick “confirmed a hit,” he would send a confirmation request by computer to the originating authority. If some clarification was needed, there was a telephone in the “operations” or “headquarters” section next to where McCormick worked for such purposes. Lieutenant Lambert corroborated that only the telecommunicator initiates the confirmation process.

Trooper Kuramitsu testified that he took Emily Howard into custody because he had no further information to go on, and he felt it was his duty to investigate further in that Emily Howard could be the wanted person.

Lieutenant Richard Lambert was called as a witness by the State. He testified that the policies and procedures in Claimants Exhibit 4 only applied to telecommunicators and not field officers. However, he identified Respondents Exhibit 1 as the relevant Illinois State Police operational policy regarding computerized hot files which would apply to field officers. That exhibit states in part:

“g. CONFIRM the validity of the computerized hot file (CHF) record by contacting the originating agency via directed message.
NOTE If there is no response from the originating authority within a reasonable length of time (10 minutes), refer the matter to the desk operations officer.”

Trooper Kuramitsu did take Claimant, Emily Howard, into custody and transported her to the Skokie, Illinois, police station. He did not seek confirmation of the warrant and did not refer the matter to the desk operations officer. While in custody at the Skokie police station, neither Claimant or her purse was searched. However, Claimant was handcuffed to a bench. Trooper Kuramitsu testified that at the police station he called Avon to check on Claimant’s employment and was referred to a temporary agency. The Trooper called Just Jobs and Claimant’s employment was confirmed. Trooper Kuramitsu never tried to contact Mr. Hargrave in Washington, D.C., to confirm the warrant and obtain better identifiers even though he was given the phone number of Mr. Hargrave. Trooper Kuramitsu testified that Claimant was taken to the Skokie police station for the purpose of identifying her by fingerprints. Emily Howard testified that she was printed three or four times. Trooper Kuramitsu testified that the first set of prints was returned as unclassifiable and that Claimant was reprinted at 10:55 a.m. The second set of prints was sent to the FBI, but at 12:30 p.m., he was advised that the FBI facsimile machine was not working. The prints were then sent to Joliet, with the negative match results being returned at 2:00 p.m. Claimant was released at 12:55 p.m. before the fingerprints were reported as a negative match.

Trooper Kuramitsu testified that he decided to release Claimant because of her attitude and her family’s attitude which convinced him she was not the wanted person. Additionally, shortly before Emily’s release, a friend of Claimant’s mother, Steve Kula, arrived at the Skokie police station to give additional information and advise the police that the wrong person must have been arrested.

As to damages, Claimant testified that during the week before the incident she had strained her right shoulder while lifting a chair. She claimed that when she was handcuffed, her right shoulder hurt her. The handcuffs also hurt her wrists and she told Trooper Kuramitsu about this in the police car. Trooper Kuramitsu did loosen the cuffs at the station. Except for being fingerprinted, she had to remain handcuffed to a bench. The whole process caused her to feel fear, according to Claimant.

Claimant’s employment at Avon was as a temporary from Just Jobs. Avon was planning on hiring some of the agency workers on a permanent basis and Claimant feared that Avon would not hire her because of this arrest. However, Avon did hire her on a permanent basis. Claimant lost approximately $100 for missing work on June 15, 1987. As a result of the arrest, Claimant claims some of her co-workers at Avon called her jailbird and criminal.

The Law

Ill. Rev. Stat., ch. 38, par. 107 — 14 states:

“A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit, or has committed an offense as defined in Section 105 — 15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.”

Ill. Rev. Stat, ch. 38, par. 107 — 2 states, in pertinent part:

“A peace officer may arrest a person when:
(a) He has a warrant commanding that such person be arrested; or
(b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction; or
(c) He has reasonable grounds to believe that the person is committing or has committed an offense.
(3) A peace officer who executes a warrant of arrest in good faith beyond the geographical limitation of the warrant shall not be liable for false arrest.”

The facts in this case are undisputed that Trooper Kuramitsu originally stopped to help Claimant in his caretaking-of-the-public function as a police officer. He had the right in that capacity to obtain identification from Claimant and check for a valid drivers license as she had been driving and was about to drive on a public highway. In that regard, it was permissible to check on wants and warrants for the motorist for the protection of the officer. It is also undisputed that upon receipt of the hit tone from the telecommunicator, at about 7:00 a.m., the trooper detained Claimant at the scene, then arrested Claimant and transported her to the Skokie police station where she was held in handcuffs until about 12:30 p.m., when she was released. It is uncontradicted that Claimant, Emily Howard, was not the wanted person, Denise Howard.

Neither Trooper Kuramitsu nor telecommunicator McCormick followed their own policies and procedures and contacted the originating agency for confirmation on the warrant and additional identifiers. The computer-generated information obtained by the telecommunicator also requested the arresting agency to immediately confirm the warrant and extradition with the originator.

The only disputed issue is the legal consequences of Trooper Kuramitsus actions. False imprisonment consists of an unlawful restraint, against the will of an individuals personal liberty or freedom of locomotion. (Dutton v. Roo Mac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604.) False arrest is one means of committing false imprisonment. (Shemaitis v. Froemke (1955), 6 Ill. App. 2d 323, 127 N.E.2d 648; Dutton v. Roo Mac, Inc., supra.) However, even when the arrest itself is perfectly valid and legally sustainable, an unreasonable detention following the arrest can be, in and of itself, “false imprisonment.” (Luke v. Nelson (1972), 341 F. Supp. 111.) Claimants complaint alleges false imprisonment based on both false arrest and unlawful detention following an arrest.

Claimant has the burden of proving by a preponderance of the evidence that the officer imprisoned her, that the officer did not have probable cause to detain her at the scene, or that he did not have probable cause to arrest her and take her to the Skokie police station, and that she suffered damages therefrom. (Ivancic v. State (1961), 24 Ill. Ct. Cl. 81.) In Dutton, supra, the court stated that “an arrest authorized by statute cannot be grounds for civil liability.” Since Trooper Kuramitsu arrested the Claimant pursuant to Ill. Rev. Stat. 1987, ch. 38, par. 107 — 2(b), the arrest cannot be grounds for false imprisonment.

Pursuant to the transmission by the telecommunicator by police radio, Trooper Kuramitsu was informed that there was an outstanding warrant from Washington, D.C., for a Denise Howard and he reasonably believed, based on the information before him, that the Claimant could have been the fugitive based on the following information:

(1) The car Claimant was driving was not registered in her name;

(2) Both Denise Howard and Claimant had black hair and brown eyes;

(3) Denise Howard was five feet, five inches tall, while Claimants drivers license listed her as five feet, six inches tall;

(4) Denise Howard weighed 110 lbs., while Claimants drivers license listed her as 109 lbs.;

(5) Denise Howard had previously used an alias first name beginning with the letter “E,” albeit Evon and not Emily;

(6) Denise Howard and Claimant have the same birthdate — June 6, 1950, although a second birthdate of June 6,1958, appeared on the teletype.

Clearly, the above-stated similarities gave Trooper Kuramitsu the statutorily required “reasonable cause” to stop and detain Claimant at the scene.

In addition to the above-mentioned statutory justification for the stop, Claimant s cause of action must fail by the very definition of false arrest as determined by case law.

