author: Sommer, J. Sommer, J. Sommer, C.J. Sommer, C.J. Sommer, C.J.

text:
    (No. 87-CC-1180
    Donna F. Pessin, as Executrix of the Estate of Stuart I. Pessin, deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 19, 1987.

      Opinion and order filed February 25, 1988.

      Order filed May 17, 1993.

      Opinion filed October 27, 1995.

      Order on petition for rehearingfiled March 27, 1997.

    Pessin, Baird, Belsheim & Wells (Robert E. Wells, Jr., of counsel), for Claimant.
    Jim Ryan, Attorney General (Michael Wulf, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This cause coming to be heard on the Respondents motion to dismiss, and the parties having been heard, and the Court being fully advised in the premises:

Finds that the Claimant has received over $300,000 from various life insurers of the Claimants decedent. The terms of the life insurance policies are not determinable from the present record. The Respondent has moved to. dismiss based on the long standing precedent of this Court which holds that the State is entitled to set-off the amounts of certain recoveries.accruing to the Claimant. Further, that when such set-off reaches the jurisdictional limit of $100,000, the claim against the State is dismissed.

However, this Court has not ruled on whether life insurance proceeds are subject to the set-off. It would seem that a whole life policy is a contract from which recovery necessarily would occur someday. Therefore, proceeds from a typical whole life insurance policy are not subject to the set-off. It is therefore, ordered that the Respondents motion to dismiss is denied and that this claim be sent to a commissioner for hearing.

OPINION AND ORDER

Sommer, J.

This cause coming to be heard upon the Respondents petition to reconsider this Courts ruling of November 19, 1987, due notice having been given, and this Court being fully advised in the premises:

Finds that not every claim accruing to a decedents personal representative, heirs, etc., because of the event of the decedents death is subject to being set-off under section 26 of the Court of Claims Act. Ill. Rev. Stat. 1985, par. 439.24-6.

The above section states the set-off rule. “There shall be but one satisfaction of any claim or cause of action and any recovery awarded by the Court shall be subject to the right of set-off.”

It is the Respondent’s argument that section 26 means that “No Claimant may be compensated by a Court of Claims award * * * when that Claimant has already been satisfied from any other source.” Page 6 - Respondents Memorandum.

“‘Satisfaction’” is defined as * * * paying a party what is due him # # or awarded to him by the judgment of a Court or otherwise.” (Black’s Law Dictionary 4th Edition, p.1509.) For example, however, for this Court to rule that a decedent’s spouse succeeding as a joint tenant to the marital home because of the decedent’s tortious death may not recover damages in the Court of Claims because she has already been satisfied would not be credible. This is because the benefit received by the spouse is not satisfaction. It is not a payment of damages by a tortfeasor to compensate for the injury, rather it is pursuant to a pre-existing property right which has no relationship to the tortious damage.

Whole life insurance is much the same. The benefit is pursuant to a pre-existing contract, paid for by the decedent, which will be performed someday no matter how the death is caused. The value may seem to be related to the tortious damage, but it is more a matter of actuarial tables and willingness to pay. A 90-year-old man is compensated the same as a 40-year-old man.

The rule in this order is to apply to whole life insurance only. It is therefore ordered that the Respondents petition to reconsider this Courts ruling of November 19, 1987, is denied, and the commissioner is instructed to take evidence of the terms and conditions of insurance payments made and include such in his report to this Court.

ORDER

Sommer, C.J.

This cause coming to be heard on the motion of the Court, and this matter having been argued before this Court on February 18, 1993, and this Court being fully advised finds:

1. That this Claim was tried before the commissioner on June 3,1991.

2. That the commissioner ruled, subject to the opinion of this Court, that a retained expert witness, Robert Mains, might testify on behalf of the claimant.

3. That at no time was disclosure of this expert’s identity made to the respondent pursuant to Supreme Court Rule 220(b).

4. That no scheduling orders were entered concerning disclosure of experts; and the respondent did not attend any of the pre-trial proceedings where such might have been discussed.

5. That the Respondents attorney objected to the testimony of the expert at the trial, due to lack of disclosure.

6. That this Court is required to strike the testimony of the expert under Rule 220(b). Barth v. Reagan (1990), 39 Ill. 2d 399; Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1992), 154 Ill. 2nd 543.

7. That tire purpose of the timely disclosure of expert testimony is to avoid surprise.

8. That justice would be best served by this Courts remanding this claim to the commissioner for re-trial and scheduling of expert testimony.

It is therefore ordered that this Claim be remanded to the commissioner for re-trial. The commissioner shall make scheduling orders allowing for the disclosure of expert testimony, including the testimony of Mr. Mains; and the parties by stipulation may preserve any testimony from the June 3, 1991, trial. i

OPINION

Sommer, C.J.

This is a wrongful death action brought by the executrix and widow of Stuart Pessin, deceased, on behalf of the decedents estate, herself, and the decedents two minor children.

The Claimants deceased husband, Stuart Pessin, was driving his automobile on Illinois Route 15, St. Clair County, Illinois, on December 9, 1985. At approximately 6 p.m. the decedents automobile veered into oncoming traffic, where it spun and collided with an automobile head-on, killing Mr. Pessin. At the site of the accident, approximately one-half mile east of the Lady of Snows Shrine, the highway was four lanes, gently curving to the right when driven westerly, and divided by a median three inches high. The decedent was driving westerly in the inside lane.

Evidence introduced at the hearing indicated that there was light rain at the time of the accident; and it had been raining for at least an hour before the accident, accumulating to about one-tenth (.1) of an inch. There was testimony that water was standing to a maximum depth of one to one-and-a-half (l-lfi) inches in the inside lanes of the highway; and records of the Department of Transportation indicate that water tended to pool in the inside lanes during heavy rains, probably due to a heaving of the outer lanes, inadequate drainage, and rutting.

The Claimants theory of the accident is that Mr. Pessins automobile hydroplaned upon hitting standing water and went across the low median uncontrollably. Additionally, the absence of super-elevation at the curve would tend to cause an automobile to drift toward the median when traveling westerly; and the lower median would not restrain an out-of-control automobile. Hydroplaning upon the accumulation of water in combination with the other cited factors is alleged to have been the cause of the accident; and the accumulation of water allegedly was due to the negligent inaction of the Department of Transportation. Said Department, the Claimant maintains, had notice of the condition, due to five other accidents which had occurred at the site prior to the present accident over an almost five-year period.

If this Claim had been made against a unit of local government, it would be subject to a motion to dismiss, as injuries caused by the effect of weather conditions on local roads are not compensable. (745 ILCS 10/3-105.) However, no such statute applies to State highways.

The State is not an insurer against every accident on its highways, even if the accident is caused by a defect in the highway. (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225.) The State has a duty to keep its highways reasonably safe for ordinary travel by persons using due care and caution for their safety. (Berry v. State (1968), 26 Ill. Ct. Cl. 377.) Liability has been found for failure to maintain its highways when the State had actual or constructive notice of the hazard created by the failure of maintenance. Siefert v. State (1989), 42 Ill. Ct. Cl. 8.

A Claimant is required to prove by a preponderance of the evidence that a defect or hazardous condition existed at the site of die accident; that the State had actual or constructive notice of the defect or hazardous condition; and that the defect or hazardous condition was the proximate cause of the accident. (Cataldo v. State (1983), 36 Ill. Ct. Cl. 24.) The States duty to remedy a defect or hazardous condition depends upon the “magnitude of the risk involved, the burden of requiring the State to guard against the risk, and the consequences of placing such a burden on the State.” Wilson v. State (1989), 41 Ill. Ct. Cl. 50, 55.

In the present Claim, reports compiled by the Department of Transportation since 1980 indicate an awareness of a problem of standing water on Route 15 near the scene of the accident. Various corrections subsequently were suggested.

In early 1987, after the accident in this claim, but prior to any repairs being made to Route 15, District 8 of the Department of Transportation prepared a project report covering Route 15 from the Shrine entrance to Illinois Route 13. The accident statistics in the report were from 1981 through 1986. Excerpts from the project report are as follows:

“The purpose of this project is to improve a hazardous highway section which has contained several identified high-accident locations * * “ .
"'An inordinately high number of accidents (19%) along this stretch involve vehicles crossing over the raised median. Three fatalities have occurred as a result thereof. Of these cross-over accidents, 39% were wet road and 6% were ice/snow related.
The primary cause of accidents along this section is vehicle hydroplaning resulting from severe rutting * ° *.
Other conditions which contribute to retaining water on the pavement are shoulders which drain toward the roadway, low super-elevation and extreme rutting * *

In the present case, no one knows what caused the accident, as the driver did not survive. According to eye witnesses, the driver was not speeding, and the automobile experienced no mechanical failure that could be detected afterward. Kevin Mafpe, an eye witness, stated that “* s e it was immediate, he didn’t fishtail or anything, he just came across the median.” Henry-John Brenner, another eye witness, stated that Mr. Pessins auto “veered off.”

