text:
    (No. 78-CC-0301
    Richard Wanland, as sole beneficiary of Devon Bank Trust No. 2734, and Devon Bank, as Trustee under Trust No. 2734, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 12, 1983.

    Robert L. Kiesler, of Kiesler & Berman, for Claimants.
    Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this cause is alleging there is rent due from Respondent for the period of August 1, 1976, to September 1, 1978, at the rate of $5,958.33 per month, for property leased by the Department of Labor, Bureau of Employment Services at 6220 North California Avenue, Chicago, Illinois.

On April 13, 1976, the Devon Bank, Trustee under Trust No. 2734, executed a lease for property at 6220 North California Avenue, Chicago. Claimant is the beneficiary of that trust and it was agreed that he is the proper claimant. Respondent returned the lease, executed by the director of the Department of General Services, on June 14, 1976.

The property in question was leased to the Department of General Services for the use of the Department of Labor, Bureau of Employment Security. The lease itself, did not state the intended use of the property but the negotiations revealed that the actual intended use was as an unemployment compensation office.

The leased premises included an existing building and a 3,000 square foot addition to be constructed by Claimant, and the lease required extensive remodeling to be done by Claimant, pursuant to specifications prepared by Levi Daniels, an architect employed by the Department of Labor.

Claimant, in April 1976, employed an architect to prepare plans and specifications for the remodeling, pursuant to the lease.

The lease provided for an August 1, 1976, occupancy date. However, due to Respondent’s delay in returning the executed lease and specifications and due to Respondent’s delays in making design decisions, the premises were not ready for occupancy until November 1, 1976. Claimant notified Respondent by letter, dated August 10, 1976, that the delays of Respondent required a later occupancy date and, on October 17, 1976, Claimant notified Respondent that the premises would be ready on November 1, 1976. Respondent, however, did not take possession on November 1, 1976, but was still choosing colors and approving changes in the design through December 1976. Changes in the remodeling design took place as late as December 29, 1976, at which time the Department requested the installation of a coaxial cable and telephone equipment for the sum of $1,336.00 to be paid separately from the lease. This amount was agreed to in writing by the Respondent.

On December 6, 1976, Daniels was directed to relocate the offices of unemployment compensation to the subject premises. Other arrangements for possession were made by Respondent, and on January 6, 1977, Daniels was directed to relocate to the subject premises on January 14, 1977. Respondent, however, never did take possession of the premises, and on April 29, 1977, Respondent, by letter, cancelled the lease.

In 1976, subsequent to the execution of the lease, the Illinois General Assembly enacted Public Act 79-1267, effective July 1, 1976, a General Appropriation Bill for the Department of Labor appropriating sufficient monies to cover the rental payments for the fiscal year ending June 30, 1977, but adding the following provision:

“No funds appropriated in Section 3 of this Act may be expended for the opening and staffing of an unemployment insurance employment service or work incentive office if the office space or facility is located within 500 feet of a school in any city with a population of 1,000,000.”

The leased premises were within 500 feet of a school. On August 18, 1976, a complaint for declaratory judgment and injunctive relief was filed in the circuit court of Cook County against Devon Bank, lessor, Donald Johnson, director of the Department of Labor, Roland Burris, director of the Department of General Services, and George Lindberg, Comptroller of the State of Illinois.

On September 17, 1976, the circuit court of Cook County entered a preliminary injunction preliminarily enjoining the defendants from expending any funds, under Public Act 79-1267 for the leasing and operation of an unemployment insurance office at 6220 North California Avenue, Chicago, Illinois. On November 8, 1976, the supreme court of Illinois rendered a decision that the quoted condition to the expenditure of money was unconstitutional and the order of the circuit court was reversed. A petition for rehearing was granted by the court and the matter remained pending until October 5, 1977, when the supreme court sustained its earlier opinion and reversed the judgment of the circuit court.

On February 1, 1977, the city council of the city of Chicago enacted an ordinance declaring that offices and employment agencies were not a permitted use under Bl-2 zoning. At the same time, the council reclassified the area containing the subject property from B4-2 to Bl-2 zoning, making the Respondent’s intended use illegal. Claimant filed suit against the city of Chicago in the circuit court of Cook County under Case No. 77-L-5744 and obtained an order from the court rendering the ordinance unenforceable against the parties to this lease. This order was not appealed by the city of Chicago.

On October 7, 1977, Claimant, by letter, informed the Respondent that all legal proceedings having been terminated, the premises were available for occupancy by respondent.

Public Law 79-1267 contained an appropriation of funds for the fiscal year ending June 30, 1977, but no appropriation was made for the payment of the lease for the subject property for the fiscal year ending June 30, 1978.

Claimant, on June 26, 1978, entered into a lease with a third party wherein the lease term commenced on September 1, 1978.

The pertinent portions of the lease between Claimant and Respondent pertaining to payment are as follows:

1. RENT. Lessee covenants and agrees to pay the Lessor, as rent for the demised premises, the sum of five thousand nine hundred fifty-eight 33/100 dollars ($5,958.33) per month . . . The rent shall be payable on the Lit day of every month commencing on the 1st day of August, 1976. Lessor understands and agrees that the continuation of this lease and all obligations and covenants hereunder, during the term, or any subsequent renewal or extension of this lease, shall be subject to passage of a suitable appropriation to the Agency by the General Assembly of the State of Illinois and to lawful availability to the agency of sufficient funds for the payment of rent . . . Lessor understands and agrees that liability for the payment of the rentals or installments thereof are limited solely to funds received from the federal government. . .
2. POSSESSION. Lessee shall be entitled to possession on the first day of the term of this lease . . . Should Lessor be unable to give possession on said date, neither Lessee nor Agency shall be liable for rent, and rent shall be prorated from the date of occupancy ...”

The Court finds that Claimant performed the remodeling work as required by the lease and any and all delays in the remodeling were caused by the State. The premises were ready on November 1, 1976, but by further action of the State in making new construction requests, the premises were not available until the first part of January 1977. On January 6, 1977, Respondent indicated its satisfaction with the condition of the premises by directing the move into the premises.

It is, therefore, the opinion of this Court that Claimant did all that was required of him to do under the lease.

It is Respondent’s contention that the preliminary injunction entered into on September 17, 1976, by the circuit court of Cook County prevented occupancy of said premises by the State and that since the lessor could not give possession of the premises to the State, the State is relieved of the responsibility of rent until the injunction was lifted by the supreme court on October 5, 1977.

The circuit court injunction merely enjoined disbursing and expending funds “for the purpose of preparing, opening or operating an unemployment insurance office.” The Department of Labor was not enjoined from using the premises for some other purpose. The lease did not mention the use as an unemployment insurance office, thus the preliminary injunction did not prevent occupancy, under the lease, by the Department. The injunction did not bar Claimant from leasing the premises to Respondent and therefore did not serve to absolve Respondent from liability under the lease. Since the supreme court voided the conditional appropriation language, the appropriation for the fiscal year ending June 30, 1977, was valid. The Court is of the opinion that Respondent is liable for the rent for the fiscal year ending June 30, 1977.

Since the city of Chicago zoning ordinance changes were declared invalid by the circuit court of Cook County, its prohibitions do not influence the liability for rent in this case.

Rent was not payable, however, as of August 1, 1976, as contended by Claimant. It was contemplated by the parties that the rental would not commence until lessor had completed his work and until the premises were ready for occupancy. Claimant himself requested an extension of time and did not tender the premises complete until November 1, 1976. The State did not accept them until its directive of January 6, 1977.

Although the later date was the result of the State’s delays, Claimant never insisted on its November 1, 1976, date and acceded to the State’s further requests for additional work.