In United States. ex rel. Kirby v. Sturges (1975), 510 F. 2d 397, police officers on the lookout for a con man mistakenly arrested the plaintiff based on a department bulletin bearing a description and picture of the wanted person. The circuit court ruled that there was no false arrest because the officers’ mistake was reasonable. The court, resting its decision on a Supreme Court case, Hill v. California (1971), 401 U.S. 797, 91 S. Ct. 1106, stated that “The Supreme Court has held an arrest or stop based upon a reasonable mistake as to identity is lawful.”

Since Trooper Kuramitsu had a reasonable belief that Claimant was the wanted person, Kirby and Hill dictate that the arrest was lawful, thereby defeating a false arrest claim.

In addition to false arrest, unlawful detention following an arrest can itself give rise to a false imprisonment claim. (Hughes v. New York Central System (1959), 20 Ill. App. 2d 224, 155 N.E.2d 809.) The unlawfulness of Trooper Kuramitsu and telecommunicator McCormick’s actions must be viewed in light of police procedure and the facts available to the officer and telecommunicator at the time of the alleged incident. It is a finding of this Court that both the Trooper and the telécommunicator failed to follow their own policies and procedures. The State Police have a written “hit procedure.” The objectives of the hit procedure are to enhance officer safety and to protect law enforcement agencies and their employees from civil liability as related to the action taken based upon computerized hot file information. (Emphasis added.) There is a tacit admission that much of the information in the computer system is stale or just plain wrong. There was considerable testimony before the Court concerning invalid information in the system.

This case presents a reasonably close match situation rather than an. exact match. The warrant is not from Illinois, but from Washington, D.C. The policy and procedure states that an NCIC hit alone may be used by the officer as reasonable grounds for detention at the scene. (Emphasis added.) An actual arrest can only be made after documented confirmation with the originating agency to establish probable cause. Trooper Kuramitsu and telecommunicator McCormick had grounds to initiate detention. They failed to establish probable cause for an arrest wherein Claimant could be taken from the scene. Both the district directive and the policy and procedures manual require confirmation of the warrant to establish probable cause. It was an unlawful detention to arrest Claimant, take her from the scene, and hold her at the Skokie police station for approximately five hours. To this day, this Court has never been provided proof of the validity of the warrant. It is difficult to fathom that to this date the validity of the warrant has never been proven.

If Trooper Kuramitsu had confirmed the warrant and obtained better identifiers such as a social security number, information on scars or other more precise indications of identification, he could have detained the Claimant at a police station. Once at the police station, Trooper Kuramitsu used a statutorily approved method of identifying the Claimant. Trooper Kuramitsu attempted to identify Claimant by her fingerprints, pursuant to Ill. Rev. Stat. 1987, ch. 38, par. 206 — 4, entitled “Systems of Identification” which states that

“The Department may use the following systems of identification: The Bertillion System, the fingerprint system, and any system of measurement or identification that may be adopted by law * *

Trooper Kuramitsu also pursued secondary, less exact methods of identification which led to Claimants release about 5V2 hours after her arrest.

Claimant complains that Respondents above-stated actions caused her to be detained for an unreasonable length of time. However, courts have recognized that proper police procedure can be time-consuming, yet not constitute unreasonable detention.

In Doe v. Thomas (1985), 604 F. Supp. 1508, which is distinguishable from the present case, plaintiff was arrested pursuant to a valid warrant. Doe was imprisoned at two police stations for “a total of approximately nine hours for the proper purpose of administrative processing.” (Doe, at 1515.) The court granted defendants motion for summary judgment denying the claims of false arrest and false imprisonment. Although Doe was detained for “booking,” detention to identify Claimant is likewise a “proper purpose of administrative processing.”

By violating their own procedures which admit a hit is not probable cause, Claimant was unlawfully detained. When absolutely no attempt was made to confirm the warrant and obtain better identifiers, it was unlawful for Claimant to be removed from the scene. As previously stated, Claimant also has the burden of proving her damages. Even if Trooper Kuramitsu had not taken Claimant from the scene, he could have lawfully detained Claimant at the scene for a reasonable time to confirm the warrant. If the warrant was confirmed and better identifiers obtained, he could have done exactly what he did do in this case because he would have had probable cause to arrest and detain at a police station while he made reasonable efforts to check on the identification. The 514-hour total proceeding was not unreasonable if there had been probable cause.

Claimant was not physically injured as a result of her detention. There was no medical evidence of any injury. Claimant was hired permanently at Avon. Claimant did lose $100 in wages. She was upset and embarrassed. She was handcuffed to a bench in a police station for about five hours.

It is therefore our order that Claimant be awarded the sum of $2,500 as and for her damages in this cause.

ORDER

Frederick, J.

This cause coming on for hearing on Claimant’s motion to tax bill of costs, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That Claimant seeks to have two reports of proceedings taxed as costs and ordered paid by Respondent.

2. That Rule 13 of the Court of Claims Regulations (74 Ill. Adm. Code 790.130) provides:

“All costs and expenses of taking evidence required by the Claimant shall be borne by the Claimant; and the costs and expenses of taking evidence required by the Respondent shall be borne by the Respondent.”

3. That there is no authority to tax the transcripts as costs of Respondent.

Therefore, the motion to tax bill of costs is denied.


source: Caselaw Access Project

author: Frederick, J.

license: Public Domain

text:
    (No. 88-CC-3804
    Gregory J. McHugh and Myra Golden, Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 6, 1992.

    Appleton & Appleton, for Claimants.
    Roland W. Burris, Attorney General (Thomas S. Gray, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This cause arises from a request for attorney fees pursuant to Ill. Rev. Stat., ch. 127, par. 1014.1. Gregory J. McHugh, attorney at law, was employed by Myra Golden as her legal counsel in her appeal for expungement of an indicated report of child abuse filed by the Illinois Department of Children and Family Services. Claimants request the amount of $1,345 in attorney fees for the prosecution of the expungement hearing and $650 for this appeal to the Court of Claims of the Departments denial of attorney fees. By stipulation of all parties, the hearing in this case was waived in lieu of briefs submitted by the parties hereto and all evidence offered is in the form of witness depositions and parties’ exhibits.

The Respondent, State of Illinois, Department of Children and Family Services, hereafter referred to as “DCFS,” admits the substantial facts as described in the Claimants’ brief.

The Facts

On April 19, 1986, an allegation of child abuse against Myra Golden was reported to DCFS. The following week, DCFS conducted an investigation into the report that Ms. Golden’s child had been burned. The investigation included interviews with the child himself, Myra Golden, Jim Land, the homemaker, and Jennifer Jackson, a paralegal with the State’s Attorney’s office. Conflicting statements were given by those interviewed. Ms. Golden denied the allegation. In addition to the interviews, the child was examined by a physician on April 22, 1986, three days after the abuse was alleged to have occurred. The physician concluded that the age of the scar on the child’s arm made it too difficult to determine its cause. Upon completion of its investigation, DCFS filed an indicated report of abuse against Myra Golden.

In seeking expungement of the indicated report, Claimant, Myra Golden, sought legal counsel from the Claimant, Gregory McHugh. Attorney McHugh represented Myra Golden in her expungement proceeding to DCFS to have the indicated report expunged from her record as inaccurate following the guidelines for the appeal for expungement set forth in Ill. Rev. Stat. (1985), ch. 23, par. 2051 et seq.