This Court has made awards in cases of accidents allegedly caused by water standing on a highway: National Bank of Bloomington v. State (1980), 34 Ill. Ct. Cl. 23; Sallee v. State (1990), 42 Ill. Ct. Cl. 41; Scott v. State (1990), 43 Ill. Ct. Cl. 85; and has denied others: English v. State (1982), 35 Ill. Ct. Cl. 180; Reidy v. State (1975), 31 Ill. Ct. Cl. 53; Wilson v. State (1989), 41 Ill. Ct. Cl. 50.

An examination of the claims in which awards were made or denied for accidents allegedly caused by water standing on the highway leads to the conclusion that each claim turns on the facts peculiar to it. Some of the claims lacked notice by the State of a hazardous condition. In others deep water was hit. In only one claim was hydroplaning found to be a cause sufficient for recovery, that being in Sallee.

In Sallee, there was approximately one inch of water standing across the highway. The state trooper who was first on the scene testified to “skid marks beginning where the automobile hit the water.” (Sallee, p. 45.) Additionally, the roadway was covered with water over its entire width for ten feet.

In National Bank of Bloomington, the driver who was killed hit standing water eight to ten inches deep. In Scott, there was testimony that the auto did not hydroplane but hit deeper water and veered.

In English, the Court refused to draw the conclusion that the vehicle that crossed the center line in rainy conditions hydroplaned, even though an expert and a state trooper testified that hydroplaning occurred. The Court ruled that to find that the collision occurred because of hydroplaning is speculation. The driver survivéd the accident, but he did not testify. Additionally, there were unresolved questions regarding the presence of liquor and the condition of the automobile. In Wilson, there was no proof of what caused the accident, though there was water standing on the road.

In the present claim, the Claimant’s expert, Robert Mains, after reviewing documents obtained from the Department of Transportation, testified that to a reasonable degree of engineering certainty the highway in question was unreasonably dangerous at the time of the accident; and that such condition was reasonably foreseeable by the State. When asked whether to a reasonable degree of engineering certainty the “unreasonably dangerous condition” caused the fatal accident, he responded, “It certainly was highly contributory.”

The Claimants second expert, Duane Dunlap, concurred in his deposition with Mr. Mains’ assessment. The only difference in his opinion testimony was that in response to the question concerning whether the “unreasonably dangerous condition” was a proximate cause of Mr. Pessin’s accident, he answered, “Yes.” He further testified that the action of the automobile was “certainly consistent with a hydroplaning accident.” Mr. Dunlap then provided a detailed discussion of hydroplaning.

Mr. Dunlap testified that in circumstances of hydroplaning, even at or lower than at highway speeds, a driver would have little expectation of the dangers ahead and would have little or no control over the vehicle once it began to hydroplane. He testified that such acts as applying the brakes, steering to avoid the hazard and taking ones foot off the gas pedal could make the danger worse.

In addition, there was evidence that Mr. Pessin’s vehicle was inspected per State of Missouri regulations just four days before the accident, and there was no evidence of vehicular defects.

The Claimants attorneys are asking us to make certain findings in order to establish liability on the part of the State. First, that the decedent’s automobile hydroplaned on water standing against the center median and that said hydroplaning was the proximate cause of the accident. Second, that the condition of the road at the accident site was unreasonably dangerous; that the State had knowledge of the condition because of its studies and the number of accidents that occurred at the site; and that the State failed in its duty to eradicate the unreasonably dangerous condition.

As to the first issue, there was no physical evidence of hydroplaning as there was in Sallee. The Claimant presented a case for hydroplaning which did not necessarily exclude other causes.

“The causes of one skidding an automobile on a wet or icy pavement are manifold, and are most often hidden within the breast and mind of the operator of the skidding car.” Murphy v. Kempler (1951), 344 Ill. App. 287, 100 N.E. 2d 660, 662.

Both of the Claimant’s experts testified that the action of the decedent’s automobile was “consistent” with hydroplaning. As in English, we find that the testimony by the Claimants experts that the decedent’s automobile hydroplaned was speculative and not sufficient proof of hydroplaning. Indeed, the testimony in English was more emphatic than that in the present claim.

As to the second issue, the experts testified that the highway at the scene of the accident was unreasonably dangerous due to the tendency of water to flow to the inner lanes along the media, the low median itself, the rough road, the lack of super-elevation at the slight curve where the accident took place, and the accident history at the site.

The Department’s project memorandum of April 17, 1987, (Claimant’s exhibit #11), from which many of the quotations and statistics in the Opinion derive, states that the average daily traffic volume was 13,600 in 1985. The Claimant’s expert, Mr. Mains, referred to the average daily traffic volume in his testimony and characterized it as “moderately high volume.” The average daily traffic count when extended over a year would give a count of approximately five million vehicles on the road in question per year. The number of automobiles going through the accident site in the westerly lane would be at least 2.5 million. The only accident at the site in 1985 was the decedent’s. Over six years, at least 15 million automobiles would be in the position of the decedent’s; and yet only eight accidents occurred at the site, four in wet weather. Prior to the present accident there were five accidents at the site in the preceding five years; none were fatal.

Hundreds of thousands of motorists went through the accident site without accidents in wet weather in 1985; and a few million vehicles went through the accident site over six years in wet weather, with four accidents occurring in wet weather. Thus, the number of accidents at the site compared with the traffic count appears very low. The fact that three of the accidents at the site were head-on and three were sideswipes over a six-year period indicates that when accidents did occur they had a potential for substantial harm. Head-on accidents are more severe due to the doubling of the impact velocity.

The States duty to remedy a hazardous condition, if we were to find that such existed at the crash site, depends as stated in Wilson upon the “magnitude of the risk involved, the burden of requiring the State to guard against the risk, and the consequences of placing such a burden on the State.”

We have seen that when accidents did occur at the site of the present accident there was a risk of substantial harm. We have seen also that in light of the traffic flow volume past the site of the accident the incidence of accidents appears minimal, though no testimony was entered on this point by either party. The project report speaks of “high-accident locations” which do include the accident site. However, this is a conclusion drawn by the writer of the 1987 report and is not binding on this Court when considering an accident which occurred in 1985.

The burden placed on the State to remedy the condition at the crash site was great. Apparently, warning signs or lights would not have been a sufficient remedy. According to Mr. Dunlap, signing would have been of “minimal use” and a flashing light “might have some effect.” Both experts agreed that the proper remedy was to build a new road and install median guards.

The consequences of the burden placed on the State would be that the State would have to make a determination based upon accident history and road conditions that it must act. The State would then have to develop plans, obtain priority for funding over other sites in the State with accident histories, have the funds allocated and let contracts. All this would have to be undertaken and completed on the evidence of five accidents over the previous five years, of which this Court knows little as to the cause or fault of the drivers, and on the fact that there were no fatalities at the accident site at issue for over five years prior to the Claimants decedents accident in late 1985.

The lack of substantial accident history when compared with the fact that a few million automobiles passed through the accident site in wet conditions without fatal mishap, coupled with the fact of the great burden placed upon the State to repair the site and sites like it, leads us to the finding that the State did not breach its duty when it did not repair the site prior to the Claimants decedent’s accident. It is therefore ordered that this Claim is denied and dismissed.

ORDER ON REHEARING

Sommer, C.J.

This cause returns on Claimants’ petition for rehearing following the opinion of this Court entered on October 27, 1995. Claimants’ petition was argued before the full Court on November 12, 1996, after having been scheduled on previous occasions which were inconvenient for one or more of the parties.

This Court’s opinion set forth the elements which were Claimants’ burden to prove in order to sustain this claim:

“A Claimant is required to prove by a preponderance of the evidence that a defect or hazardous condition existed at the site of the accident; that the State had actual or constructive notice of the defect or hazardous condition; and that the defect or hazardous condition was the proximate cause of the accident.” Cataldo v. State (1983), 36 Ill. Ct. Cl. 23, 25.

Claimants once again argue that various defects in the highway, in conjunction with rain, caused the decedent’s automobile to hydroplane, which led to his death.

This Court has never found hydroplaning to be the proximate cause of any automobile accident unless there was some actual physical evidence of hydroplaning. To reflexively conclude that hydroplaning occurred just because a highway was wet is not permissible, for that is too speculative. English v. State (1982), 35 Ill. Ct. Cl. 180, 185.

It is undisputed that there was no physical evidence here of hydroplaning. Nonetheless, Claimants contend that hydroplaning should be found to be the proximate cause based on testimony from one of Claimants’ experts and portions of a 1993 request for admissions that was never answered by Respondent.

Expert testimony requires more than speculation:

“[T]he existence of a fact may not be inferred when the existence of a fact inconsistent with the first can be inferred with equal certainty.” Damron v. Micor Distributing, Ltd. (1995), 276 Ill. App. 3d 901, 909, 658 N.E.2d 1318, 1324.

Here, one of Claimants’ experts testified that the action of the decedent’s automobile was “consistent with” hydroplaning. Of course, the action of the vehicle would also be consistent with the decedent’s having fallen asleep, with the decedent’s having taken his eyes off the road to tune the radio, or with many other possible causes uniquely within the decedent’s control. Thus, the expert’s hydroplaning theory does not meet the Damron standard, for there is nothing to rule out the equal viability of alternate theories of causation.