It is the opinion of the Court that the liability for rent commenced on January 6, 1977, and extended through June 30, 1977, the end of the fiscal year for which monies had been appropriated. Based on the agreed rental of $5,958.33 per month, the total liability for rent for the fiscal year ending June 30, 1977, would be $34,596.65. In addition, there is due Claimant the sum of $1,336.00, being the extra for coaxial cable agreed to by the State.

As to the claim for rent starting July 1, 1977, the record shows there was no appropriation by the General Assembly for rent payments on the subject property for the fiscal year beginning July 1, 1977, and ending June 30, 1978; therefore there cannot be any liability on the part of Respondent for that period of time.

It is the opinion of this Court that the rental liability, as provided for in the lease, ended as of July 1, 1977. The letter of termination sent by Respondent on April 29, 1977, while not effective as of April 29, 1977, was effective as of June 30, 1977.

An award is hereby made in favor of Claimant in the amount of $34,596.65 for rental and $1,336.00 for extra work, making a total award of $35,932.65.


source: Caselaw Access Project

author: Poch, J.

license: Public Domain

text:
    (No. 78-CC-0409
    Commercial Union Insurance Company, Argonaut Insurance Company, and The Home Indemnity Company, Claimants, v. The State of Illinois, Respondent.

      Order filed April 11, 1983.

    Kenney, Leritz & Reinert (Bernard A. Reinert, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming on to be heard on the joint stipulation of the parties and the Court being fully advised in the premises:

Finds, that although the Court is not bound by the stipulation of the parties, the Court does nevertheless lend great weight and credence to the parties’ stipulations and encourages agreements which avoid unnecessary litigation when investigations by the parties themselves demonstrate to those parties the relative accuracy of the others’ positions.

In reviewing the second amended complaint along with the letter of December 9, 1982, from the Illinois Department of Transportation and the letter of March 24, 1983, from the Claimants’ counsel Mark A. Heifers as to the wisdom of this joint stipulation now before the Court.

It is therefore ordered, that the following awards be granted:

$3,060.00 to Commercial Union Insurance Company
$ 440.09 to Argonaut Insurance Company
$1,470.00 to Home Indemnity Company


author: Roe, C.J.

text:
    (No. 78-CC-0694
    Norbert Rayford, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 1, 1982.

    Stanley K. Stewart, for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter comes before the Court on a complaint filed by the Claimant for back salary allegedly due him as a result of a wrongful discharge from employment. The claim seeks wages lost from March 5, 1973, through June 30, 1977.

At the time of his discharge, Claimant was a Technical Advisor V with the Department of Personnel. On approximately May 20, 1977, the Civil Service Commission of the State of Illinois, ruled that Claimant’s discharge from his position was improper and illegal and ordered the Department of Personnel to reinstate Claimant in his position.

Because of ambiguities in the Civil Service Commission’s order, in June 1977, Claimant with a co-complainant, one James F. Shimeall, filed an administrative review action in the circuit court of Sangamon County, Illinois. In October 1977, Claimant and the defendants in the administrative review action, namely, the Civil Service Commission and the Department of Personnel, settled the administrative review action. The written settlement agreement filed in the case provided in part as follows:

“3. Mr. Shimeall and Mr. Rayford are entitled to full back salary and benefits for the period from March 5, 1973, to the effective dates of Mr. Shimeall’s transfer and Mr. Rayford’s resignation, subject to mitigation for earnings received from other employment and to other rules and requirements of the Court of Claims of the State of Illinois.”

It is undisputed that the gross earnings which Claimant would have received for the period in question was $93,976.98. The only issue before this Court concerns the question of mitigation of damages by the Claimant— whether or to what extent the Claimant properly and reasonably mitigated his damages during his period of wrongful discharge.

When the Claimant was discharged, he moved to Louisiana where he obtained a teaching position as an assistant professor of law at Southern Louisiana University Law School. He continued to work in that capacity through the end of the school year in May 1975, when due to University accreditation problems, he resigned as an assistant professor and thereafter devoted his entire time to the private practice of law.

During the years 1973-1975, Claimant reported earnings from his position with the. University of $35,058.29. Were this all, there should be no question. As we have indicated, it is stipulated that the gross earnings Claimant would have received was $93,976.98, and as mitigation earnings through May of 1975, Claimant would have shown $35,058.29. Questions of mitigation in this Court, however, are rarely that easy.

It seems that in 1973, in addition to his position as assistant professor, Claimant also began his own private law practice. It is this private practice, with Claimant’s annual earnings and expenses reported therefrom, that causes the difficulty here.

A quick look at his reported earnings and expenses as a private practitioner reveals the following somewhat dismal financial record and highlights the problem between Claimant and Respondent:

Earnings from Private Practice Expenses of Private Practice
1973 $ 1,515.00 $ 6,739.36
1974 8,663.50 27,383.65
1975 6,656.60 27,390.99
1976 12,953.52 27,723.88
1977 16,283.71 27,773.83

Claimant argues that total expenses in any tax year must be offset against any income in that year and that, therefore, in the years 1974-1977, Claimant’s income would result in zero earnings for mitigation purposes. Succinctly stated, Claimant’s position is that (1) this Court should not go behind the tax returns as filed by Claimant and presumably accepted by the Internal Revenue Service, to determine what a proper expense may be; and (2) this Court has always considered both losses as well as profits in reaching a proper mitigation figure. In principle, we agree; however, Respondent presents three arguments that we must address.

Respondent first argues that Claimant has breached his duty to mitigate damages by intentionally operating a private law practice at an extravagant loss. We do not wish to burden the record with an itemization of the various expenses incurred by Claimant during the years in question. We believe it is sufficient to say that at least on first blush, many of his expenses (which consistently were more than double his income) seem excessive, if perhaps, not foolish.

We agree with Respondent that Claimant must demonstrate that he did all in his power to mitigate damages. This Court has said in Otto v. State, 24 Ill. Ct. Cl. 72, 75-76:

“We are not going to enter an award for salaries unless claimants have proven that they attempted to find other employment, and, if there is no showing to that effect, there will be no award made for that period of time. We will only consider their salary and earnings from other employment from the date that they started to seek employment and were gainfully employed, and we do not believe that one can sit idly by and draw a salary without attempting to seek employment in mitigation of damages.”

And in Stephanites v. State, 24 Ill.Ct.Cl. 340, 342:

“. . . it is well established that it is the duty of all suspended state employees to mitigate damages incurred through loss of salary due to suspension and discharge, and to do all in their power to seek, find, and accept other employment during the period following discharge.
Claimant must prove that he did all in his power to mitigate his damages by seeking employment. If he does not so prove, it is the function of this Court to determine the reasonable amount whereby an award should be mitigated.”

And we agree that the State should not have to subsidize bad business judgment. However, we have neither the authority nor the wisdom to demand success of every Claimant who may attempt a private enterprise. Certainly in the instant case, we believe Claimant attempted, albeit unsuccessfully, to mitigate his damages, and we cannot hold that he entirely breached his duty to do so.

Respondent also argues that Claimant cannot use business losses from his Federal income tax return to reduce the mitigation earnings. We do not agree. This would mean that we must reject any and all business expenses as a means of determining a proper mitigation amount; and that, we have consistently refused to do. We believe that all business expenses, properly accounted for as applied against business income, are properly considered in determining a mitigation amount. We will not make an inquiry into the propriety of each and every item of expense, nor will we prescribe accounting principles to be followed in this Court. A determination of expenses by tax accounting in accordance with the Federal income tax laws is an acceptable method.

Finally, the Respondent argues that the Claimant’s duty to mitigate damages incorporates a duty to minimize expenditures. We agree. While this Court has not specifically ruled on the issue of what constitutes a reasonable business expense to be reduced from gross mitigated earnings where the Claimant has his own business we said in Stephanites, supra, at 342:

“If he does not so prove (he has mitigated), it is the function of this court to determine the reasonable amount whereby an award should be mitigated.”