On November 23, 1987, a hearing officer, Ed Schoenbaum, was assigned to review the case. On December 7, 1987, DCFS conducted a hearing to consider the request for expungement. Mr. Schoenbaum determined that credible evidence to support the indicated finding against Myra Golden was not documented. The facts found at the hearing were that the Department received a call at the State central register wherein a reporting person told an investigator that they had seen the minor child involved with a burn mark on his left forearm. The reporter stated to the investigator that the child said his mom had burned him with a cigarette lighter. The investigator then met with the minor child and Claimant, Myra Golden, the mother. The investigator did notice a circular mark on the child’s left forearm which did resemble a bum mark. The child initially told the investigator he did not know how he got the mark but later said he was burned by a lighter although he would not say who did it. He then said he was burned by bumping into a cigarette but could- not or would not say when it happened or who was smoking.

Myra Golden denied burning the child. On the next day, the investigator interviewed the child away from home. The child told the investigator that his “Mom had burnt him.” The child said it happened Saturday afternoon and that his mom used a lighter. The doctor examining the mark stated that “due to the age of the mark it was difficult to tell if the mark was from a bum or from something else.” The location of the mark was not in a location usually associated with a fall or a scrape. Outside of the presence of the doctor and his mother, the investigator stated the child again told him that his mother had burned him.

The investigator indicated the report of abuse because the child was very consistent and specific. There had also been a prior indicated report dealing with a March 1984 report of cuts, bruises and welts.

At the hearing, the child testified in camera that he didn’t remember a bum on his left forearm and did not remember telling anyone anything about the bum being caused by his mother.

The hearing officer found the child’s stoiy was not consistent and that the child’s mother denied causing the burn. The Abused and Neglected Child Reporting Act requires the Department to document the existence of credible evidence to indicate a report of suspected child abuse or neglect. (Ill. Rev. Stat. (1985), ch. 23, par. 2053.) Pursuant to DCFS’s administrative mies, a cigarette bum must be verified by a physician’s diagnosis unless the perpetrator admits causing the burn. The hearing officer believed the administrative rule required a physician’s diagnosis of burn where the mother denied that she caused the bum. Since the doctor could not specifically diagnose a burn and Claimant denied the abuse, the hearing officer recommended that the indicated report of abuse be expunged. The hearing officer wrote

“The hearing officer is not convinced that the Department has carried the burden of proof of demonstrating that credible evidence exists that (the child) was burned. Therefore, the hearing officer recommends that the report be expunged from the State Central Register.”

Subsequent to the finding, expungement was granted.

The Claimants requested that the Respondent agency pay Myra Golden’s attorney fees pursuant to Ill. Rev. Stat., ch. 127, par. 1014.1. The request was denied by the agency.

The Law

The Claimant cites Ill. Rev. Stat., ch. 127, par. 1014.1 as support for his request. Section 1014.1 states:

“(a) In any contested case initiated by any agency that does not proceed to court for judicial review and on any issue where a court does not have jurisdiction to make an award of litigation expenses under Section 2 — 611 of the Civil Practice Law, any allegation made by the agency without reasonable cause and found to be untrue shall subject tire agency making the allegation to the payment of the reasonable expenses, including attorneys fees, actually incurred in defending against that allegation by the party against whom the case was initiated. A claimant may not recover litigation expenses when the parties have executed a settlement agreement that, while not stipulating liability or violation, requires the claimant to take corrective action or pay a monetary sum.
(b) The claimant shall make a demand for litigation expenses to the agency. If the claimant is dissatisfied because of the agency’s failure to make any award or because of the insufficiency of the agency’s award, the claimant may petition the Court of Claims for the amount deemed owed. If allowed any recovery by the Court of Claims, the claimant shall also be entitled to reasonable attorney’s fees and the reasonable expenses incurred in making a claim for the expenses incurred in the administrative action. The Court of Claims may reduce the amount of the litigation expenses to be awarded under this Section, or deny an award, to the extent that the claimant engaged in conduct during the course of the proceeding that unduly and unreasonably protracted the final resolution of the matter in controversy.”

The statute at issue and under which Claimant seeks relief has the following requirements:

(1) There must be a contested case initiated by an agency that does not proceed to court for judicial review; and

(2) There must be an allegation made by the agency without reasonable cause;

(3) That allegation must be found to be untrue;

(4) There must be no stipulation by the claimant which requires the claimant to take corrective action or pay a monetary sum.

As a matter of statutory construction, it is axiomatic that statutes which permit a recovery of attorney fees are in derogation of the common law and must be strictly construed by the court. (Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392.) When a statute can reasonably be interpreted so as to give effect to all of its provisions, a court will not adopt a strained reading which renders one part superfluous as it is presumed that the legislature intended to give meaning to all the provisions of a statute.

In the present case, the Claimant chose to rely on the findings of the administrative hearing officer and Respondent chose not to present any new evidence in the Court of Claims. It is clear from the record presented to this Court that the Claimant has proven, by a preponderance of the evidence, all four requirements of the statute. It is clear that there was a contested case that was initiated by DCFS which did not proceed to court for judicial review. The expungement appeal process may not have been exactly the proceeding contemplated by the legislature, but such a proceeding does fall within the statutory language. The Claimant has also proven that the allegation of indicated abuse was made by the agency without reasonable cause. The agency rule requires a doctors verification of a burn where the alleged perpetrator does not admit the abuse. In the instant case, the doctor was unable to diagnose a bum because of the passage of time, even though the mark on the child was in an unusual place and looked somewhat like a bum mark. The allegation of indicated abuse was therefore made without reasonable cause under the Departments own rules. The investigation itself of the report of child abuse was made with reasonable cause. It was the indicated finding that was not reasonable due to the Departments rule violation. However, ch. 127, par. 1014.1 does not permit recovery simply because the agency failed to follow its own rule. Ekco Inc. v. Edgar (1985), 135 Ill. App. 3d 557.

There is nothing in the record that indicates Claimant entered into a stipulation to take corrective action or pay a monetary sum. In fact, the record is clear that Claimant denied, contested and challenged the allegations of abuse throughout.

This case turns on whether Claimant has proven to this Court that the allegations were found to be untrue. Claimant and Respondent failed to present any new proof in this Court and both rely on the findings of the administrative hearing officer who recommended expungement of the indicated report. The hearing officer made the following finding which is relevant to this inquiry:

“3. I find as Myra testified under oath that she never intentionally burned her son.”

While the finding may have been inartfully drawn, the clear import of the finding is that the hearing officer found the allegation of indicated abuse to be untrue. This interpretation finds additional support in the hearing officers recommendation wherein he states that the hearing officer is not convinced that the Department has carried the burden of proof of demonstrating that credible evidence exists that the minor child was burned. Having met the burden of proof, the Claimant is entitled to an award of attorney fees. The attorney fees sought appear to be reasonable.

Based on the foregoing, it is therefore ordered that Claimant is awarded $1,345 for attorney fees for prosecuting her expungement proceeding and $650 for attorney fees for Claimants appeal of the attorney fees denial to and through the Court of Claims, for a total award of $1,995 for attorney fees.


author: Montana, C.J.

text:
    (No. 89-CC-0047
    Socorro Baca, Claimant, v. The State of Illinois, Respondent.