With respect to the unanswered request for admissions, Claimants’ counsel did not “prove-up” the unanswered requests as required by Illinois law. (See, e.g., Banks v. United Insurance Co. of America (1975), 28 Ill. App. 3d 60, 62, 328 N.E.2d 167, 169.) And even if Claimants were somehow to be entitled to place the unanswered requests into evidence at this late stage, there is nothing in them which proves that the decedents automobile had actually hydroplaned. Rather, request no. 28 states:

"The primary cause of accidents along Illinois Route 15 east of Route 157 in the area when the accident to decedent, Stuart I. Pessin, occurred was hydroplaning resulting from severe rutting * * *.”

and request no. 40 states:

“The testimony of the eyewitnesses is consistent with the decedents vehicle hydroplaning.”

These requests, even if taken in the light most favorable to Claimants, simply do not satisfy Claimants’ burden of proving that this particular accident was actually caused by hydroplaning.

In short, Claimants merely advanced a theory as to how the accident occurred; they failed to produce sufficient evidence to sustain that theory and meet their burden of proof on causation.

Claimants’ failure to sustain this burden of proof is dispositive of the htigation. Accordingly, we need not address Claimants’ criticisms of the court’s statistical analysis of the traffic data from the accident site.

It is therefore ordered that Claimants’ motion for rehearing is denied.


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (Nos. 87-CC-2817, 87-CC-2905 cons.
    Hope D. Hughes, and Marjorie Ocasek, as Administrator of the Estate of Donna Scalafani, Deceased, Claimants, v. The State of Illinois, Respondent.

      Order filed April 25, 1997.

    Reibman, Hoffman & Baum, and Conney & Conway, for Claimants.

      Jim Ryan, Attorney General (Sebastian N. Danziger, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause coming on to be heard on the Respondent’s, State of Illinois, motion to dismiss pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (735 ILCS 5/l-619(a)(5)) and section 790.90 of the Court of Claims’ Regulations (74 Ill. Admin. Code 790), the matter having been fully briefed, and the Court being otherwise duly advised in premises:

The court finds Donna Scalafani and Hope D. Hughes were traveling southbound on North Lakeshore Drive in the city of Chicago on March 17, 1986. A vehicle in the northbound lanes allegedly crossed the center median, colliding with Claimants’ vehicle. The Claimants were injured. Scalafani’s injuries were fatal.

The Claimants, Hughes and Ocasek, each filed a cause of action on March 16, 1987 (for Hughes) and on March 17, 1987 (Kahn, later substituted by Ocasek, for Scalafani). The Claimants claim that the State was negligent in its design and maintenance of the area of Lake Shore Drive on which the incident occurred.

The Respondent filed a motion to dismiss the Claimants’ claims based upon the Claimants’ failure to exhaust remedies. The roadway was subject to an agreement with the city of Chicago and the Respondent. The Claimants filed suit against the city in Circuit Court. This Court placed these matters on general continuance pending the Circuit Court’s decision.

In their case against the city of Chicago, the Claimants asserted the identical theories of liability as asserted against the State, negligent design and negligent maintenance. The city of Chicago filed for summary judgment.

The Court granted summary judgment to the city as to the negligent design claim, based on the statute of repose barring Claimants’ claims. The Court denied the city’s summary judgment motion on the negligent maintenance issue.

The Claimants did not proceed to trial on the remaining negligence maintenance issue. Instead, the Claimants chose to voluntarily dismiss their negligent maintenance claims. With their voluntary dismissal making the summary judgment final, the Claimants chose to appeal the decision on the negligent design issue. See Ocasek v. City of Chicago (1995), 275 Ill. App. 3d 268, 656 N.E.2d 44, 211 Ill. Dec. 852.

The Circuit Court found that in 1966, the city of Chicago, the Chicago Park District, the County of Cook and the Respondent entered into an agreement to redesign Lake Shore Drive. The redesign included the location of the relevant automobile accident. (Id. at page 46.) The Circuit Court found that IDOT had accepted the city’s redesign on March 28, 1969. (Id. at page 47.) Thus, the statute of repose began running on the date of IDOT’s acceptance. The effect was to bar the Claimants’ claims. Id.

Discussion

The Respondent raises two arguments for the dismissal of these actions: the statute of repose bars the Claimants’ claims against the Respondent and that the Claimants failed to exhaust their remedies against the city.

Claimants filed their negligent design claims in March of 1987. The subject portion of the roadway was redesigned as part of a joint agreement between the city of Chicago, the Chicago Park District, Cook County, and the Respondent. The Respondent accepted the redesign project on March 28,1969.

Section 13 — 214 of the Code of Civil Procedure provides:

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

The relevant automobile accident occurred more than ten years following the acceptance of the redesign project by the Respondent. Hence the Court holds that these claims are barred by the statute of repose.

Even if the statute of repose did not bar the Claimants’ claims, we would still dismiss this matter based upon the Claimants’ failure to exhaust all other remedies. Section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations require Claimants to exhaust all other remedies, whether administrative, legal or equitable, before seeking a determination of claim by the Court of Claims. (705 ILCS 505/25, 74 Ill. Admin. Code 790.60.) Failure to exhaust all other remedies shall be grounds for dismissal. (74 Ill. Admin. Code 790.60.) The Court of Claims has stated that the exhaustion requirement is not an option to be accepted or ignored by Claimants. It is mandatory. See Lyons v. State (1981), 34 Ill. Ct. Cl. 268, 271-72.

In the instant case, the Claimant had an alternative recovery source, namely the city of Chicago. The trial on the issue was ready to proceed. Instead of exhausting the remedy against the city of Chicago for its claim of negligent maintenance at trial, the Claimants abandoned their claim by voluntary dismissal. The Claimants made a choice not to exhaust their remedy against the city of Chicago. To allow an action to proceed where an alternative remedy exists but was abandoned on the brink of trial renders the exhaustion requirement meaningless. The exhaustion requirement cannot be circumvented by Claimants filing actions against alternative recovery sources and then abandoning the actions. The requirement of exhaustion means exactly what it states, namely that Claimants must exhaust their remedies. Failure to do so requires dismissal of these actions.

It is therefore ordered, adjudged, and decreed that these claims be, and they are hereby, dismissed and forever barred.


author: Patchett, J.

text:
    (No. 83-CC-0314
    State Farm Ins. Co., as Subrogee of Evangelical Child & Family Agency, Claimant, v. The State of Illinois, Respondent.

      Order filed July 1, 1996.

    Garretson & Santora, Ltd., (Richard S. Spencer, of counsel), for Claimant.
    Jim Ryan, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This is a subrogation claim. State Farm insured a vehicle driven by Barbara Jean Hellmer which was involved in an accident with an Illinois Department of Transportation truck. The State had previously sued in Circuit Court to recover the amount of workers’ compensation paid to their employee, the driver of the truck. This case was settled with the State receiving the amount sought. However, the settlement resulted in a dismissal of the action, not a judgment or court order.

State Farm now brings an action in the Court of Claims for recovery of the amount of money paid by it for damage to the vehicle driven by Mrs. Hellmer. It should be noted that State Farm originally brought a cause of action in circuit court, but that was dismissed because of sovereign immunity.

A trial was held in this matter before a commissioner of this Court. Many objections were made as to the introduction of evidence regarding the other lawsuit. In addition, the attorney for the Respondent attempted to raise the issue of res judicata or collateral estoppel. However, because the prior lawsuit was settled without benefit of a final court order or judgment, the doctrines of res judicata and/or collateral estoppel do not apply. It appears that the prior matter was setded via an agreed or stipulated order of dismissal. This will prevent the Respondent from now arguing that it was a sufficient adjudication on the merits for the purposes of raising the doctrine of res judicata. It actually appears that there is a split of authority in Illinois cases as to whether a dismissal with prejudice pursuant to a settlement is sufficient to raise res judicata. Caporale v. Shannon Plumbing Company, Inc. (1974), 20 Ill. App. 3d 511, 314 N.E.2d 540, holds that where parties stipulate to dismiss a suit with prejudice as a matter of administrative convenience, they will be estopped from arguing that this was an adjudication on the merits. However, Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621, 373 N.E.2d 565, 15 Ill. Dec. 219, holds that if a court approves a settlement, it merges all included claims and causes of actions and is a bar to further proceedings. The case further holds that a dismissal with prejudice is as conclusive of rights of parties as if suit had been prosecuted to a final adjudicátion adverse to the plaintiffs.

From the apparent split of authority on this issue, we must apply the facts of this case. In this case, the Claimant filed a counterclaim in circuit court. That counterclaim was dismissed on the basis of sovereign immunity. Therefore, all prior claims and causes of action could not be merged by virtue of the settlement and previous dismissal in circuit court. Therefore, we decline to apply the issue of res judicata in the present case. Because of that, we must decide this case based on the evidence presented.