In an attempt to help this Court arrive at a reasonable figure to deduct from Claimant’s. gross mitigated earnings, Respondent compares in great detail the similar situation of James Shimeall, supra, Claimant’s co-complainant. Although the comparison offers much insight, we believe that there are enough distinguishing factors as to make unfair any precise analogy on which we ought to base our decision.

This case does appear before us on first impression on the narrowly analyzed question of what constitutes reasonable business expenses for determining proper mitigation earnings where a Claimant has his own business. We believe, without more, that we are. empowered to arrive at a reasonable figure. As we have stated, we believe that all business expenses properly accounted for may be considered in determining a mitigation amount. A necessary corollary to this is that the duty to mitigate includes a duty to minimize those same business expenses.

Accordingly, we find that business expenses in excess of 50% of earnings generated by those expenses are not reasonable and will therefore be disallowed.

The undisputed gross earnings which Claimant was entitled to was $93,976.98. This must be mitigated by $35,058.29 (the amount Claimant earned as a law professor) as well as $23,036.16 which reflects his law practice earnings less 50% which leave a balance of $35,882.53.

       See Shimeall v. State (1978), 32 Ill.Ct.Cl. 760, for a more complete review of the settlement agreement.

       In 1973, Claimant earned $9,914.29 from the University and $1,515.00 from his private practice. He claims his expenses from private practice of $6,739.36 should be offset against total annual income to provide a total net mitigation earning of $4,690.00.


author: Holderman, J.

text:
    (No. 78-CC-1283
    Charles A. Baley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 14, 1982.

    Thomas F. Howard, Sr., for Claimant.
    Tyrone C. Fahner, Attorney General (Glen Larner, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant is a former special agent for the Illinois Bureau of Investigation and was so employed from September 30, 1974, through November 1977. This claim is for overtime pay alleged to be due him.

For the first few months of the above period, Claimant was enrolled at the Illinois State Police Academy receiving training for this position, and in January 1975 he was hired by the IBI as a special agent until he resigned on October 31, 1977.

During pre-appointment interviews, and while at the training academy, Claimant was advised that the position of special agent required an unusual amount of overtime and that the position was not simply an eight-hour per day job. He was also advised that overtime work would not be paid for in cash but that he could take compensatory time off for such overtime up to four days per month. Claimant, with knowledge of these conditions, indicated his readiness to work whatever extra hours were necessary in the job and did in fact work considerable extra hours during his employment without objection.

Claimant’s supervisors expected overtime work although the amount was largely within the discretion of each agent and the Claimant’s decisions as to the amount of overtime was never questioned by his supervisors.

All of Claimant’s requests for compensatory time for overtime work were accepted and granted by the supervisors although it was known by all that no more than four days per month of compensatory time off would be allowed.

Claimant worked 1,432.5 overtime hours, during his period of employment, and having taken 332 compensatory hours of time off, he left the job with 1,100.5 hours of unused accumulated compensatory time. The IBI policy at the time Claimant resigned provided that all unused compensatory time would be forfeited upon resignation.

Claimant’s notice of resignation set forth a claim for a lump sum payment for unused vacation time but contained no request for a cash payment for his unused compensatory time. Approximately 10 months after his resignation, Claimant made the claim involved in this case.

The issue in this case is whether there are any rules of the Department of Personnel which provide for payment in cash of unused compensatory time and if not, whether there was any contractual arrangement which would require Respondent to pay cash for unused compensatory time.

There are two Department of Personnel rules in question. Rule 3-320, effective on June 1, 1975, and which remained in effect throughout Claimant’s employment with the IBI, is as follows:

“3-320 OVERTIME: For those positions approved by the Director and designated on lists maintained by the Director, authorized work in excess of an approved work schedule shall be overtime. Such work may be compensated for in cash or compensatory time as determined by the agency provided such designation is in accordance with the Fair Labor Standards Act, as amended. Overtime work shall be distributed as equitably as possible among qualified employees competent to perform the services required, when overtime is required, and employees shall be given as much advance notice as possible. Except where required by law, time spent in travel shall not be considered overtime.
Compensatory time, if any is earned hereunder, shall be scheduled at the convenience of the agency after consideration of the employee's preference, but within the fiscal year during which such time was earned. If such compensatory time is not liquidated within the fiscal year during which earned, it shall be liquidated in cash at the end of the fiscal year.”

A thorough reading of this rule grants cash compensation for overtime only to such employees who. hold positions designated on lists maintained by the director. According to the evidence in this case (Claimant’s exhibits Nos. 6 and 7), the position of special agent was never listed among position titles eligible for cash payment for overtime. Actually, there is no authorization in Rule 3-320 for even compensatory time for overtime hours and the evidence in the case was that compensatory time was granted without official sanction of the Department of Personnel and, in fact, was against the rules and regulations of the Department of Personnel.

Rule 3-340 was in effect from November 1, 1972, to June 1, 1975, covering the first four months of the disputed period. Rule 3-340 states as follows:

“3-340 OVERTIME: Authorized work in excess of an approved work schedule shall be overtime. Such work may be compensated for in cash or compensatory time as determined by the Director. Overtime work shall be distributed as equitably as possible among employees competent to perform the services required, and they shall be given as much advance notice as possible. Time spent in travel shall not be considered overtime.
Compensatory time shall be scheduled at the convenience of the employing agency, after consideration of the employee’s preference, but within the fiscal year during which the related overtime was worked. If such compensatory time is not liquidated within the fiscal year during which it has been earned, said time must be liquidated in cash at the end of the fiscal year.
. The Director shall maintain lists of those positions which are exempt from the payment of overtime in any form.
This rule shall be subject to such modification as may be necessary to comply with such provisions of Public Law 89-601 as may be applicable to positions in the State service, (as revised September 22, 1970).”

This rule is similar to Rule 3-320 except that it mandates cash liquidation of overtime for all positions except those on lists maintained by the director. Thus, in Rule 3-320, the director must maintain lists of those positions which are eligible for cash overtime and rule 3-340 requires that the director maintain lists of those positions which are ineligible for cash overtime.

The lists maintained by the director (Claimant’s exhibits Nos. 6 and 7) were lists of those job titles eligible for cash overtime but also contained the words “all other job titles are not eligible for overtime.”

Since Claimant’s job title is not on the list of those eligible, it is clearly, therefore, listed as ineligible by virtue of the above wording.

It is the opinion of the Court that Claimant’s job was not on the list of those eligible for additional payment whether by cash payment or otherwise and Claimant is therefore ineligible to recover the amount he seeks.

Claimant relied upon the case of McDougall v. State, 30 Ill.Ct.Cl. 629. In that case, the Claimants were employees of the Department of Law Enforcement as crime scene technicians and were seeking payment for overtime. This Court held that under Rule 3-340 in effect at the time, Claimánts were entitled to cash liquidation of uncompensated overtime work. That rule is not the same as the rule in effect at the time of Claimant’s employment. At the present time, the director is required to set out specifically which job titles are eligible for cash and which job titles are not eligible for cash and, as has been previously noted, the job title of special agent was never listed as eligible.

Nor has Claimant proved any contractual agreement requiring cash liquidation of overtime hours not otherwise compensated for. In fact, the evidence was to the contrary. The necessity for overtime was made a condition of employment. The restriction that compensatory time would be limited to only four days per month was also made known to Claimant. He admitted that he was told that overtime work would not be paid for in cash. There is a notable lack of evidence of any agreement whatsoever, both prior to Claimant’s beginning of employment and after commencement of his employment that uncompensated overtime would be paid for in cash. Claimant admitted that he had no expectation of any cash payment for overtime. In addition, the IBI had a written policy denying overtime pay, which written policy was encompassed by an IBI general order (Claimant’s exhibit No. 3), which exhibit stated: “Personnel will forfeit regular days off and compensatory time not taken before the date of separation.”