      Order filed July 13, 1992.

    Socorro Baca, pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause comes on to be heard on the Respondent’s motion to dismiss, due notice having been given, no obj'ection having been filed, and the Court being advised, finds:

Claimant filed this claim seeking to recover the amount of an unemployment insurance warrant issued by the Illinois Department of Employment Security. The Division of Benefit Payment Control of the Department of Employment Security holds administrative hearings to determine whether a warrant should be reissued. The claims adjudicator denied reissuance of the warrant.

Section 3 — 104 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 104) states that jurisdiction to review final administrative decisions is vested in the circuit court. The fact that the review of the decision of the Division of Benefit Payment Control is provided through administrative review in the circuit court prevents the Court of Claims from assuming jurisdiction over claims such as the instant one. Rivera v. State (1981), 35 Ill. Ct. Cl. 375; Moore v. State (1980), 34 Ill. Ct. Cl. 108; Anaya v. State (1980), 34 Ill. Ct. Cl. 161.

We further find that Respondent’s counsel learned that, notwithstanding and unaware of the above Court of Claims decision, attorneys for the Legal Assistance Foundation of Chicago and the Department of Employment Security entered into a consent decree before Federal Judge Prentice Marshall in a case entitled Bums. As part of such decree, the parties agreed to add language to Benefit Payment Control’s written administrative decisions that suggested that a person aggrieved by the decision should proceed in the Court of Claims. Respondent’s counsel informed both the Legal Assistance Foundation and the Illinois Department of Employment Security of the jurisdictional problem of which the signers of the consent decree were unaware. The Department of Employment Security is attempting to resolve this problem by administratively reissuing or rehearing those pending cases, such as the instant one, where review was erroneously sought in the Court of Claims, so that claimants will have enough time to seek review in the circuit court.

In the motion at bar, Respondent seeks dismissal without prejudice and with leave to file if the benefit control division of the Department of Employment Security does not reissue its administrative decision. Respondent does not indicate how the Court should proceed with the case should it be dismissed and then refiled. Jurisdiction cannot be vested with a court solely based on agreement of the parties and Respondent does not suggest the cited cases are wrong.

Wherefore, it is hereby ordered that this claim be, and hereby is, dismissed for lack of jurisdiction and without leave to refile.


text:
    (No. 89-CC-0058
    Willie White, Claimant, v. The State of Illinois, Respondent.

      Order filed July 13, 1992.

    Willie White, pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause comes on to be heard on the Respondents motion to dismiss, due notice having been given, no objection having been filed, and the Court being advised, finds:

Claimant filed this claim seeking to recover the amount of an unemployment insurance warrant issued by the Illinois Department of Employment Security. The Division of Benefit Payment Control of the Department of Employment Security holds administrative hearings to determine whether a warrant should be reissued. The claims adjudicator denied reissuance of the warrant.

Section 3 — 104 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 104) states that jurisdiction to review final administrative decisions is vested in the circuit court. The fact that the review of the decision of the Division of Benefit Payment Control is provided through administrative review in the circuit court prevents the Court of Claims from assuming jurisdiction over claims such as the instant one. Rivera v. State (1981), 35 Ill. Ct. Cl. 375; Moore v. State (1980), 34 Ill. Ct. Cl. 108; Anaya v. State (1980), 34 Ill. Ct. Cl. 161.

We further find that Respondents counsel learned that, notwithstanding and unaware of the above Court of Claims decision, attorneys for the Legal Assistance Foundation of Chicago and the Department of Employment Security entered into a consent decree before Federal Judge Prentice Marshall in a case entitled Bums. As part of such decree, the parties agreed to add language to Benefit Payment Controls written administrative decisions that suggested that a person aggrieved by the decision should proceed in the Court of Claims. Respondent’s counsel informed both the Legal Assistance Foundation and the Illinois Department of Employment Security of the jurisdictional problem of which the signers of the consent decree were unaware. The Department of Employment Security is attempting to resolve this problem by administratively reissuing or rehearing those pending cases, such as the instant one, where review was erroneously sought in the Court of Claims, so that claimants will have enough time to seek review in the circuit court.

In the motion at bar, Respondent seeks dismissal without prejudice and with leave to file if the benefit control division of the Department of Employment Security does not reissue its administrative decision. Respondent does not indicate how the Court should proceed with the case should it be dismissed and then refiled. Jurisdiction cannot be vested with a court solely based on agreement of the parties and Respondent does not suggest the cited cases are wrong.

Wherefore, it is hereby ordered that this claim be, and hereby is, dismissed for lack of jurisdiction and without leave to refile.


text:
    (No. 89-CC-0847
    Richard R. Oldendorf, Claimant, v. The State of Illinois, Respondent.

      Order filed July 13, 1992.

    Richard R. Oldendorf, pro se, for Claimant.

      Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause comes on to be heard on the Respondents motion to dismiss, due notice having been given, no objection having been filed, and the Court being advised, finds:

Claimant filed this claim seeking to recover the amount of an unemployment insurance warrant issued by the Illinois Department of Employment Security. The Division of Benefit Payment Control of the Department of Employment Security holds administrative hearings to determine whether a warrant should be reissued. The claims adjudicator denied reissuance of the warrant.

Section 3 — 104 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 104) states that jurisdiction to review final administrative decisions is vested in the circuit court. The fact that the review of the decision of the Division of Benefit Payment Control is provided through administrative review in the circuit court prevents the Court of Claims from assuming jurisdiction over claims such as the instant one. Rivera v. State (1981), 35 Ill. Ct. Cl. 375; Moore v. State (1980), 34 Ill. Ct. Cl. 108; Anaya v. State (1980), 34 Ill. Ct. Cl. 161.

We further find that Respondent’s counsel learned that, notwithstanding and unaware of the above Court of Claims decision, attorneys for the Legal Assistance Foundation of Chicago and the Department of Employment Security entered into a consent decree before Federal Judge Prentice Marshall in a case entitled Bums. As part of such decree, the parties agreed to add language to Benefit Payment Control’s written administrative decisions that suggested that a person aggrieved by the decision should proceed in the Court of Claims. Respondent’s counsel informed both the Legal Assistance Foundation and the Illinois Department of Employment Security of the jurisdictional problem of which the signers of the consent decree were unaware. The Department of Employment Security is attempting to resolve this problem by administratively reissuing or rehearing those pending cases, such as the instant one, where review was erroneously sought in the Court of Claims, so that claimants will have enough time to seek review in the circuit court.

In the motion at bar, Respondent seeks dismissal without prejudice and with leave to file if the benefit control division of the Department of Employment Security does not reissue its administrative decision. Respondent does not indicate how the Court should proceed with the case should it be dismissed and then refiled. Jurisdiction cannot be vested with a court solely based on agreement of the parties and Respondent does not suggest the cited cases are wrong.

Wherefore, it is hereby ordered that this claim be, and hereby is, dismissed for lack of jurisdiction and without leave to refile.


author: Patchett, J.

text:
    (No. 89-CC-1116
    Robert Castleman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 30, 1993.

    Robert Castleman, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christine K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

Claimant was a resident of the Illinois Department of Corrections at the time of the injuries complained of. He seeks judgment in the sum of $100,000 as a result of physical injuries received from another inmate. The Claimant contends that the Respondents agents negligently failed to protect the Claimant while he was in the protective custody unit.