Mrs. Hellmer testified at trial. The State presented no evidence. The Court has considered the departmental report which was submitted by the State. Based on the evidence presented, State Farm has met its burden of proof on the issue of liability. Damages are basically uncontested. Therefore, State Farm is awarded the sum of $1,272.58, the actual amount paid out by State Farm.


author: Epstein, J. Epstein, J.

text:
    (No. 88-CC-1610
    Kay E. Hefti, Administratrix of the Estate of Troi P. Hefti, deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 7, 1996.

      Opinion as modified on rehearingfiled June 30, 1997.

    Hamm & Hanna (Tracy C. Litzinger, of counsel), for Claimant.
    Jim Ryan, Attorney General (Terence J. Corrigan, Assistant attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This is a wrongful death claim brought by the ad-, ministratrix of the decedents estate, his mother, alleging negligence by the Department of Mental Health and Developmental Disabilities (DMHDD) at its Zeller Mental Health Center which allegedly caused or negligently permitted the suicide of the decedent, Troi Hefti, a 17-year-old patient at the time of his death on June 24, 1987.

This cause is before us for final ruling, following a trial before our former commissioner, Richard H. Parsons, on May 19, 1993. Commissioner Parsons’ report and recommendations were submitted to us, as was the trial transcript. This opinion follows our own detailed and lengthy review of this said and very difficult record.

Summary of the Claim

Claimant Kay Hefti. brought this claim in 1988 in her capacity as the administratrix of the estate of Troi Hefti. Essentially, the allegations are that Troi Hefti was an extremely troubled boy from an early age who had been physically self-abusive for a long time and had been repeatedly diagnosed as such and as seriously dangerous to himself, and had long been in State DMHDD facilities where his behavior and diagnosis were well known. Claimant advances two theories of DMHDD negligent culpability for Troi Heftis suicide: (1) the actions of a DMHDD physician who without any reasonable basis unilaterally ordered the cessation of the 15-minute suicide watch on Troi, on the day of his suicide; and (2) the oversight of DMHDD staff in leaving a hanging instrument openly available to Troi in the shower of his facility, where he obtained it and hung himself.

The State, for its part, filed a counterclaim seeking reimbursement for its expenses of caring for Troi Hefti, pursuant to the provisions of the Mental Health Code. This counterclaim is sought, essentially, as an offset against any award that might result.

The Facts

On June 24, 1987, Troi Hefti was a resident and patient in the George A. Zeller Mental Health Center ("Zeller”) when he was found hanging in a bathroom at approximately 6:15 p.m. on that day. The underlying facts are sad and not seriously controverted.

Troi Hefti was born February 16, 1970, and began having behavioral problems at about age five. He was first institutionalized at age 11. He had been in various institutions over the last six or seven years of his life. His history showed extreme and bizarre self-abusive behavior which regularly resulted in serious and permanent injuries. Troi was a problem child and a problem patient. He was a frequent resident of Zeller in particular, where his self-abusive behavior and suicide threats were well known. Ultimately, that pattern of behavior resulted in his death.

Troi was last admitted to Zeller on August 20, 1986, ten months before his death; he had been a patient at Zeller on five previous occasions. His typical modus operandi was to tell anyone anything in order to get his own way. He was adamantly opposed to discipline and to reductions of his privileges. The trial evidence, particularly the testimony of several professionals, showed clearly that the staff at Zeller knew of Troi s self-abusive behavior and occasional suicide threats.

On the day of Troi s death, the physician in charge (the “staff physician”) of the childrens adolescent unit at Zeller, in which Troi was resident, was Dr. James L. Weiler who was filling in for Dr. Marcia Aranas. Dr. Weiler was somewhat familiar with Troi s behavior history and some of his prior episodes.

Dr. Weiler knew that Troi had threatened to kill himself (by putting a necktie around his neck) on December 22, 1986. Dr. Weiler knew that Troi had frequent outbursts of aggression in March 1987, and was unable to handle his anger and frustration, and was also aware that in May 1987, Troi was so frustrated and upset over his mother having removed his clothes (in order to discourage his frequent breakouts or “elopements”) that he became self-abusive, suicidal and threatened to kill himself and others. Dr. Weiler recalled that on one occasion Troi grabbed a pair of sewing scissors and threatened to gouge his own eyes out. He also knew that after Trois elopement from and return to Zeller, Troi had stated that he would not hesitate to do bodily harm to himself if “pushed to the limit.”

Dr. Weiler did not recall that Troi told his mother that he was going to do something to himself several days before the suicide. Director Roland Chambers testified that Dr. Weiler and he talked to Troi about the statement Troi had made that he was going to kill himself and at that time Troi said that he was not suicidal.

Approximately one week before Trois death, he told his mother he was considering suicide. She was deeply concerned and believed her son. She discussed this with the staff personnel and the director of the unit at Zeller. She strongly disagreed with Mr. Chambers opinion that Troi was just trying to get attention and that the behavior just needed to be ignored.

Roland Chambers, director of the unit, testified that he knew Troi had, in fact, injured himself intentionally on more than one occasion. He was aware that Troi had jumped out of a moving vehicle that resulted in the amputation of his arm below the elbow. Mr. Chambers also was informed about the time Troi hung from a third-story window and the time when Troi purposely slammed his fingers in a door to cause injury. He knew about the incident where Troi threatened to gouge out his eyeball with scissors and the time when Troi slammed his fist into the wall. He acknowledged that Troi had been on the status of SOS (suicidal precautions) in the past at Zeller. A week before Trois death, Mr. Chambers was made aware that Troi stated to several people that he was going to kill himself. This was also entered in Trois chart.

Nevertheless, on the date of Trois death, Dr. Weiler ordered a discontinuation of the 15-minute suicide checks on Troi.

The charge nurse, Delaine Gamble, was acquainted with the threats Troi made to harm himself and was aware of the various times Troi did harm himself. She testified that he previously injured himself four or five times. She knew that Troi had said he would be out of there one way or the other several days before he committed suicide. She stated that all threats had to be put on his chart. She recalls that Troi was on suicide precaution a couple of times in the past.

Mary Grimes, a registered nurse on the unit, was asked to transfer to this unit because three other nurses were absent. She also knew about the previous times Troi had injured himself. She had heard from other staff that Troi threatened to take his life a few days before he actually committed suicide. She knew that Troi had been taken off the 15-minute checks. However, she testified that she and charge nurse Gamble did not agree with that decision, that they kept a regular watch on Troi despite the order and that they tried to know where Troi was at all times because they knew of his elopement and suicide threats.

Nathan Dixon, a mental health technician on the unit, knew of Troi’s self-inflicted injuries and of the recent threat of suicide. He testified that on each occasion that Troi threatened to elope or eloped, when he returned he would state he was not going to do that again which was also his behavior after each occasion that Troi injured himself.

On the day of Troi’s death, he was able to go unattended into the showers in his unit at Zeller, where bandannas and shower hooks were provided by the DMHDD, and which Troi Hefti used, finally, to make good on his threats of suicide.

Analysis

1. The Law of the Claim

The State and its agencies, including the DMHDD, owe their wards and patients the duty of protection and reasonable care. These duties of care must take account of the patient’s known condition, and may include safeguarding a patient from dangers due to mental or physical incapacities that are known to the State, or that by the exercise of reasonable care ought to be known by the State. However, as our opinions constantly emphasize, the State is not an insurer of the safety of the patients under the care of its agencies, including DMHDD. Reynolds v. State (1983), 35 Ill. Ct. Cl. 647, 649.

As in any suit predicated on negligence, the elements of recovery are the breach of a duty of care, consequential injury resulting proximately from the breach, and damages. In a wrongful death suit, the damages recoverable include the statutorily allowed pecuniary damages for loss of present and future support for those dependent on the decedent (740 ILCS 180/2), as well as loss of society and consortium, but not in the case of deceased children subject to deduction of child-rearing expenses, but recovery is not allowed for mental anguish of the survivors. Bullard v. Barnes (1984), 102 Ill. 2d 505, 486 N.E.2d 1228; Drews v. Global Freight Lines, Inc. (1991), 144 Ill. 2d 84, 578 N.E.2d 970; Holston v. Sisters of the Third Order (1991), 247 Ill. App. 3d 985, 618 N.E.2d 334.

2. The Liability Issue

This record is replete with evidence of repeated serious self-abuse and ongoing suicide threats by Troi Hefti, all of which were well known to the Zeller staff of the DMHDD. It is clear to this court, after review of this record, that the DMHDD staff at the Zeller Center were negligent in both of the key respects alleged.

First, Dr. Weilers order striking the standing 15-minute checks on Troi was as culpable and irresponsible a medical action as this court has seen in a long time. No basis was shown that might possibly have warranted that decision at the time, based on what Dr. Weiler actually knew and what he should have known from the records and the consensus of his staff. The record provides no basis, after the fact, that might justify that decision.