Claimant has, therefore, not proved any contractual right to cash payment for overtime hours.

Claimant further contends that the State should be estopped from defending this claim on the issue of liability in view of right and justice and cites Hickey v. Illinois Central Rairoad (1966), 35 Ill.2d 427, 220 N.E.2d 415, as establishing that the doctrine of estoppel may be applied to actions of the State. The Hickey case states that in ordinary situations, estoppel does not apply to the State and that while estoppel may be available under certain circumstances against the State when the State is acting in a proprietary capacity, it is rarely, if ever, applied against the State in its governmental capacity. The State’s actions in this case demonstrate in the operation of the Department of Law Enforcement, a governmental capacity.

The Court believes that the Claimant knew, or should have known, of the IBI written policy with regard to forfeiture of unused compensatory time upon separation from State employment. It is the Court opinion that the Claimant, at the time of his acceptance of the position he held, was aware of all of the conditions set forth by Respondent.

It is, therefore, the opinion of this Court that Claimant’s claim should be denied. This cause is dismissed.


text:
    (No. 78-CC-1331
    Anne Richardson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 23, 1983.

    Gende & Mesich (James J. Mesich, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a claim brought by Anne Richardson against the State of Illinois for damages flowing from an automobile accident which occurred on September 6, 1977, and which resulted in her personal injuries. The accident occurred during the late evening hours on Illinois Rt. 17 when the vehicle in which Claimant was a passenger left the highway after failing to negotiate a curve located approximately one mile north of the city of New Boston. After leaving the highway, the vehicle traveled onto a rest area of roadside tables and overturned several times. From the pleadings, it appears that Claimant’s position is that the vehicle was caused to overturn when it struck a hole located several feet off the roadway. This hole, according to Claimant, existed as a result of the State’s negligence: The trial of this matter was held on May 27, 1982. Each party has filed a brief, and the matter now comes on for the Court’s decision.

The evidence adduced at the hearing showed that prior to the accident, Claimant, along with her brother, William Richardson, and JoJo Morrissey, had spent time at a tavern in Moline, Illinois. After leaving the tavern, the trio, with William Richardson driving, proceeded west on Rt. 17 in the direction of New Boston. The curve in question is located approximately one mile north of New Boston.

It was not demonstrated exactly why the Richardson vehicle failed to negotiate the curve, although the investigating officer testified that in his opinion, based on his personal observations of the scene, the vehicle was travel-ling at a high rate of speed. In addition, there was evidence of alcohol consumption by the occupants of the vehicle. Furthermore, it was conceded by Claimant’s attorney that William Richardson was guilty of negligence. There has been no allegation that the highway itself was defective in any way. As indicated, it is Claimant’s position that the State was negligent by allowing the existence of a hole several feet off the roadway. It is contended that the Richardson vehicle struck this hole after leaving the highway, causing the car to overturn and thereby causing Claimant’s injuries.

As is true in all cases of this type, Claimant’s burden is to prove by a preponderance of the evidence that the State breached its duty of reasonable care and that the negligence flowing from the breach proximately caused the Claimant’s injuries. Brockman v. State (1975), 31 Ill. Ct. Cl. 53.

The parties devote considerable time to the question of whether or not a hole or depression existed off the roadway and if it did, whether it gave rise to negligence by the State. It is not necessary to discuss these issues however, for even assuming the hole’s existence and thereby the State’s negligence, it is clear that there has been no showing that the hole and the State’s negligence, if any, was the proximate cause of either the accident or Claimant’s injuries.

It is clear that the alleged hole played no role in the vehicle leaving the highway in the first place.

The only occurrence witness who testified was Claimant and she remembered nothing of the accident. For reasons unknown, the other two occurrence witnesses, William Richardson and JoJo Morrissey did not testify. Unfortunately, therefore, there was no direct testimony tending to show any role the alleged hole may have played regarding the overturning of the car after it left the highway.

One of the Claimant’s witnesses, New Boston fire chief, Clair Riley, testified that after he arrived on the accident scene, he observed tire tracks from the vehicle extending from the roadway into the rest area and across the area where the alleged hole was. The hole was apparently left from the prior removal of a tree stump. The investigating officer, deputy David Thompson, referred to the hole as “just a slight recession in the soil.”

Fire chief Riley’s testimony regarding the tracks, for all practical purposes, was the only evidence offered by Claimant tending to show that the alleged hole may have been the cause of the car overturning. That evidence cannot sustain Claimant’s burden of proof. At best, it only gives rise to speculation.

In her brief, Claimant states that “obviously the overturning of the car caused the Claimant’s injuries.” That statement may be true, but it proves nothing. Claimant’s theory that the alleged hole caused the car to overturn is purely speculation and not supported by sufficient proof.

In summary, the evidence only shows that Claimant’s vehicle failed to negotiate a curve, it left the roadway, overturned and Claimant was injured. There was evidence of alcohol use by the occupants of the car, and there was evidence that the car was travelling at a high rate of speed. There simply was no proof sufficient to sustain Claimant’s burden that the alleged hole either caused the accident or Claimant’s injuries.

This claim is hereby denied.


author: Polof, C.J. Poch, J.

text:
    (No. 78-CC-1474
    Wayne L. Appleton, D.V.M., Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed March 14, 1979.

      Order on denial of rehearing filed July 15, 1981.

      Order vacating dismissal filed December 17, 1981.

      Opinion filed March 7, 1983.

    John K. Surman, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Polof, C.J.

This cause coming on to be heard on the motion of Respondent to dismiss, on the ground that the complaint herein fails to meet the requirements of Rule 5A of the Court of Claims;

And Claimant not having responded thereto;

And the Court being fully advised in the premises;

It is hereby ordered that Respondent’s motion to dismiss the complaint be, and hereby is granted, without prejudice.

ORDER ON DENIAL OF REHEARING

Poch, J.

This cause coming on to be heard upon the motion of the Claimant for a rehearing and oral argument on Respondent’s motion to dismiss.

The Court having heard oral argument in this matter, petition for rehearing is denied and this cause is dismissed.

ORDER VACATING DISMISSAL

Holderman, J.

The complaint herein was for services furnished which were not paid after Claimant was wrongfully discharged. The Civil Service Commission rendered its decision holding wrongful discharge. On administrative review this decision was affirmed. Thereafter, the director of the department of personnel reversed the layoff of Claimant. Following this, Claimant was reimbursed the sum of $12,216 for salary and benefits for fiscal 1977, but was not reimbursed for the time of September 30, 1973, thru June 30, 1976, because of lapsed appropriations. The Department of Agriculture in a memorandum dated November 8, 1978, set forth the lapsed salary, contributions to retirement system and Social Security system. A copy of the memo is attached to Claimant’s motion to vacate filed October 21, 1981.

From the record before us we find no issue by the State denying the wrongful discharge. There remains, however, the question of mitigation by earnings of Claimant.

After reviewing the entire record, we find that this case should be determined by assigning it for hearing to determine the following issues of fact:

1. Total gross pay due Claimant for period up to July 1, 1976, from September 30, 1973 (the date of wrongful discharge).

2. The amount, if any, that Claimant otherwise earned during said period in mitigation or offset against the total gross he would have earned.

Case reinstated and assigned for hearing on above issues.

OPINION

Holderman, J.

Claimant, Wayne L. Appleton, a doctor of veterinary medicine, was discharged from his position as chief veterinarian, meat and poultry inspection, Illinois Department of Agriculture, on October 1, 1973.