On February 27,1988, Claimant was held in the protective custody unit at Menard Psychiatric Center. There are 55 cells in the unit, and a shower at the end of the unit. On the date in question, the inmates were asked if they wanted to take showers. Claimant replied in the affirmative, and later he and other inmates were released from their cells. The mass release of the inmates was a traditional procedure. Claimant did, however, have the option of not taking a shower.

Approximately 11 to 15 inmates were released at one time. As the Claimant left his cell, he was attacked by another inmate and struck in the head twice. An officer was present when the Claimant was struck, and immediately put an end to the confrontation. Claimant was knocked back, and his head was injured in a very minor manner. He was cut in the left temple area leaving a very small scar that could not be observed from a distance of six or seven feet. He received medical treatment, but the wound was not sufficiently serious to require suturing. Claimant has no present problems as a result of injuries sustained.

Claimant believes that the procedure used in letting inmates out of their cells for shower purposes was a proximate cause of his injury. On cross-examination, he testified that there was no indication that the inmate in question intended to strike or assault him. The guard present stepped in and broke the incident up as soon as he saw the attack. Claimant did not see the assailant approaching prior to the assault.

The entire case is based on the proposition that the agents of the Respondent failed to give him adequate protection from attack, despite the fact that virtually no time elapsed from the time he was attacked until a guard arrived and stopped the incident.

This Court has considered similar claims on repeated occasions. In Childs v. State (1985), 38 Ill. Ct. Cl. 196, this Court reiterated the rule that, in the absence of proof that the Respondents agents anticipated, or should have anticipated, that third persons would commit criminal acts against a Claimant, there is no liability. This Court has even held that where institutional procedures were in fact violated, and the violation permitted one inmate to attack and injure another, there is no liability in the absence of proof that the agents of the Respondent anticipated or should have anticipated the attack. Carey v. State (1981), 35 Ill. Ct. Cl. 96; Daugherty v. State (1991), 43 Ill. Ct. Cl. 316.

Therefore, for the reasons stated above, we hereby deny this claim.


text:
    (No. 89-CC-1172
    Betty J. Hadley, Claimant, v. The State of Illinois, Respondent.

      Order filed July 13, 1992.

    Betty J. Hadley, pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause comes on to be heard on the Respondents motion to dismiss, due notice having been given, no objection having been filed, and the Court being advised, finds:

Claimant filed this claim seeking to recover the amount of an unemployment insurance warrant issued by the Illinois Department of Employment Security. The Division of Benefit Payment Control of the Department of Employment Security holds administrative hearings to determine whether a warrant should be reissued. The claims adjudicator denied reissuance of the warrant.

Section 3 — 104 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 104) states that jurisdiction to review final administrative decisions is vested in the circuit court. The fact that the review of the decision of the Division of Benefit Payment Control is provided through administrative review in the circuit court prevents the Court of Claims from assuming jurisdiction over claims such as the instant one. Rivera v. State (1981), 35 Ill. Ct. Cl. 375; Moore v. State (1980), 34 Ill. Ct. Cl. 108; Anaya v. State (1980), 34 Ill. Ct. Cl. 161.

We further find that Respondents counsel learned that, notwithstanding and unaware of the above Court of Claims decision, attorneys for the Legal Assistance Foundation of Chicago and the Department of Employment Security entered into a consent decree before Federal Judge Prentice Marshall in a case entitled Bums. As part of such decree, the parties agreed to add language to Benefit Payment Controls written administrative decisions that suggested that a person aggrieved by the decision should proceed in the Court of Claims. Respondents counsel informed both the Legal Assistance Foundation and the Illinois Department of Employment Security of the jurisdictional problem of which the signers of the consent decree were unaware. The Department of Employment Security is attempting to resolve this problem by administratively reissuing or rehearing those pending cases, such as the instant one, where review was erroneously sought in the Court of Claims, so that claimants will have enough time to seek review in the circuit court.

In the motion at bar, Respondent seeks dismissal without prejudice and with leave to file if the benefit control division of the Department of Employment Security does not reissue its administrative decision. Respondent does not indicate how the Court should proceed with the case should it be dismissed and then refiled. Jurisdiction cannot be vested with a court solely based on agreement of the parties and Respondent does not suggest the cited cases are wrong.

Wherefore, it is hereby ordered that this claim be, and hereby is, dismissed for lack of jurisdiction and without leave to refile.


author: JANN, J. Jann, J. Jann, J.

text:
    (No. 89-CC-1374
    Shari Holloway, a minor, by Clara Holloway, her Mother, Claimant, v. The Board of Trustees of the University of Illinois, Respondent.

      Order filed October 28, 1991.

      Order filed May 15, 1992.

      Order filed September 25, 1992.

    Brustin, Sorkin & Nussbaum, for Claimant.
    Fraterrigo, Best & Beranek, for Respondent.
   ORDER

JANN, J.

This cause coming on to be heard on the motion of Respondent for summary judgment, due notice having been given and the Court being fully advised in the premises, this Court hereby finds that:

Claimant, a student at the University of Illinois, Chicago, seeks damages for personal injuries sustained on July 29, 1987, while leaving Taft Hall on the university campus. Respondent moved for summary judgment on the grounds that Claimant could not identify a specific defect which proximatefy caused her injuries and that Claimant could not show that Respondent had notice of any adverse condition sufficient to prove that Respondent breached a duty of care to Claimant. In support of its motion, Respondent attached a series of exhibits including Claimant’s complaint, Respondent’s answer to the complaint and Claimant’s deposition.

Claimant’s discovery deposition was taken on March 28, 1991. Claimant testified that on July 27, 1987, she was at Taft Hall on the University of Illinois, Chicago campus, to meet with a teacher regarding some of her classes. Further testimony disclosed the following:

The accident occurred as Claimant and two friends were exiting Taft Hall through two sets of doors leading to a second floor bridge across Harrison Street. Claimant testified that she had passed through said doors virtually every school day prior to the accident. As Claimant was exiting the first set of glass doors, rather than using the door handle, she put both hands on the glass to open the left side door and in so doing, the glass shattered and she was injured. Both of Claimant’s friends had already passed through the outer set of doors and had their backs to Claimant at the time of the accident. There were no other witnesses to the incident. Claimant stated she saw no defect in the door prior to the accident and was unaware of anyone being injured at the Taft Hall location prior to her accident.

In an action alleging negligence, Claimant must establish the existence of a duty, a breach of that duty and an injury proximately resulting from the breach of that duty. (Horell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1259.) A party is entitled to summary judgment when there is no genuine issue of material fact and the pleadings, depositions, affidavits and other documents show that the movant is entitled to summary judgment as a matter of law. (Tunk v. Village of Willow Springs (1983), 120 Ill. App. 3d 800, 458 N.E.2d 1132.) In addition, although claimants at the time of the respondent s motion for summary judgment are not required to prove their case, they are required to present some factual basis that would entitle them to some judgment under applicable law. Kimbrough v. Jewel Cos. (1981), 91 Ill. App. 3d 813, 416 N.E.2d 328.