However, as negligent and almost cavalier we find that decision to have been, we cannot and will not find liability on the basis of Dr. Weilers negligence. This is because of the testimony of the Zeller staff on Trois unit that they essentially ignored Dr. Weilers removal of the 15-minute checks on Troi. These staffers, more sensible by far than their medical supervisor, tried their best on a difficult service and although sadly that was not enough to prevent Trois suicide, their efforts break any possible chain of causation between Dr. Weilers order and the death of Troi Hefti. Thus, this act of negligence cannot be a proximate cause of Trois suicide.

On the other hand, the failure of the DMHDD to prevent access to potential and fairly obvious suicide devices, and to leave such materials in a readily accessible place on the unit which is frequented by a known suicidal patient in a mental- facility is another matter altogether. While we do not doubt for a minute, based on this record, that the Zeller staff tried to patrol the area, it is clear that those efforts were not adequate. We are persuaded in good measure because of the location and frequency of access of the suicide location. It was a failure of due care not to patrol the shower area constantly, as hanging in showers is a known and unfortunately well established suicide technique in institutions. But for Trois access to the bandanna in or proximate to the shower area, he could not have killed himself that day by any other means that have been shown to be available to him at the Zeller unit.

Respondents argument that the decedent was not labeled “suicidal” at the time of his death is unpersuasive and almost an admission of negligence in light of the overwhelming evidence in this record. This court is sensitive to the ease with which after-the-fact reviews by courts and other laypeople can second guess medical professionals whose knowledge and perspective at the time, and under trying and pressured circumstances, is very different and whose decisions and actions must take place in a very different context than our more leisurely review. However, this is not a difficult case in terms of the key personnels knowledge and professional understandings at the time. If Troi Hefti was not diagnosed or labeled suicidal on the day of his death, someone blew it very badly.

Moreover, by DMHDDs own standards, something was wrong, as its treatment plans specify that patients be placed in "suicidal status” for any attempts at self-abuse, which had occurred with this patient on multiple occasions and was well known.

Respondent contends that the Claimant must produce expert testimony to be successful in her claim of medical or professional negligence. Although that may be the general rule for reviewing technical competence of professionals, expert testimony is not required if the negligence is so readily apparent or the treatment is of such a common occurrence that a layman would have no difficulty appraising it. (Dimitrijeic v. Chicago Wesley Memorial Hospital (1968), 93 Ill. App. 2d 251, 236 N.E.2d 309.) There is more than adequate basis in this record for us to find negligence, as we do.

It must be clarified that the claim here is not that DMHDD was negligent in failing to diagnose or to affirmatively designate the deceased as a suicidal risk. Instead, the claim here is predicated on the decedents death being the proximate result of the States failure to provide supervision and its actual provision of the means of suicide, in light of DMHDDs extensive knowledge of this patient and lengthy experience with his actual behavior and threats. Provisions of bandannas and shower hooks to a known self abuser who repeatedly threatens suicide is — at a minimum — a failure to exercise due care for that patients safety.

Our commissioner has specifically found that this patient (and the unit) was not supervised or patrolled closely enough under the circumstances to comport with reasonable standards of care. From our more distanced review of this record, we agree with his conclusion. Nothing argued by the Respondent comes close to persuading us otherwise. The DMHDD did not use due care in protecting Troi Hefti from harming himself and from committing suicide. As a proximate result of this negligence, Troi killed himself.

This case is factually distinguishable, and simply different, from the cases on which the Respondent relies to avoid liability. The gross evidence of self abuse in this case distinguishes it from Dimitrijevic, supra, and other cases cited by the Respondent. In Reynolds v. State (1983), 35 Ill. Ct. Cl. 647, 549, another suicide case, the deceased was known to attempt escape, but was not known to be abusive or suicidal beforehand; escape tendencies or escape behavior do not indicate or suggest suicide.

Similarly, while John Rritton was known to be in constant trouble, and to engage in loud talking, fighting and rebelling against institutional rules, that behavior was not enough to put the State on notice of possible suicide. (Woods v. State (1985), 38 Ill. Ct. Cl. 9, 24.) Woods bears no similarity to this case.

In the suicide of Jerry Cíanos, Dr. Visotsky, an honored former director of the department, testified that, “A patients telling you that he is going to commit suicide in no uncertain terms is also a higher indicator of risk.” In that case, however, the evidence showed that Jerry Gianos never spoke of suicide to anyone. Dr. Bayardo interviewed him and noted that he did not see any evidence in his behavior that he might hurt himself or others. (Gianos v. State (1975), 30 Ill. Ct. Cl. 373, 376.) Gianos, to the extent relevant here, supports liability as it enhances the duty of care owed.

In this case, Troi Hefti s mind was not merely unstable, nor did he simply threaten elopement as were the facts in the cases cited by Respondent. In this case, it is clear he was actively self-abusive and openly threatened suicide. With this knowledge, the State should not have provided or allowed a bandanna anywhere near Troi nor anywhere accessible to Troi. Without very close supervision, a self-abusive, mentally unstable individual who recently threatened suicide is a high-risk patient. The evidence here showed that Troi was obviously and visibly upset on the day of his suicide with denial of privileges immediately beforehand. In these circumstances, the States efforts fell short.

3. The States Counterclaim

On November 8, 1991, the Respondent asked for leave to file a counter-complaint for services rendered and paid. Claimant maintains that consideration of a set-off is improper because the State failed to plead and prove demand, proper itemization, and proof as required by the Mental Health Code. This argument, and Respondents argument that Claimant failed to exhaust her administrative remedies, need not be considered.

The counterclaim for services of the DMHDD is brought pursuant to the Mental Health Code, which inter alia provides “Except that no responsible relative may be held liable for charges for services furnished to a recipient if such charges were assessed more than 5 years prior to the time the action is filed.” This requires the counter-complaint offset be dismissed as barred as to services accruing more than five years prior to November 8, 1991. Formerly Ill. Rev. Stat., Ch. 911/2, par. 5 — 113; see 405 ILCS 5/5 — 113 (1994).

In addition, under the Wrongful Death Act, recoveiy is for the sole benefit of the next of kin for the pecuniary loss (and loss of society) sustained by the death of the relative. (See, e.g., Ohnesorge v. Chicago City Railway Co. (1913, 259 Ill. 424, 102 N.E. 819, 821.) The Wrongful Death Act further provides that the person furnishing hospitalization in connection with the decedents last injury or illness can receive a reimbursement only where the deceased person left no surviving spouse or next of kin. (740 ILCS 180/2.) Even assuming that DMHDD might somehow qualify here as having provided hospitalization, the Claimants survival of the decedent here precludes any payment to DMHDD.

4. The Award

Claimant does not contend that she or the family were, or were likely to be, financially dependent on Troi Hefti for support. The court cannot entertain a pecuniary damages award in this case.

On the other hand, Troi Hefti left behind a loving family of siblings, as well as his mother, the Claimant-administratrix whose recoveiy must compensate for all their loss. Loss of society is difficult to measure and even more difficult to compensate. The record in this case, however, shows that as difficult a child as Troi Hefti was, he was close to his siblings as well as to his mother, all of whom maintained a genuine and seemingly close relationship with him and regularly visited him, despite his overt self-destructive behavior. Indeed, this record reflects a remarkably close family under extraordinarily difficult circumstances.

After reviewing this record and considering wrongful death awards by this and other Illinois courts, we conclude that the award of $100,000 should be granted to the decedents estate for equal distribution to the surviving siblings and mother of the decedent.

Conclusion and Order

For the foregoing reason, we find for the Claimants negligence claim for the .wrongful death of the decedent, and enter judgment for the Claimant and against the Respondent. The Respondents counter claim is dismissed.

It is ordered: Claimant Kay E. Hefti, Administratrix of the Estate of Troi P. Hefti, Deceased, is awarded the sum of $100,000 in full and complete compensation for the wrongful death of Troi Hefti for his estate and his heirs.

OPINION AS MODIFIED ON REHEARING

Epstein, J.

This is a wrongful death claim brought by the Administratrix of the decedents estate, his mother, alleging negligence by the Department of Mental Health and Developmental Disabilities (“DMHDD”) at its Zeller Mental Health Center which allegedly caused or negligently permitted the suicide of the decedent, Troi Hefti, a 17-year-old patient at the time of his death on June 24,1987.

This cause is before us for final ruling, following a trial before our former commissioner, Richard H. Parsons, on May 19, 1993. Commissioner Parsons’ report and recommendations were submitted to us, as was the trial transcript. This opinion follows our own detailed and lengthy review of this sad and very difficult record.

Summaiy of the Claim

Claimant Kay Hefti brought this claim in 1988 in her capacity as the administratrix of the Estate of Troi Hefti. Essentially, the allegations are that Troi Hefti was an extremely troubled boy from an early age who had been physically self-abusive for a long time and had been repeatedly diagnosed as such and as seriously dangerous to himself, and had long been in State DMHDD facilities where his behavior and diagnosis were well known. Claimant advances two theories of DMHDD negligent culpability for Troi Hefti s suicide: (1) the actions of a DMHDD physician who without, any reasonable basis unilaterally ordered the cessation of the 15-minute suicide watch on Troi, on the day of his suicide; and (2) the oversight of DMHDD staff in leaving a hanging instrument openly available to Troi in the shower of his facility, where he obtained it and hung himself.