Claimant commenced legal proceedings in an attempt to be reinstated to his position. He was successful before the Civil Service Commission, the circuit court, the appellate court, and the department of personnel, each agency and court declaring that his termination by Respondent was wrongful and each of them ordering him reinstated to his position.

Claimant finally returned to work on July 1, 1977, and at that time he received back pay for the fiscal year 1977, covering July 1, 1976, through June 30, 1977. He is now seeking to recover for lost wages during the period of October 1, 1973, through June 30, 1976, in the amount of $65,935.00. In addition, Claimant seeks lost contributions to the Illinois Retirement System and to Social Security.

The evidence is undisputed that the amount of $65,935.00 was the amount of wages lost by Claimant and that there were no contributions made to the Illinois Retirement System or to Social Security during the period in question. The State does not contest the amount of damages.

The only question before the Court is whether or not Claimant made proper attempts to mitigate his damages during the period in question. The evidence is uncontroverted by the State that Claimant made several attempts to find suitable employment but was unsuccessful. At one time Claimant had been in private practice but at the time he entered the employ of the State, he sold his interest in his private practice to a colleague. In addition to selling his interest, he entered into an agreement not to return to the area where he formerly practiced to seek the return of his former patients.

The commissioner, in his report, referred to the Claimant’s age and his physical condition as being a handicap in his attempt to return to private practice as a veterinarian. The evidence indicates that Claimant’s practice dealt with large animals and he was not acquainted with the methods of treating small animals and therefore was not qualified to practice veterinary services on small animals.

The record shows that during the period Claimant was off work as a result of his discharge by Respondent, he operated a farm. The evidence clearly shows this was not a successful operation and that Claimant consistently lost money in farming.

The record further shows that Claimant did make a substantial effort to seek gainful employment to mitigate his damages.

In Sullivan v. State, 26 Ill.Ct.Cl. 117, the Court laid down the rule that where a Civil Service employee is illegally prevented from performing his duties, he must mitigate his damages, citing several Illinois cases.

It is the Court’s opinion that Claimant, in this instance, did meet the requirements necessary to mitigate his damages and was unsuccessful in securing gainful employment. It appears that much of the time that elapsed between the discharge and the time of reinstatement was prolonged by the State in appealing the decisions of the various agencies through which Claimant was attempting to be reinstated.

An award is hereby made in favor of Claimant in the amount of $65,935.00, plus appropriate additions for the Illinois Retirement System and Social Security.


text:
    (No. 78-CC-2136
    Arthur Young & Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 4, 1983.

    Winston & Strawn (Daniel F. Weil, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (William R. Wallin, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter is before the Court on a joint stipulation as to facts and to our granting of an award. In pertinent part the stipulation reads as follows:

1. On October 29, 1976, Claimant contracted with . the Illinois Bureau of Employment Security (IBES) to perform work on a project to analyze, convert and implement a computerized tax system for the contributions section of IBES’ Division of Unemployment Insurance. The project was based upon the conversion of a similar computerized tax system in Louisiana. The original agreement between Claimant and IBES was approved by the Department of Finance (subsequently the Department of Administrative Services).

2. Pursuant to the terms of the original agreement, three supplemental agreements were executed between Claimant and IBES requiring Claimant to perform additional work. The supplemental work was required at least in part by the failure of Millicent Systems, Inc., another contractor, to perform its related contract in a proper and timely manner and by the decision of IBES to change the nature of the project from the conversion of the Louisiana system to the design of an entirely new tax accounting system.

3. All work performed by Claimant pursuant to the original and supplemental agreements was performed at the request of IBES; was performed to the satisfaction of IBES; and did not exceed the amount appropriated for the project.

4. A dispute has arisen between Claimant and Respondent with respect to the amount due Claimant for work performed under the supplemental agreements. Partial discovery has been completed and partial evidence has been submitted.

5. There are no disputed questions of fact.

6. After extensive discussions between Claimant and Respondent, the parties, in the interests of justice and to avoid protracted litigation, agree to settle Arthur Young’s claim of $51,309.00 for $40,000.00.

7. The evidence submitted at the hearings on this matter support this settlement.

0 0#

9. Based on the foregoing, Respondent agrees to the entry of an award. for Claimant in the amount of $40,000.00.

The stipulation was then signed by counsel representing both parties.

This Court is, of course, not bound by such stipulations, but we do not reject them out of hand, and do in fact encourage settlements where the facts and interests of justice support this type of resolution. After reviewing the record in this case we do accept the stipulation and find in the Claimant’s favor for the amount agreed upon.

Accordingly, it is hereby ordered that Claimant be, and hereby is, awarded the sum of $40,000.00 (forty-thousand dollars and no cents) in full satisfaction of this claim.


text:
    (No. 79-CC-0114
    Edwin J. Ade and Cassen Transport Company, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 26, 1983.

    Norton, Bonifield & Associates, for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim arises as a result of a motor vehicle accident which occurred on October 25, 1978, at approximately 4:00 p.m. on the Interstate 55-70 bridge across the Mississippi River between St. Louis, Missouri, and East St. Louis, Illinois.

Claimant, Edwin J. Ade, was driving an auto transport truck for his employer, Cassen Transport Company, when it collided with a State of Illinois emergency traffic patrol truck being driven by Jimmy Simons. Both drivers were in the course of their employment at the time of the accident.

Claimant had just loaded his truck with five cars and a van at his terminal in Fenton, Missouri, and was en route to Wisconsin. He was driving east across the bridge. There were four eastbound lanes on the bridge and his vehicle was in the second lane from the left at the time of the accident. Respondent’s truck was also traveling east on the bridge and was in the first lane on the left.

The road in this particular area consists of four eastbound lanes, two carrying traffic north on I 55-70 and two carrying traffic off the interstate onto local roads. It was Claimant’s intention to continue north on the interstate highway. Upon entering this area, Claimant pulled into the second lane from the left which was the lane he was occupying at the time of the accident. The truck being driven by Simons was also traveling east on the bridge and was in the first lane from the left. The traffic in Claimant’s lane was clear in front of him for several hundred feet. According to his testimony, Claimant was driving at about 30 to 40 miles per hour. The traffic in the first lane, which was to claimant’s left, was heavier and was moving slower. The truck being driven by Simons was ahead of Claimant. When Claimant pulled next to the truck, Simons’ truck swerved to the right into Claimant’s lane of traffic, striking Claimant’s truck, and causing him to swerve to the right. With considerable difficulty, Claimant was able to bring his truck under control.

It must be noted that Claimant’s truck never left its proper lane of traffic and the only deviation was when the Respondent, without warning, swerved his truck into the truck being driven by Claimant, colliding with Claimant’s truck.

Claimant’s truck suffered some body damage, a blown tire and damage to the steering mechanism. The front bumper was torn off the State truck and there was damage to the radiator and the body of the truck.

A second Illinois emergency truck was following not far behind the truck that caused the accident. The driver of the second truck saw the truck being driven by Simons suddenly swerve to the right about two feet into Claimant’s lane of traffic, causing the accident.

Simons, the driver of the truck that caused the accident, testified he was driving on the bridge in the left lane of traffic, and he applied his brakes when the traffic ahead of him slowed, and this braking pulled his truck to the right and into Claimant’s vehicle.

Respondent is not disputing the negligence of its employee but contends that the evidence shows Claimant was speeding and therefore guilty of contributory negligence. There is not one scintilla of evidence that would indicate that speeding had anything to do with the accident in question. The entire record points to the fact that if the Respondent’s truck had remained in its proper lane, this accident would not have occurred.