Liability cannot be predicated upon surmise or conjecture as to the cause of liability. (Zonta v. Village of Bensenville (1988), 167 Ill. App. 3d 354, 521 N.E.2d 274; Monaghan v. Dipaulo Construction Co. (1986), 140 Ill. App. 3d 921, 923, 489 N.E.2d 409; Vance v. Lucky Stores, Inc. (1985), 134 Ill. App. 3d 166, 168, 480 N.E.2d 177.) In Zonta v. Village of Bensenville, plaintiff was injured when he leaned upon defendants window, which subsequently shattered and caused injury. (Supra, at 356.) The appellate court of Illinois in upholding the trial court s granting of summary judgment in favor of defendant stated that plaintiff offered no hint as to what defect in the glass caused his injury other than his speculation that the glass might have been too thin. The court cited the holdings in Monaghan and Vance in pointing out that liability cannot be predicated on surmise or conjecture as to the cause of liability, but rather plaintiff must establish a prima facie case that some specific defect in the glass must be shown to have been the cause of plaintiffs injury; otherwise summary judgment is proper. (Supra, at 360.) Claimant specifically stated in her deposition that she did not know what caused the glass to break. Claimant has not made a response to Respondent's motion and has provided no evidence of any defect in the glass doors in her pleadings or testimony.

In addition to Claimant s inability to identify any specific defect that caused the glass to break, she is also unable to establish that Respondent had actual or constructive notice of any defect on the premises which is necessary to hold Respondent liable. In order to prevail against the University, Claimant must show that:

a. The University had actual knowledge that there was some defect existing in the glass and failed to remedy the situation; or
b. The defect existed for a sufficient length of time so that it should have been discovered through reasonable diligence, thereby charging the University with constructive notice of its presence. Hayes v. Bailey (1980), 80 Ill. App. 3d 1027, 400 N.E.2d 544; Hresil v. Sears Roebuck & Co. (1980), 82 Ill. App. 3d 1000, 403 N.E.2d 678.

In Claimants discovery deposition, she admits that she has no personal knowledge of whether the University of Illinois was aware of the condition of the door. She also admits that she had never seen anyone else injured by broken glass, never heard anyone complain about that door, and never personally made any complaints about the door.

The Court finds Zonta persuasive in the instant matter. Claimant has failed to identify a specific defect which proximately caused her injury and thereby cannot prove a prima facie case of negligence. Claimant has further failed to show that Respondent had notice of any adverse condition sufficient to prove that Respondent breached a duty of care to the Claimant.

Wherefore, it is hereby ordered that Respondents motion for summary judgment is granted and this cause be dismissed.

ORDER

Jann, J.

This cause coming on to be heard on Claimants motions to vacate the summary judgment order entered on October 28, 1991, and for leave to file an amended complaint, Respondents responses and objections having been filed and all parties having notice, and the Court being fully advised, it is hereby ordered that Claimant’s motions to vacate the summary judgment order of October 28, 1991, and motion for leave to file an amended complaint are denied.

ORDER

Jann, J.

This cause comes on to be heard on the motion of Claimant to reconsider an order entered May 15, 1992, denying Claimant’s motion to vacate the previous order of October 28, 1991, granting summary judgment to Respondent. Claimant has filed certain affidavits and Respondent has filed a response and motion to strike Claimant’s affidavits. The Court being fully advised in the premises finds:

1. Claimant’s motion to vacate the order of May 15, 1992, is denied.

2. The affidavit of Henry Mikdajczk is stricken from the record.


author: Frederick, J. Frederick, J.

text:
    (No. 89-CC-1443
    Joe Peterson, a/k/a Tony Bailey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 6, 1992.

      Order filed December 18, 1992.

    Robert M. Hodge, for Claimant.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Joe Peterson, filed his complaint in the Court of Claims on November 14, 1988. He seeks damages against the State for injuries he received while working as an inmate roofer at the prison at Stateville in August of 1988.

The case was tried by the commissioner assigned to the case. The evidence consists of the transcript of Claimants deposition, a medical report, and an inmate injury report, all of which were stipulated into evidence by the parties. The Claimant, after trial, has sought to introduce a group of photographs of Claimant to show the injury to the arm. The motion to admit Claimants Group Exhibit No. 4 is allowed and the photographs will be considered as evidence in the case. The State presented no evidence. The Claimant filed a brief. The State failed to file a brief.

The Facts

Claimant was an inmate at Stateville penitentiary in the Illinois Department of Corrections in August of 1988. Claimant is also known as Tony Bailey. On August 22, 1988, Claimant was working as a roofer on a roofing job at Stateville penitentiary. He had been working this job approximately IVz months, but had no previous experience with roofing work prior to his incarceration. His foreman on the job was Jim McClure. The Claimants job was to pull buckets of hot tar up to the roof with a pulley at the edge of the roof and then carry the buckets and pour those buckets into a larger bucket some six feet from the pulley. On this roof job, Claimant was on the roof. This was only his second roof job. On the first roof job, he had done most of his work while on the ground. Securing the pulley to the roof were rolls of tar paper which would eventually be used for the roofing job itself.

On the day in question, the Claimant took a five-gallon bucket of hot tar from the pulley and started to walk the six feet to the larger bin. As he lowered the bucket of tar and began walking, the bucket hit a roll of tar paper which was out of position and which was approximately four or five inches off the ground. Claimant saw the roll of tar paper just before he hit it with the bucket. Upon contact, the bucket forced some of the tar into the air, hitting the Claimant on the hand and arm and causing scarring of his right arm. He was wearing gloves at the time. Claimant admitted that he did not bother to look at the particular spot where he lowered the bucket. He was looking at his foreman. Further, the roll of tar paper was only two or three inches away from the bucket stand.

After Claimant was splattered with the hot tar, the foreman put Claimants arm in a bucket of cold water. He was then taken to the hospital. The tar, which attains temperatures of 550°, was scraped off Claimants arm and they put cream on the injury. He was told it was a third-degree burn. Claimant went to the infirmary a few times over the next month for treatment. He had pain and was given Motrin. His wound was also redressed. Once in a while, Claimants hand shakes, but there was no medical evidence relating this condition to the tar accident. The pain stopped eventually after two or three weeks. The Motrin helped with the pain. Claimant incurred no doctor bills. Claimant has various burn-mark scars on his right arm between the wrist and elbow, primarily on the inside of his arm. They range anywhere from three to four inches and are in various shapes. The medical progress notes substantiate Claimants injuries and pain.

The Law

The Department of Corrections has a duty to supervise the work of inmates in State penitentiaries and to provide inmates with safe conditions in which to perform their assigned work and to provide inmates adequate work tools. (Hughes v. State (1984), 37 Ill. Ct. Cl. 251.) The supervisory personnel of the roof work should have known that pulling hot tar on a pulley and carrying the 550° tar in open buckets presented a dangerous condition to Claimant. Having tar paper lying out of position on the roof presents an even more dangerous condition. (Reddock v. State (1978), 32 Ill. Ct. Cl. 611.) An inmate of a penal institution does not have the liberty of choice available to a person in private industry and must work under conditions that are assigned to him. This Court has recognized that an inmate of a penal institution is not ordinarily free to refuse to perform a task even if he considers his working conditions unsafe. (Reddock v. State (1978), 32 Ill. Ct. Cl. 611.) The Claimant was new to roofing work. The tar paper that was hit by the bucket, causing the hot tar to splash on Claimant, was out of place. We find that Claimant has proven that Respondent failed to provide Claimant with a safe environment in which to perform his assigned tasks. Claimant, however, has failed to show his freedom from contributory negligence. Claimant admitted he did not look where he was putting the bucket down. We find comparative negligence at 40% on the part of Claimant. Claimant had some pain for two to three weeks. The Motrin helped the pain. Claimant does have some scarring on his arm. There is no competent proof of permanent injury which would affect Claimants ability to work. (Hughes v. State (1984), 37 Ill. Ct. Cl. 251.) We find that, due to Respondents negligence, Claimant was damaged in the amount of $1,500, but that the award should be reduced to $600 due to the negligence of Claimant.