The State, for its part, filed a counterclaim seeking reimbursement for its expenses of caring for Troi Hefti, pursuant to the provisions of the Mental Health Code. This counterclaim is sought, essentially, as an offset against any award that might result.

The Facts

On June 24, 1987, Troi Hefti was a resident and patient in the George A. Zeller Mental Health Center (“Zeller”) when he was found hanging in a bathroom at approximately 6:15 p.m. on that day. The underlying facts are sad and not seriously controverted.

Troi Hefti was born February 16, 1970, and began having behavioral problems at about age five. He was first institutionalized at age 11. He had been in various institutions over the last six or seven years of his life. His history showed extreme and bizarre self-abusive behavior which regularly resulted in serious and permanent injuries. Troi was a problem child and a problem patient. He was a frequent resident of Zeller in particular, where his self-abusive behavior and suicide threats were well known. Ultimately, that pattern of behavior resulted in his death.

Troi was last admitted to Zeller on August 20, 1986, ten months before his death. He had been a patient at Zeller on five prior occasions. His typical modus operand! was to say anything to get his own way. He was adamantly opposed to discipline and to reduction of his privileges. The trial evidence, particularly the testimony of the professionals, showed clearly that the staff at Zeller knew of Trois self-abusive behavior and occasional suicide threats.

On the day of Trois death, the physician in charge (the staff physician) of the childrens adolescent unit at Zeller, in which Troi was resident, was Dr. James L. Weiler who was filling in for Dr. Marcia Aranas. Dr. Weiler was somewhat familiar with Trois behavior history and some of his prior episodes.

Dr. Weiler knew that Troi had threatened to kill himself (by putting a necktie around his neck) in December, 1986, and that Troi had frequent outbursts of aggression and was unable to handle his anger and frustration. He was also aware that in May 1987, Troi was so frustrated and upset over his mother having removed his clothes (to discourage his frequent breakouts or “elopements”) that he became self-abusive, and threatened to kill himself and others. Dr. Weiler recalled that on one occasion Troi grabbed a pair of sewing scissors and threatened to gouge his own eyes out. He also knew that after Trois elopement from and return to Zeller, Troi had stated that he would not hesitate to do bodily harm to himself if “pushed to the limit.”

Dr. Weiler did not recall that Troi told his mother that he was going to do something to himself several days before the suicide. Director Roland Chambers testified that Dr. Weiler and he talked to Troi about the statement Troi had made that he was going to kill himself and at that time Troi said that he was not suicidal.

Approximately one week before Trois death, he told his mother he was considering suicide. She was deeply concerned and believed her son. She discussed this with the staff personnel and the director of the unit at Zeller. She strongly disagreed with Mr. Chambers opinion that Troi was just trying to get attention and that the behavior just needed to be ignored.

Roland Chambers, director of the unit, testified that he knew Troi had, in fact, injured himself intentionally on more than one occasion. He was aware that Troi had jumped out of a moving vehicle that resulted in the amputation of his arm below the elbow. Mr. Chambers also was informed about the time Troi hung from a third-story window and the time when Troi purposely slammed his fingers in a door to cause injury. He knew about the incident where Troi threatened to gouge out his eyeball with scissors and the time when Troi slammed his fist into the wall. He acknowledged that Troi had been on the status of SOS (suicidal precautions) in the past at Zeller. A week before Trois death, Mr. Chambers was made aware that Troi stated to several people that he was going to kill himself. This was also entered in Trois chart.

Nevertheless, on the date of Trois death, Dr. Weiler ordered a discontinuation of the 15-minute suicide checks on Troi.

The charge nurse, Delaine Gamble, was acquainted with the threats Troi made to harm himself and was aware of the various times Troi did harm himself. She testified that he previously injured himself four or five times. She knew that Troi had said he would be out of there one way or the other several days before he committed suicide. She stated that all threats had to be put on his chart. She recalls that Troi had been on suicide precaution several times in the past.

Mary Grimes, a registered nurse on the unit, was asked to transfer to this unit because three other nurses were absent. She also knew about the previous times Troi had injured himself. She had heard from other staff that Troi threatened to take his life a few days before he actually committed suicide. She knew that Troi had been taken off the 15-minute checks. However, she testified that she and charge nurse Gamble did not agree with that decision, that they kept a regular watch on Troi despite the order and that they tried to know where Troi was at all times because they knew of his elopement and suicide threats.

Nathan Dixon, a mental health technician on the unit, knew of Trois self-inflicted injuries and of the recent threat of suicide. He testified that on each occasion that Troi threatened to elope or eloped, when he returned he would state he was not going to do that again which was also his behavior after each occasion that Troi injured himself.

On the day of Trois death, he was able to go unattended into the showers in his unit at Zeller, where bandannas and shower hooks were provided by the DMHDD, and which Troi Hefti used, finally, to make good on his threats of suicide.

Analysis

1. The Law of the Claim

The State and its agencies, including the DMHDD, owe their wards and patients the duty of protection and reasonable care. These duties of care must take account of the patients known condition, and may include safeguarding a patient from dangers due to mental or physical incapacities that are known to the State, or that by the exercise of reasonable care ought to be known by the State. However, as our opinions constantly emphasize, the State is not an insurer of the safety of the patients under the care of its agencies, including DMHDD. Reynolds v. State (1983), 35 Ill. Ct. Cl. 647, 649.

As in any suit predicated on negligence, the elements of recoveiy are the breach of a duty of care, consequential injury resulting proximately from the breach, and damages. In a wrongful death suit, the damages recoverable include the statutorily allowed pecuniaiy damages for loss of present and future support for those dependent on the decedent (740 ILCS 180/2), as well as loss of society and consortium, but not in the case of deceased children subject to deduction of child-rearing expenses, but recovery is not allowed for mental anguish of the survivors. Bullard v. Barnes (1984), 102 Ill. 2d 505, 486 N.E.2d 1228; Drews v. Global Freight Lines, Inc. (1991), 144 Ill. 2d 84, 578 N.E.2d 970; Holston v. Sisters of the Third Order (1991), 247 Ill. App. 3d 985, 618 N.E.2d 334.

2. The Liability Issue

The record is replete with evidence of repeated serious self-abuse and ongoing suicide threats by Troi Hefti, all of which were well known to the Zeller staff of the DMHDD. It is clear to this court, after review of this record, that the DMHDD staff at the Zeller Center were negligent.

The record provides no basis, either at the time or after the fact, for Dr. Weilers order discontinuing the 15-minute checks on Troi. However, as incorrect and seemingly cavalier as that decision proved to have been, we cannot and will not find liability on the basis of that order. This is because of the clear and undisputed testimony of the Zeller staff on Trois unit that they essentially ignored Dr. Weilers removal of the 15-minute checks on Troi. These sensible and dedicated staffers tried their best on a difficult service. Although sadly that was not enough to prevent Troi’s suicide, their efforts break any possible chain of causation between Dr. Weiler s order and the death of Troi Hefti. Thus this act, even if negligent, could not be a proximate cause of Troi’s suicide.

On the other hand, the failure of the DMHDD to prevent access to potential and fairly obvious suicide devices, and to leave such materials in a readily accessible place on the unit which is frequented by a known self-destructive — and suicide-threatening — patient in a mental facility is another matter altogether. While we do not doubt for a minute, based on this record, that the Zeller staff tried to patrol the area, it is clear that those efforts were inadequate in an environment that was not rigorously scrubbed of self-destructive implements. We are also persuaded in part by the location and frequency of access of the suicide location. It was a failure of due custodial care not to patrol the shower area constantly: hanging in showers is a known and unfortunately well established suicide technique in institutions. But for Troi’s access to the bandanna in or proximate to the shower area, he could not have killed himself that day by any other means-that have been shown to be available to him at the Zeller unit.

Respondents argument that the decedent was not labeled “suicidal” or formally diagnosed as such at the time of his death is unpersuasive, and almost irrelevant. This claim does not turn on the foreseeability of suicide. The foreseeability of serious self-abusive conduct by Troi Hefti is the point. And that was manifestly and undisputedly foreseeable. (Indeed, on this record, anyone on the staff at Zeller who might claim not to have foreseen the likelihood of Troi Hefti engaging in further self-abuse could do so credibly only if they were unfamiliar with his history, which hopefully did not include anyone responsible for his custody or care.) Of course, self-abuse may or may not result in death. But that is hardly a defense in this case. The kind of serious abuse that young Mr. Hefti had repeatedly engaged in was capable of causing death, but that too is largely irrelevant. The overwhelming evidence in this record shows that the responsible staff at Zeller knew that Troi Hefti was a serious physical danger to himself; the degree of likely harm is simply not the point.