Claimant, who had been a truck driver for a number of years with the same company and had served in the United States Navy, testified he had considerable difficulty getting his truck under control after the accident happened. He also testified that he thought he was going to go off the bridge and into the river and it was only with considerable physical exertion on his part that he was able to get the truck back into its proper lane. In view of the fact the left front tire of the truck was deflated by the accident, it is easy to understand why there would be considerable difficulty in. steering the vehicle.

Several years prior to this accident, Claimant had some problems with his back but they were apparently cleared up, according to his testimony and that of the doctor who took care of him. The evidence disclosed that he had not taken any treatments or had any complaints for a considerable period of time prior to this accident.

The truck driven by Claimant was taken back to. the company’s headquarters after the accident and some repair work was done on it. The next time Claimant took this truck out, he attempted to drive it and had difficulty controlling the steering, and it was taken back for further repairs. This happened on two occasions and is rather indicative of the force with which it was struck by Respondent’s truck and the damage it sustained.

Claimant complained of injuries to his back and continuing dreams of going off the bridge and into the river. He was given medical treatment and an examination revealed he was having muscle spasms, his back was exceedingly tender, and any lifting or hard work aggravated the injury.

Claimant was off work for approximately 44 weeks, wás hospitalized on several occasions, was placed in traction, given physical therapy, sedatives, and various other kinds of treatment. Claimant testified he consulted a psychiatrist for his continuing dreams of going off the bridge. The accident and subsequent problems evidently affected Claimant’s personality because he and his wife encountered considerable marital difficulties which finally resulted in divorce. His treating psychiatrist testified that it was his opinion that the irritation and aggravation of the pain in his back, together with his enforced idleness, was the reasonable result of the accident in question. .

This Court has held that before a Claimant can recover in cases of this sort, he has the burden of proof and that Claimant must prove by a preponderance of the evidence that (1) Respondent was negligent; (2) that such negligence proximately caused the injuries; and (3) that Claimant was in the exercise of due care for his own safety and therefore free from contributory negligence.

Respondent relies solely on the issue of speeding and yet there is not any evidence of any kind or character that would indicate speeding had anything to do with this particular accident. The accident was caused by the negligence of Respondent in swerving into the traffic lane in which Claimant’s truck was being driven. It is therefore clear there was not any contributory negligence on the part of Claimant. See Schaav v. State 26 Ill.Ct.Cl. 344; also Testa v. Kaluzny Brothers, Inc. (1974), 23 Ill. App. 3d, 841.

The record indicates that Claimant was hospitalized several times in the St. Louis area and received various medical, psychiatric and chiropractic treatments. His total hospital bills are in the amount of $5,338.40; his doctors’ bills are $3,411.75; total expenses for ambulance, lab tests and medicines are $319.05; his estimate of transportation costs are $489.52; and total lost wages are $24,172.28. Claimant has received from workmen’s compensation $3,372.05 in payment of some of his medical and hospital bills, $6,567.68 for the time he lost from work, and a $16,000.00 settlement for his permanent injuries: The evidence shows he is still spending approximately $20.00 per month for pain medication which he uses daily.

The medical evidence introduced by Claimant shows he has soft tissue damage along his entire spine, that this is a permanent condition, and would be constantly aggravated by the type of work Claimant does which requires heavy lifting and exertion. Dr. Edstrom testified that Claimant will have to continue to seek chiropractic treatment to relieve his pain, probably as often as once a month for the rest of his life.

Dr. Keith Isenberg, a resident in training in psychiatry at Washington University Medical School in St. Louis, testified he started treating Claimant on July 20, 1979. Claimant had given Dr. Isenberg a detailed history of his accident and subsequent problems, including his dreams about going off a bridge in this truck. This history included details of treatment by numerous doctors for the back pains, headaches, troubles with Claimant’s marital relationship, alcohol abuse, depression and sleeplessness. A course of treatment was initiated which included antidepressant medications, talk therapy, marital therapy and counseling on abstinence from alcoholic beverages. The doctor saw Claimant on various occasions and testified that Claimant was treated by several other doctors at the clinic. He testified he, believed the dreams about the accident, fear about possible mechanical defects in his truck and anger were overpowering and initially disabling to Claimant and were part of a secondary depression. He stated it was his opinion that the depression had been caused by the accident and the symptoms might recur so as to prevent Claimant from working in the future and might be permanent.

It appears from the record that Claimant sustained painful back.injuries which were aggravated by his psychiatric problems. For a period of almost one year, Claimant was completely disabled by his condition. At the time of the hearing, Claimant had reduced his chiropractic treatments and ceased his psychiatric sessions and testified he felt much better.

The record shows Claimant has received a total amount of $25,939.73 from his workmen’s compensation claim. The statute governing claims of this nature provides for the repayment to the employer for all amounts paid by it for medical, surgical and hospital services of Claimant.

Since no evidence has been presented in regard to this lien other than the total amount of compensation paid, the Court hereby awards an amount of $50,939.73 jointly to Claimant and his employer, Cassen Transport Company, as full, final and complete settlement in this cause.


text:
    (No. 79-CC-0483
    David J. Pratt, Sr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 15, 1982.

    David J. Pratt, Sr., pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The Claimant, while an inmate at the Department of Corrections, filed a pro se complaint for personal injuries, allegedly received while in the Cook County jail hospital. The Claimant did not file any notice of intent to sue or bring claim against the State as required by the provisions of section 22-1 of the Court of Claims Act. Ill. Rev. Stat. 1979, ch. 37, par. 439.22-1.

This cause was assigned to a commissioner of this Court to conduct a hearing. On August 9, 1979, a hearing was held before the commissioner. The Claimant conceded that his injury occurred at the Cook County jail hospital, a facility which is not within the jurisdictional control of the Illinois Department of Corrections, but which is operated by the County of Cook, or one of its subdivisions.

Subsequent to a general continuation of the hearing, the Respondent has filed a motion to. dismiss the claim and a motion for judgment on the pleadings. The Respondent is entitled to the relief requested in both motions.

The complaint of the Claimant is defective in several respects. It is not verified and fails to meet the pleading requirements of Rule 5A of this Court which, pursuant to Rule 9, is a basis for dismissal.

While the pleading defects are more formal than substantive and standing alone could result in dismissal with leave to replead, the Claimant never filed any notice of intent as required by section 22-1 of the Court of Claims Act. (Ill.Rev.Stat. 1979, ch. 37, par. 439.22-1.) Such failure to do so is a bar to this action which requires dismissal of his claim with prejudice. Ill.Rev.Stat. 1979, ch. 37, par. 439.22-2.

The Respondent is entitled to judgment in its favor based upon a review of the pleadings. The Claimant alleges he was injured while in the custody of the sheriff of Cook County in the Cook County jail hospital. The Cook County jail is governed by the provisions of the County Department of Corrections Act. (Ill.Rev.Stat. 1979, ch. 125, par. 201 et seq.) Section 3 (Ill.Rev.Stat. 1979, ch. 125, par. 203) provides that the county jail is operated by the Cook County Department of Correetions, which is not a State agency. The jail hospital is operated by the Cook County Health and Hospital Governing Commission, which is not an agency of the State of Illinois. Ill.Rev.Stat. 1979, ch. 34, par. 5020.

Since the Claimant does not allege and the pleadings show he was not within the care, custody or control of any agency of the State, the Respondent is entitled to judgment in its favor on the pleadings.

It is therefore ordered:

That the complaint of the Claimant is dismissed with prejudice.


text:
    (No. 79-CC-0605
    American States Insurance Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1983.

    Ronald E. Halliday, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

The Claimant is a subrogee of its insured, James W. Stout, who was injured while driving a truck northbound on Illinois Route 26 on April 16, 1977. The truck involved was a 1968 International Harvester and the accident occurred around 1:30 p.m. Claimant was riding alone in said truck and was.being followed by his son, Rex Stout, and according to the evidence, he was travelling at approximately. 40-45 miles per hour.