It is therefore ordered that the Claimant be granted an award in the amount of $600.

ORDER

Frederick, J.

This cause coming on to be heard on the motion of Claimant to correct award, and the Court being fully advised in the premises;

It is hereby ordered that Claimant s motion to correct the award is granted. Claimant is awarded $900 and the prior award of $600 is vacated.


author: Sommer, C.J.

text:
    (No. 89-CC-2805
    Morris Wenetsky, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 30, 1993.

    Russell J. Stewart, for Claimant.
    Roland W. Rurris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This is a claim by a former State employee for lost wages from April 7,1986, to August 22,1988.

From the testimony introduced at the hearing before Commissioner Griffin, it appears that on May 1, 1981, the Claimant, Morris Wenetsky, was employed by the office of the Secretary of State as a Storekeeper III. The position of Storekeeper III and other storekeeper titles were abolished by the Secretary of State s merit commission on September 16, 1981. All position classifications in the storekeeper category became a single storekeeper title. The Claimant was certified as a storekeeper on November 1, 1981. The Claimant suffered no loss of pay when the position classifications were abolished, and had not been certified prior to the change.

The claimant went on leave August 12, 1985, until September 19, 1985. He later went on a nonservice disability leave which expired April 7, 1986. On April 7, 1986, the Claimant returned to work, but refused to work as a storekeeper when the Secretary of State demanded that he do so. The Claimant did not return to work the next day.

The dispute centers around the fact that the Claimant was released for work by his physician with a “light duty” restriction. The Secretary of State contended that there was no provision for “light duty” in a storekeepers position, as part of the duties of a storekeeper required the lifting of various objects, so the Secretary of State refused to allow the Claimant to work.

The Claimant filed a grievance on the issue of his job classification with the Secretary of State s Department of Personnel. The grievance was denied May 12, 1986, after a hearing. The complaint filed in this Court states,

“That Wenetsky filed a Complaint in Administrative Review in 1986, which was dismissed on the grounds that a third level grievance decision is not final and appealable, and that only a Merit Board decision is appealable to the Circuit Court.”

Jurisdiction over the Claimants job classification was with the Secretary of State s Department of Personnel, the merit commission, and circuit court on judicial review. (Ill. Rev. Stat., ch. 124, par. 101 et. seq.) This Court has no jurisdiction in personnel matters where adequate remedies are provided in a court of general jurisdiction. (Halima v. State (1989), 41 Ill. Ct. Cl. 193.) Therefore, this Court has no jurisdiction to decide the issue of the Claimants job classification.

As the Secretary of State s classification of the Claimant as a storekeeper was upheld by the Department of Personnel and the circuit court, the Claimants argument that he somehow continued to be a Storekeeper III fails, absent further orders by or settlements in the circuit court.

In 1988, the Claimant filed in the chancery division of the circuit court of Cook County to seek an injunction to require the Secretary of State to place the Claimant back to work. The Claimant contends that the matter was resolved by negotiations, with a result that he went back to work and the action was dismissed. The Claimant presented into evidence no written document or third-party testimony as to any terms of the settlement which would entitle him to back wages. The Claimant simply went to work on August 22, 1988, and resigned on August 26, 1988.

There is no evidence that the Claimant returned to work with “light duty” conditions or in any capacity other than as a storekeeper. We find that the burden of proof is on the Claimant to prove the terms of any settlement which would entitle him to back wages, and we further find that he has not met this burden. It is therefore ordered that this claim is denied.


text:
    (No. 89-CC-3429
    Thiems Construction Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 10, 1993.

    Flynn & Guymon, for Claimant.
    Roland W. Burris, Attorney General (Randy E. Blue, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

The nature of this claim is breach of contract. This Court has jurisdiction pursuant to section 8(a) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, pars. 439.8(a), (b).) The Claimant asks for an award of $5,019, which represents an amount the Respondent has refused to pay due to an alleged breach of part 645, subtitle B, title 44, of the Illinois Administrative Code, dealing with the utilization of minority subcontractors in highway improvement contracts.

The facts leading up to the controversy are not seriously in dispute. Thiems Construction Co., Inc., hereinafter referred to as Thiems, and the Illinois Department of Transportation, hereinafter referred to as DOT, entered into a contract whereby it was agreed that Thiems would act as a general contractor. The purpose of the contract was to build turn lanes from Route 162 onto Interstate 255, in addition to some storm sewer work. As part of the agreement, DOT required Thiems to subcontract at least 10% of the work to disadvantaged businesses (DBE) and 2% to woman-owned businesses (WBE).

Thiems fulfilled its DBE obligations by utilizing J. Craig Construction, Inc. Regarding the WBE obligations, Thiems proposed to fulfill its obligation by allocating certain work to Nollau Nurseries, Inc., and R. McMillin Truck Service, Inc. There is no dispute that Nollau Nurseries, Inc., completed its work and was paid. DOT, however, charges that Thiems failed to comply with its contract obligations, in that it underpaid McMillin Truck Service in the amount of $5,019.

Because of the circumstances surrounding the alleged underpayment of McMillin Truck Service, DOT relies on part 645, subtitle B, title 44, of the Illinois Administrative Code, as a defense for withholding the payment. The above-cited Administrative Code provision requires a general contractor to make a written request for modification or waiver of the provision concerning the use of WBEs in the event a WBE is unable to perform. (Section 645.30, Ill. Admin. Code.) Upon receiving this request, DOT will assist the general contractor in locating another WBE by using what amounts to a master list of all qualified WBEs located in the area of the construction project. If another WBE cannot be found, DOT must modify the goal so that the goal equals the amount of work for which minority contractors have been located. (Section 645.20.) If DOT determines the general contractor has failed to use good-faith efforts in securing a WBE, or has somehow caused the WBE goal not to be met, then it is authorized to impose sanctions, including the withholding of payment for that portion of the goal which has not been met. Section 645.50, Ill. Admin. Code, supra.

In the present case, Thiems has produced evidence showing that McMillin WBE was unable to provide all the trucking services required of it. McMillin had been hired to haul dirt for the building of an embankment, but when the time for performance came, McMillin had most of its trucks busy hauling asphalt for another job. Because McMillin was unable to locate enough trucks to properly do its job, DOT was forced to hire other trucking companies to help with that haul. The testimony of Thiems indicates that had it waited until McMillin could perform, the project would have been shut down. McMillin was. therefore able to do some of the work, but not all of it. Gary Theims, Thiems’ president, testified that after receiving word of McMillin’s failure to perform, an effort was made to contact all other WBEs within an economically feasible range of the construction site, defined to be a 25- to 40-mile radius of the construction site. This effort produced an inquiry by Jaydon Construction, a qualified WBE. Due to a union conflict, that company was likewise unable to perform. No other WBEs expressed any interest in the job.