This court is sensitive to the ease with which after-the-fact reviews by courts and other laypeople can second guess medical professionals whose knowledge and perspective at the time, and under trying and pressured circumstances, is very different and whose decisions and actions must take place in a very different context than our more leisurely review. However, this is not a difficult case, and this is not a case that involves review of medical or diagnostic judgments. In terms of the key personnels knowledge and professional understandings at the time, it is clear that Troi Hefti — even if, arguendo, he was correctly undiagnosed as suicidal on the day of his death— was nonetheless known to be a serious and substantial danger to himself. That is enough to require custodial scrutiny that was lacking here.

Moreover, by DMHDD’s own standards, something was wrong with the Zeller staffs classification of Troi Hefti, as its treatment plans specify that patients be placed in “suicidal status” for any attempts at self-abuse, which had occurred with this patient on multiple occasions and was well known.

Respondent contends that the claimant must produce expert testimony to be successful in a claim of medical or professional negligence. That is the general rule for reviewing technical competence of medical professionals. As we stated above, this is not a professional malpractice claim. Expert testimony is not required for a second reason. Where the negligence is so readily apparent or the treatment is of such a common occurrence that a layman would have no difficulty appraising it, expert testimony is not critical. (Dimitrijeic v. Chicago Wesley Memorial Hospital (1968), 93 Ill. App. 2d 251, 236 N.E.2d 309.) There is more than adequate basis in this record for us to find clear and obvious negligence, as we do.

Given the contentions of the Respondent on rehearing, we must emphasize again that the claim here is not that DMHDD was negligent in failing to diagnose or to affirmatively designate the deceased as a suicidal risk or in its medical treatment of the decedent. Instead, the claim here is predicated on the decedents death being the proximate result of the States failure to provide supervision and its actual provision or negligent tolerance of the means of suicide, in light of DMHDD s extensive knowledge of this patient and his actual behavior and threats. We view this as an extreme, and hopefully singular case. Provisions of bandannas and shower hooks to a known self-abuser who repeatedly threatens suicide is — at a minimum — failure to exercise due care for that patients safety.

From our view of the record we conclude that the decedent was not supervised or patrolled closely enough under the circumstances to comport with reasonable standards of care. Nothing argued by the respondent comes close to persuading us otherwise. The DMHDD did not use due care in protecting Troi Hefti from harming himself and from committing suicide. As a proximate result of this negligence, Troi killed himself.

This case is factually distinguishable, and simply different, from the cases on which the respondent relies to avoid liability. The gross evidence of self-abuse in this case distinguishes it from Dimitrijevic, supra, and other cases cited by the respondent. In Reynolds v. State (1983), 35 Ill. Ct. Cl. 647, 549, another suicide case, the deceased was known to attempt escape, but was not known to be abusive or suicidal beforehand; escape tendencies or escape behavior does not indicate or suggest suicide.

Similarly, while John Britton was known to be in constant trouble, and to engage in loud talking, fighting and rebelling against institutional rules, that behavior was not enough to put the State on notice of possible suicide. (Woods v. State (1985), 38 Ill. Ct. Cl. 9, 24.) Woods bears no similarity to this case.

In the suicide of Jerry Cíanos, Dr. Visotsky, an honored former Director of the Department, testified that “A patients telling you that he is going to commit suicide in no uncertain terms is also a higher indicator of risk.” In that case, however, the evidence showed that Jerry Cíanos never spoke of suicide to anyone. Dr. Bayardo interviewed him and noted that he did not see any evidence in his behavior that might hurt himself or others. (Gianos v. State (1975), 30 Ill. Ct. Cl. 373, 376.) Gianos, to the extent relevant here, supports liability as it enhances the duty of care owed.

In this case, Troi Heftis mind was not merely unstable, nor did he simply threaten elopement as were the facts in the cases cited by respondent. In this case, it is clear he was actively self-abusive and openly threatened suicide. With this knowledge, the State should not have provided or allowed a bandanna anywhere near Troi nor anywhere accessible to Troi. Without very close supervision, a self-abusive, mentally unstable individual who recently threatened suicide is a high-risk patient. The evidence here showed that Troi was obviously and visibly upset on the day of his suicide with denial of privileges immediately beforehand. In these circumstances, the States efforts fell short.

3. The Award

•Claimant does not contend that she or the family were, or were likely to be, financially dependent on Troi Hefti for support. There can be no pecuniary damages award in this case.

On the other hand, Troi Hefti left a family of siblings, as well as his mother, the Claimant-administratrix whose recovery must compensate all for their loss. Loss of society is difficult to measure and even more difficult to compensate. The record in this case, however, shows that as difficult a child as Troi-Hefti was, he was close to his siblings as well as to his mother, all of whom maintained a close relationship with him and regularly visited him, despite his overt self-destructive behavior. This record reflects a close family under difficult circumstances.

After reviewing this record, and considering wrongful death awards by this and other Illinois courts, we conclude that the award of $100,000 should be granted to the decedents estate for equal distribution to the surviving siblings and mother of the decedent.

4. The States Counterclaim

On November 8, 1991, the Respondent asked for leave to file a counter-complaint for services rendered by DMHDD to Troi Hefti in the amount of $52,326.60. The procedural disposition of this counterclaim by our commissioner is not altogether clear, but both sides have treated the counterclaim as filed and have vigorously pursued their positions on this aspect of the case. The Court treats the counterclaim as filed and before us for adjudication.

The DMHDD’s counterclaim is for the costs of its services to the late Troi Hefti, and is brought pursuant to sections 5 — 105 through 5 — 116 of the Mental Health Code (now 405 ILCS 5/5 — 105 through 5/5 — 116) (the MHC), which inter alia provides in material part:

“§5 — 105. Each recipient of services provided * * * by the Department and the estate of that recipient is liable for the payment of sums representing charges for services to the recipient at a rate to be determined * s 0 in accordance with this Act. •"If*" the estate of the recipient is insufficient, the responsible relatives are severally liable for the payment of those sums or for the balance due * ° s. If the recipient is under the age of 18, the recipient and responsible relative shall be liable for medical costs on a case-by-case basis for services for the diagnosis and treatment of conditions other than that child’s handicapping condition. The liability shall be the lesser of the cost of medical care of the amount of responsible relative liability established by the Department under Section 5 — 116. * * * the maximum service charges for each recipient assessed against responsible relatives collectively may not exceed financial liability determined from income in accordance with Section 5 — 116. * * *.
§5 — Ill. Any person who has been issued a Notice of Determination of sums due as service charges may petition the Department for a review of that determination. The petition must be * * * filed * * s within 90 days * * *. The Department shall provide for a hearing * 0 * shall take testimony and preserve a record of all proceedings * 0 *. Any person aggrieved by the decision 0 * * may within 30 days thereafter, filed a petition * * * for review of such decision by the Board of Reimbursement Appeals. * 8 *.
§5 — 113. Upon receiving a petition for review under Section 5 — 111, the Department shall * 0 * notify the Board of Reimbursement Appeals which shall renders its decision 600 within 30 days s * a and certify such decision to the Department * ° *. Upon request of the Department, the State’s Attorney of the county in which a responsible relative or a recipient who is liable under this Act for payment of 0 * * service charges resides, shall institute appropriate legal action against any such responsible relative, or the recipient or within the time provided by law shall file a claim against the estate of such recipient who fails or refuses to pay those charges. The court shall order the payment of sums due for services charged for such period or periods of time as the circumstances require, expect that no responsible relative may be held liable for charges for services furnished to a recipient if such charges were assessed more than 5 years prior to the time the action is filed; but such 5 year limitation does not apply to the liability of a recipient or recipient's estate. * *

In its initial arguments, the Claimant maintained that consideration of a set-off for “service charges” of the DMHDD is improper because the State failed to plead and prove demand or “assessment,” proper itemization, and proof as required by section 5 — 105 and section 5— 111 of the Mental Health Code. Claimant also contends that the 5-year limitation provision in section 5 — 113 of the Mental Health Code bars this counterclaim. Finally, Claimant urges that the Wrongful Death Act does not allow recovery proceeds to be paid to the DMHDD as a health care provider (creditor) of the decedent, on the theory that the only hospitalization expenses that can be claimed from wrongful death recoveries are those of the decedents last illness, which are not involved here.

In its initial arguments, the Respondent argued that Claimant failed to exhaust her administrative remedies as to the details of the DMHDD expense counterclaim, and disputed all of the Claimants arguments. With respect to the 5-year limitation period of section 5 — 113, the Respondent urged that the relation-back provision of section 3 — 207 of the Code of Civil Procedure (735 ILCS 5/13— 207) applies to the counterclaim and relates it back either to tire date of the filing of the complaint in this case, or to the date of Troi Hefti s claim (on the theory that die claim against the Estate, as well as the Wrongful Death Act claim against the DMHDD accrued on that date).

In our initial, vacated decision, we dismissed the counterclaim. On the Respondents petition, we granted rehearing on this issue, and heard oral argument and accepted supplemental briefs. In light of the initial arguments and the additional arguments advanced on rehearing, we must address the construction and application of the Mental Health Code, the Wrongful Death Act, and our own Court of Claims Act to the instant facts. Surprisingly, these seem mostly to be questions of first impression.