According to the record, it appears that James Stout reached a point approximately 10 miles south of Lacón, Illinois, near an intersection with Santa Road, when he reached a bridge. The road surface up to that point had been smooth. There was a sign on the bridge warning of rough road. Upon seeing the sign, Mr. Stout reduced his speed by about 10 miles per hour. The évidence is to the effect that the driver was unfamiliar with the road since he had not driven over it for four to eight months prior to the accident.

After crossing the bridge, Mr. Stout observed a large chuckhole 40 to 60 feet from the end of the bridge. The distance from the sign to the chuck hole was between 100 and 125 feet. The evidence shows that the road where the hole was located was lower than the bridge pavement and therefore Mr. Stout was unable to see the hole until he had crossed the bridge. The evidence shows the hole was six to eight feet in diameter and from six to eight inches deep. Mr. Sto.ut’s son, Rex, who was the only eyewitness, testified that the. hole measured 10 to 15 feet wide, six to eight feet long, and four to six inches deep. Mr. Stout also testified that the hole crossed over the center line and that it was so wide he could not have avoided it by driving off onto the shoulder.

As Mr. Stout struck the hole, the rear of his truck was thrown into the air, crossing the center line. The truck began to fishtail but Mr. Stout was able to control it and avoid a head-on collision with a pickup truck in the oncoming lane. The trailer then pulled into the ditch. The trailer pulled the rear of the truck and it rolled over.

At the time of the accident, Mr. Stout had had the truck for less than one month. He testified he purchased the truck on February 28, 1977, for $7,350.00 and took delivery of it on March 1, 1977, but sent it back for repairs to the transmission. The record shows the truck was a total loss and the highest bid for salvage was $1,565.50. There were towing and storage expenses in the amount of $321.50 and a $500.00 deductible on the insurance policy, making a total claim of the subrogee of $5,581.00.

According to the record, Rex Stout returned to the scene of the accident less than four hours later to take pictures. Upon his return, he found the warning sign had been moved 50 to 75 feet behind the guardrail so that it provided an earlier warning. He further found that the Respondent’s maintenance workers were already engaged in repairing the road surface.

State Trooper Gene Kizer testified that he was the patrol officer for that area and lived nearby. He recalled this particular chuckhole but did not remember whether he notified the Illinois Department of Transportation of its existence. His testimony was disputed by Rex Stout who stated that trooper Kizer told him he had been trying to get the State to fix that road for a couple of months.

Mr. John Hartwig, a maintenance field engineer for the Illinois Department of Transportation, testified that more than 77 tons of cold mix material had been used on that subsection from March 4 to April 16 of that year. He also testified that the State was aware of the rough road section and that cold patch is a temporary material. According to the time cards, which were introduced by Respondent, there was no further maintenance done after April 4.

Before Claimant can recover in a suit of this nature, he must prove Respondent was guilty of negligence, that he was free from contributory negligence, and that Respondent’s negligence was the cause of the accident. It is also required that the State have knowledge of the dangerous condition.

The evidence is clear that the State had actual knowledge of this condition because of the patches they had put on this particular area and because of the warning signs that were put up a comparatively short distance from the hole in question.

The record is clear that the road where the hole was located was lower than the bridge pavement and was not visible to the oncoming traffic until the traffic was within a short distance from the hole in question. The fact that Respondent moved the warning sign back further after this accident occurred is strong evidence to the fact that the sign had not been placed far enough away from the hole to give the travelling public enough time to slow down to avoid accidents.

It is clear from the record that Claimant was free from contributory negligence and that the proximate cause of the accident was Respondent’s failure to repair this pothole and to adequately warn the travelling public of its danger.

An award is hereby made in favor of Claimant in the amount of $5,581.00.


text:
    (No. 79-CC-0724
    Regnal J. Jones, Claimant, v. The Board of Governors of State Colleges and Universities, Respondent.

      Opinion filed February 4, 1983.

    Julius L. Sherwin, for Claimant.
    Neil F. Hartigan, Attorney General (Kenneth G. Kombrink, Special Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The Claimant, Regnal J. Jones, has filed a claim against the Board of Governors of the State Colleges and Universities seeking $15,000.00 in damages for an alleged break of an employment contract. The claimant had been employed by the Chicago State University as a nontenured assistant professor of biology for a number of years before the academic year 1976-1977 at a salary of $15,000.00.

On June 14, 1976, the vice-president for academic affairs, Dr. Allan DeGiulio, sent a letter to the Claimant offering him a probationary contract as assistant professor commencing September 1, 1976. The letter went on to indicate that tenure could be possible a year later. The Claimant sent Dr. DeGuilio a letter that was received at Chicago State University on June 24, 1976, which stated in part “I accept the University’s offer of employment for the academic year 1976-77.” During negotiations before June 24, 1976, the Claimant was asked to sign a letter of acceptance drafted by the University. He refused tó do so and sent in his own letter of acceptance.

The Claimant reported to work at the commencement of the academic year in September 1976. He was refused a class assignment and was not allowed to teach at the. University. During that academic year he attempted to obtain other suitable employment but was able to work for only two months and earned only $4,000.00.

The Claimant seeks damages for the alleged breach of the employment agreement offered by the University and accepted by the Claimant. The Respondent claims that the refusal to sign the acceptance letter drafted by the University is a refusal to accept all terms and conditions of the offer and thus is not an acceptance.

The written offer of June 14, 1976, issued by the University was not conditioned upon other conditions or time restrictions upon its acceptance. It was not withdrawn before the acceptance.

A contract exists when there is an offer accepted by the recipient and consideration for the performance of certain acts. In this case the University made an unconditional written offer of June 14, 1976, to the Claimant. The Claimant’s acceptance was received by the University on June 24, 1976. The consideration was for the Claimant to teach and for the University to provide a place to teach and to pay the annual salary of $15,000.00. Therefore, there was valid employment contract existing on June 24, 1976. The refusal of the University to accept the Claimant when he reported to work at the commencement of the academic year constitutes a breach of the Claimant’s contract entitling him to an award of damages for the breach.

The Claimant was able to find work for the academic year 1976-77 for only two months and earned $4,000.00. That sum is to be credited against the award of damages. If the University had allowed the Claimant to work he would have been paid $15,000.00 for the 10-month academic year. The breach of the employment contract by the Respondent entitles , the Claimant to an award of the salary he would have have earned pursuant to the contract ($15,000.00) less the amount actually earned through other employment ($4,000.00). Therefore, the Claimant is entitled to an award of eleven thousand dollars ($11,000.00).

It is hereby ordered that the Claimant, Regnal J. Jones, be awarded the sum of eleven thousand dollars ($11,000.00).


text:
    (No. 79-CC-0730
    Stephen M. Norman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 15, 1982.

    Mark A. Rose, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this cause was riding his motorcycle on Interstate 74 in Peoria County, Illinois, on April 10, 1977, at approximately 9:30 p.m. As he was proceeding eastbound in the right hand lane and as he proceeded under the Ellis Street overpass, he encountered certain chunks of concrete lying in his path on the roadway that had fallen from the overpass. Claimant’s motorcycle struck one of these pieces of concrete causing his vehicle to skid out of control, throwing him off said vehicle.

Claimant and his motorcycle landed in the center grass median approximately 180 feet east of the overpass. Fortunately, Claimant was wearing a protective helmet and leather jacket so the only injuries he received were abrasions to his knees. He declined medical treatment.

The record is fairly brief as Claimant was not willing to appear in Illinois for a hearing. The only evidence introduced was a police report which was introduced by agreement between the parties.

This Court has repeatedly held that before there can be a recovery in cases of negligence, Claimant must show that Respondent was negligent, that said negligence was the proximate cause of the accident, and that Claimant was exercising due care for his own safety. See Thriege v. State, 24 Ill. Ct. Cl. 470; Kloese v. State, 30 Ill. Ct. Cl. 4.