It is undisputed that, but for the trucking services, all other subcontracting and material supply for the job had been contracted out to other businesses. There is also no disagreement that, had Thiems contacted DOT on a more timely basis concerning the inability to perform by McMillin, DOT would have performed virtually the same procedure as that performed by Thiems. Although DOT disagrees with Thiems as to whether all available WBEs within the feasible range were contacted, no evidence was produced by DOT supporting their position.

In order to determine whether Thiems has met its burden in this case, it is essential to understand the definition of good faith.

“Good faith between contracting parties requires one vested with contractual discretion to exercise it reasonably and not arbitrarily or capriciously. In addition, the parties to the contract impliedly promise not to do anything that will destroy or injure the other party’s rights to receive fruits of the contract.”

(Vincent v. Doebert (1989), 183 Ill. App. 3d 1081, 539 N.E.2d 856; Prudential Insurance Co. of America v. Van Matre (1987), 158 Ill. App. 3d 298, 511 N.E.2d 740; Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 421 N.E.2d 1375.) The court in Crouch v. First National Bank of Chicago (1895), 156 Ill. 342, 357, 40 N.E. 974, 979, defines good faith as

“honest, lawful intent; the condition of acting without knowledge of fraud, and without intent to assist in a fraudulent or otherwise unlawful scheme.”

Good faith is “honesty in fact in the conduct or transaction concerned” according to the Illinois Uniform Commercial Code. (Ill. Rev. Stat., ch. 26, par. 1 — 201.) In construing the U.C.G. version of good faith, the court in Walter E. Heller & Co. v. Convalescent Home of the First Church of Deliverance (1977), 49 Ill. App. 3d 213, 365 N.E.2d 1285, 1291, said “good faith is a subjective standard to be determined by the facts in each case.” Likewise, good faith, according to Schintz v. American Trust & Savings Bank (1910), 152 Ill. App. 76, “implies honest intent. It is consistent with negligence, even gross negligence.”

In the present case, there is no doubt that the WBE goal was not met, and that Thiems failed to give timely notification to DOT of the causes of that failure. There is uncontradicted testimony, however, that Thiems tried to locate other WBEs in the area. Evidence was also produced to the effect that Thiems went out of its way to try and find other work for McMillin. In addition, it was established that Thiems had exceeded the WBE/DBE goals on earlier projects. Further, it was proven that Theims did ultimately notify DOT of McMillin s failure to perform. There is clearly no indication that Thiems intended to avoid its obligations.

In summary, it is reasonable to assume that DOT, had it known of the failure to perform, would have conducted the very same activities with respect to locating another qualified WBE as did Thiems. DOT admitted that it would be significant in their analysis if the general contractor were required to shut down the job because of problems with a WBE subcontractor. It is clear, therefore, that Thiems exercised good faith in trying to comply with the WBE goals.

Under contract law, the party seeking to enforce a contract has the burden of proving that he has substantially complied with all material terms of the agreement. (Goldstein v. Lustig (1987), 154 Ill. App. 3d 595, 507 N.E.2d 164.) Other than the notification and “good faith” issues, there is no dispute as to Thiems’ proper performance of the contract. Under section 645.50 of the Illinois Administrative Code, Thiems is entitled to full and complete payment if he can show good-faith efforts to comply with the goals, whether or not timely notice was given. As has been concluded earlier, Thiems has made good-faith efforts.

We therefore award the Claimant, Thiems Construction Co., Inc., the sum of $5,019. Sufficient funds lapsed in appropriation account code No. 902-49442-7700-0085 to cover the amount awarded.


author: JANN, J.

text:
    (No. 89-CC-3652
    Rodger Thornton, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 30, 1993.

    Rodger Thornton, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christine M. Giacomini, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant is a prisoner with the Illinois Department of Corrections. Claimant seeks money damages in the amount of $20,000 as a result of injuries he allegedly sustained as a result of a fall from an allegedly defective toilet unit.

Claimant testified that the incident in question occurred on November 15,1988. He was housed in West House of Menard. He was sitting on the toilet and it broke to the floor causing a serious laceration in his back which resulted in seven sutures. Claimant demonstrated a scar approximately four inches long located 5% inches to the left of the midline of his back on his left side on the date of his hearing. It was not a keyloid scar and was not discolored. Claimant received medical assistance and stitches approximately one hour after his injury occurred. Claimant contends that he hurt his back although the X rays taken did not reveal any damage to his bones or spine. Claimant feels his back was damaged because he claims to still have trouble with his back on a sporadic basis. Claimant states that he had no trouble with his back before the incident. Claimant contends he has been prescribed muscle relaxers but that he did not take them at the time of the hearing. He further testified that he has been X-rayed several times since the injury on his own request. Claimant testified that he was advised by the examining physicians that he suffers from scoliosis, a congenital curvature of the spine. Testimony at hearing indicated Claimants condition had not been diagnosed prior to his incarceration. However, his medical records showed no evidence of any continuing disability attributable to his injury.

Claimant testified at the time of hearing that when he is not in segregation he works out with weights on a regular basis. He further stated he is a pretty good handball player and that the injury to his back of which he complains has not affected his ability to lift weights or play handball.

Claimant contended that approximately a week to 10 days prior to the incident in question, he had notified Respondent’s agents that the toilet was defective because it leaked, and Claimant had tried to have it repaired. Claimant testified there was no indication prior to the time that he was using the toilet that it might break or fall. The unit was still leaking at the base of the toilet just prior to the incident in question.

Inmate Summers testified for the Claimant that a week or two weeks prior to the incident, a report had been made to Respondent’s agents that the toilet was loose and was leaking from the bottom. Summers testified that he personally talked to Respondents agents who told Summers, “we will get to it as soon as we can.” Summers stated that Respondent’s agent never did repair the toilet until after it broke, causing Claimant’s injury.

The uncontradicted evidence in this case indicates that Respondent was made aware of the defective toilet at least a week or two prior to Claimant’s injury. In Wassinger v. State (1988), 41 Ill. Ct. Cl. 68, this Court addressed a similar problem. This Court held that the plumbing facilities in the cells housing inmates with the Department of Corrections are under the management of Respondent. When an injury has been caused by something under the management of the Respondent, and the injury is such that in the ordinary course of events it would not have happened if Respondent had exercised proper care, the accident itself affords reasonable evidence, in the absence of an explanation, that the accident arose from the Respondents want of due care. Childress v. State (1985), 37 Ill. Ct. Cl. 269.

As in Wassinger, supra, it is clear in this case that Claimant brought the defective condition in the porcelain toilet to the notice of Respondent. Respondent was aware of the dangerous condition. Burns v. State (1982), 35 Ill. Ct. Cl. 782.

There is no question Claimant sustained a severe laceration on his back on account of the negligence of Respondent. Although Claimant complains of lingering back problems, his own testimony belies the fact that the problems have not interfered with his weight lifting or handball activities.

Based upon the foregoing, we hereby award Claimant $1,500 in full and complete satisfaction of his claim.