The first issue is whether any claim lies for DMHDD to recover the proceeds of the award in the Claimants wrongful death action, which is said to be the sole asset of the Claimant estate against which recovery is sought by the counterclaim.

Under the Wrongful Death Act, recovery is for the sole benefit of tire next of ldn for the pecuniary loss and loss of society sustained by the death of the relative, and is generally not subject to the decedents creditors claims. (See, e.g., Ohnesorge v. Chicago City Ry. Co. (1913), 259 111.424, 102 N.E. 819, 821; Greenock v. Merkel (1979), 71 Ill. App. 3d 958, 390 N.E.2d 78.) The Wrongful Death Act further provides that the person furnishing hospitalization in connection with the decedents last injury or illness can receive reimbursement only where the deceased person left no surviving spouse or next of kin (740 ILCS 180/2), which is not the case here, even assuming arguendo that DMHDD might somehow qualify here as having provided such last-illness hospitalization.

On the other hand, as the Respondent correctly points out, its counterclaim is predicated on a separate, independent statutory liability and statutory cause of action under the Mental Health Code and does not therefore rely on the Wrongful Death Act to authorize recovery. However, notwithstanding this alternative source of the counterclaim’s cause of action, we find nothing in the Mental Health Code provisions that supersedes the Wrongful Death Act — or that contravenes the policy of that Act’s immunization of wrongful death recoveries from otherwise valid claims against the decedent’s estate. Thus, while section 5 — 105 generally imposes liability on beneficiary-decedents’ estates as well as imposing residuary liability on the “responsible relatives” of the decedent, that liability does not reach wrongful death benefits recovered by the estate and distributable to the decedent’s survivors.

This takes the analysis to the residual liability of the “responsible relatives” under section 5 — 105. In this case, under the definition section 1 — 124 of the Mental Health Code, the “responsible relative” means the decedent’s parent, as Troi Hefti was under 18 when he died. The portion of the claimant estates wrongful death recovery that is distributable or that is distributed to the decedents mother, Kay E. Hefti, is thus reachable as her asset, based on her liability as the decedent’s “responsible relative” under section 5 — 105 of the Mental Health Code. (Given our award, the amount thus is issue in the counterclaim is $25,000.) This point was agreed by both parties at the oral argument.

Mrs. Hefti’s share of the wrongful death award is reachable through the estate, over which this court has jurisdiction (as it is the Claimant), whereas we lack jurisdiction over Mrs. Hefti personally, as she is not individually a party in this proceeding. Moreover, we find that we can reduce the award to the Claimant estate by the amount of any counterclaim award, under the set-off provision of section 26 of the Court of Claims Act (“any recovery awarded by the court shall be subject to the right or set-off’) and under our jurisdictional authority over recoupments under section 8(e) of the Court of Claims Act. (705 ILCS 505/8(e), 505/26.) Although neither of these provisions of our enabling statute creates a cause of action — which must separately be found in statute or common law — both provide procedural authorization to entertain and to give effect to cognizable substantive claims of the State against the Claimant.

This analysis also partly disposes of the Claimant’s contention that the DMHDD cannot pursue its “service charges” for Troi Hefti’s care as a counterclaim in this court for the reason that the Mental Health Code provides that the State’s Attorney of the responsible relative’s county of residence shall bring the action. In effect, Claimant contends that the statutory procedure for civil enforcement by the States Attorneys is exclusive. We disagree. There is no language in the statute so indicating. Moreover, the provision as written is a directive to the State’s Attorneys to sue when so requested by the Department, and not otherwise. See section 5 — 113 of the Mental Health Code. There is nó proviso derogating from the authority of the department or the Attorney General to enforce the “liability” expressly created in section 5— 105 of the Mental Health Code. In any event, the set-off provision of section 26 of the Court of Claims Act directs us to entertain set-off claims of the State against “any recovery” we may award to a Claimant.

Thus we come to the two procedural issues that apply specifically to this claim against the Hefti Estate: (1) Claimant’s argument that the DMHDD never properly “assessed” any “charges for services” as required by the statute, and (2) that this counterclaim is barred by the 5-year statute of limitations of section 5 — 113 of the Mental Health Code. These issues arise in the factual context of the DMHDD having first asserted its $52,000 plus claim for “service charges” for Troi Hefti’s care in the counterclaim filed in this court, with no prior assertion of these charges to the estate or to Mrs. Hefti individually.

The issues here are whether the DMHDD complied with the procedural requirements of the MHC so that its counterclaim can proceed under the authority of that statute, or whether DMHDD violated any mandatory procedures so that its claim for “service charges” in this case cannot proceed on the basis of the MHC authorization. The MHC procedure commences with the issuance of a “Notice of Determination” by the DMHDD. (405 ILCS 5/5 — 111.) That notice triggers a series of administrative procedures and appeals, first to the DMHDD staff and then to the 3-member Board of Reimbursement Appeals appointed by the Governor. The “assessment” of the DMHDD also triggers the commencement of the 5-year limitation period under section 5 — 113 for civil actions by the State s Attorney against “responsible relatives.”

In this case, there was no “notice of determination.” This omission had the effect of not allowing the Claimant to dispute the amount of the DMHDD s charges claim in the established administrative channels. (This seems particularly important in a case like this one, where the decedent was under 18, so that not all expenses of his care are chargeable under the statute. See MHC section 5 — 105 of the Mental Health Code.) In the absence of any “assessment” by the' DMHDD, the 5-year limitation period seemingly did not commence. On the other hand, the absence of any notice or assessment also short-circuited the specific administrative system established by the legislature for the narrow task of reviewing the legitimacy of DMHDD “service charges.”

If the procedures utilized in this case by the DMHDD are allowed, then one of two consequences appears to follow: (1) disputes of DMHDD “service charges” would be remitted to this court for adjudication, or (2) the “responsible relative” or the estate of a deceased recipient would be deprived of any forum in which to contest the “service charges” claim. The former procedure would be clumsy and inefficient, at best, and contrary to the statutory scheme and administrative structure established by the general assembly specifically for adjudication of these specialized “service charge” disputes. The latter would violate due process notions and would be inconsistent with the statute as well. We also do not find any purpose to be served by allowing the DMHDD (or its successor) to utilize this Court to circumvent its own statute and its own procedures whenever it neglects to timely issue a notice of determination.

. The statute requires tire DMHDD to commence the process of assessing and collecting “service charges” from recipients, their estates or their “responsible relative” by issuing a notice of determination, and that notice must be construed to be a condition of the remainder of the statutory scheme, including the imposition of liability. In the absence of a notice of determination, there can be no liability, and no claim or counterclaim predicated on such liability. For this reason, we must dismiss the counterclaim.

5. Allowance of Attorney’s Fees.

Claimant’s counsel, supported by the Claimant, has petitioned the court to allow him to be paid a contingent fee in excess of the statutory 20% maximum in cases before this court, in accordance with section 26.1 of the Court of Claims Act. (705 ILCS 505/26.1.) Claimant requests 33 1/3%, which request is supported by Mrs. Hefti, the administratrix of the Claimant estate, as well as by the original 1987 fee agreement between them, which was submitted as an exhibit following oral argument, with leave of the Court. The Court conducted a hearing on the fee petition at the oral argument on rehearing and accepted supplemental submissions.

After much deliberation, and after consideration of the parties’ agreement, the time expended by counsel, the level of difficulty and complexity of the trial and trial preparation, and of the issues in the case, the Court has determined that an allowance of a contingent fee in excess of 20% is justified. The Court allows a contingent fee of 33 1/3% of the recovery net of expenses and costs that are paid or reimbursed.

Conclusion and Order

For the foregoing reason, we find for the Claimants negligence claim for the wrongful death of the decedent, and will enter an award for the Claimant. The Respondents counterclaim will be dismissed for failure to comply with, section 5 — 111 of the Mental Health Code. Accordingly, it is ordered:

1. Claimant Kay E. Hefti, administratrix of the estate of Troi P. Hefti, deceased, is awarded the sum of $100,000 in full and complete compensation for the wrongful death of Troi Hefti for his estate and his heirs, such award to be divided equally between Kay E. Hefti, the decedents mother, and the decedents surviving siblings;

2. The Respondents counterclaim is dismissed; and

3. Payment of a contingent fee of 33 1/3% to Claimant’s counsel is allowed, after payment or reimbursement of costs and expenses of this litigation.

       There was no agreement by the parties as to what the undefined statutory term "assessment" means in MHC §5 — 111. A close study of this part of the Mental Health Code dealing with financial responsibility for “service charges" discloses that for this purpose “assessment” refers either to the initial Notice of Determination specified by §5 — 111 or to a modified determination after a redetermination by the Department or pursuant to a directive of the Board of Reimbursement Appeals under Sec. 5 — 111 or to a modified determination after a redetermination by the Department or pursuant to a directive of the Board of Reimbursement Appeals under Sec. 5 — Ill. The final determination issued (to the recipient or the estate or the responsible relative) is the “assessment" that starts the 5-year limitation period under Sec. 5 — 113.