Claimant apparently bases his case on the fact that the accident took place on a State highway. That fact in itself, according to his theory, is sufficient grounds for recovery.

The record is devoid of any showing of due care on the part of Claimant and it is also completely devoid of any attempt to show that the State had notice of the fact that there were concrete blocks on the highway. To accept Claimant’s theory of the case, we would have to entirely eliminate the necessity of his showing due care on his part and also, before the State can be held responsible, it must be shown it had notice of the condition that caused the accident. Claimant’s theory would also make the State an insurer for every accident that took place on its highways or other property.

The law has been clear and this Court has repeatedly held that the State is not an insurer of its roads. See Palmer v. State, 25 Ill. Ct. Cl. 1, McCrary v. State, 22 Ill. Ct. Cl. 328, and Link v. State, 24 Ill. Ct. Cl. 69.

This Court has also held that “before the State can be held liable for any injury on property maintained by it, it must have actual or constructive notice of the dangers or hazardous conditions.” See Finn v. State, 24 Ill. Ct. Cl. 177.

While there are other items discussed in the briefs of the parties in this cause, the Court believes the failure on the part of Claimant to prove his cause of action and comply with the laws governing said accidents has not been met for the reasons cited above.

Award denied. Case dismissed.


text:
    (No. 79-CC-0756
    Horace Brown, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 26, 1983.

    Owen, Roberts, Susler & Murphy, P.C. (Leslie L. Veon, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The Claimant, Horace Brown, seeks recovery of $3,856.00 in damages for personal injuries sustained on December 24, 1978, when he fell down stairs which were covered with ice at the State’s youth center in St. Charles, Illinois.

Claimant contends that the State of Illinois was negligent in failing to remove the ice from the steps utilized by visitors to the youth center, and that the State was negligent in failing to warn the Claimant of the unreasonably dangerous condition of the steps. The Respondent maintains that the Claimant has failed to show that he was free from contributory negligence and regardless thereof, that the State has no duty of liability for injuries sustained as a result of the presence of naturally accumulated snow and ice.

The facts, as adduced by testimony and stipulation, are not complicated nor are they contradicted. On December 24, 1978, the Claimant and his wife visited their son at the youth center in St. Charles, Illinois, the visit occurring at their son’s residence, Jackson Cottage. When visiting hours were over, a youth center guard directed the visitors, including the Claimant, to leave through the back door of the cottage. The back porch of Jackson Cottage was apparently clear of ice and snow, but the steps from the porch were covered with ice. While descending the steps, Claimant slipped on the ice, fell down several steps, and as a result, sustained personal injuries. It also appears that immediately preceding his fall, both Claimant and the youth center guard witnessed two women visitors slip on the same steps.

The State does not deny that the Claimant, as a visitor to the Illinois youth home, enjoys the status of an invitee.

In the case of Levy v. State of Illinois (1958), 22 Ill. Ct. Cl. 694, 696, this Court held:

“The fact that the State institutions have visitors’ days, and encourage visits with patients, would indicate that Claimant was more than a ‘licensee’ and should be treated as an ‘invitee’.”

It is well established that an invitee imposes upon the owner of property the duty to use reasonable care and caution in keeping the premises reasonably safe for use by the invitee. The Illinois Supreme Court perhaps best described the difference between the duty owed an invitee and the duty owed a licensee in Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 347, as follows:

“The materiality of the question of whether plaintiff was an invitee or licensee arises from the fact that a heavier duty of care is placed upon an owner of premises toward an invitee than toward a licensee or trespasser. Toward an invitee the owner of premises must use reasonable care and caution in keeping the premises reasonably safe for use by such invitee; while toward a licensee no duty is owed by such owner, except not to wantonly and wilfully injure him.”

Recognizing then that Claimant was an invitee to the youth center, the first question to be resolved is whether the State was negligent in failing to remove the ice from the steps of this State-owned building.

We do not believe the State was negligent. In fact, we believe the law is fairly well settled that the State had no duty to clear the natural accumulation of ice and snow from its premises. The Illinois Appellate Court, in Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 1004, 365 N.E.2d 80, stated:

“(A) landlord incurs no liability for injuries . . . caused by the natural accumulation of ice and snow on his property.”

In Demario v. Sears Roebuck and Co. (1972), 6 Ill. App. 3d 46, 50, the court said:

“In a ‘slip and fall’ case, there must be an affirmative showing by plaintiff of an unnatural accumulation of snow or an aggravation of a natural condition by defendant before plaintiff will be allowed to recover.”

Here there has been no showing that the accumulation of ice resulted from anything but natural conditions. Since the testimony at the hearing was clear that there had been no attempt to remove the ice or snow from Jackson Cottage, it cannot be said that the State in any way aggravated the natural condition.

Further, the testimony of a State employee, which stands uncontradicted, was that there was an ice storm the day of the accident. There was quite clearly no time in which the State could have commenced snow removal procedures. In that respect, we believe the authority relied upon by Claimant is distinguishable. Claimant cites White v. State of Illinois (1969), 26 Ill. Ct. Cl. 431, in which the facts are substantially similar to the instant case. In White, the Claimant, while a visitor (invitee) to the Illinois State Training School for Boys, slipped and fell on an icy sidewalk on the grounds of the school. There, as here, the State had made no attempt to remove the ice and snow from the sidewalk in question. This Court stated in part at page 437:

“ooo Respondent submitted that it had no time to do this (remove the snow). However, the weather reports showed that six days had passed since the precipitation had fallen.
It is not reasonable for the State of Illinois to invite visitors, and provide as the only access route a long sidewalk covered with ice and snow. The risk of injury was clearly foreseeable. It would appear that six days was enough time, to clear the walk, since other walks on the premises were in fact cleared. Respondent was negligent in its failure to use ordinary care towards its invitees.”

In White, we simply found that six days from the last snowfall to the commencement of snow removal was an unreasonable length of time, so much so that the risk of injury to a visitor was foreseeable and that the State, therefore, had not met its burden of keeping the premises reasonably safe for use by an invitee. In the instant case, with the testimony being clear that an ice storm had occurred that very day, we find no such unreasonableness.

The last question to be resolved is whether the State was negligent in failing to warn the Claimant of the. dangerous condition of the Jackson Cottage steps. The case of Prater v. Veach (1962), 35 Ill. App. 2d 61, 64, 181 N.E.2d 739, 741, while not specifically concerned with ice and snow, sets forth the following guide for the duty owed by the owner of land to an invitee:

“The owner of land is subject to liability for bodily harm or wrongful death to invitees resulting from natural or artificial conditions only if he knows of the condition and realizes that it involves an unreasonable risk to invitees, or permits them to remain on the land without exercising reasonable care to make the condition reasonably safe, or to warn invitees of the condition and the risk involved therein.”

The Claimant relies on Kelly v. State of Illinois (1969), 26 Ill. Ct. Cl. 426, wherein the Claimant was a visitor (invitee) to an open house at a State-operated children’s center where she participated in a tour conducted by an employee of the center. As a participant in the tour, she was directed through a door onto an open stairway where she fell. The evidence in Kelly indicates that there was no guardrail on that open stairway. We found that the State was negligent in failing to have guardrails on the stairway and in failing to warn the Claimant of that condition. In our judgment, Kelly is also distinguishable because there was no question that the State had knowledge of a pre-existing (no guardrails) dangerous condition. In the instant case, however, the facts are clear that the State employee who directed the Claimant to exit Jackson Cottage through the back door obtained knowledge of the icy condition of the steps moments prior to if not at the same time as Claimant. The facts indicate that Claimant himself witnessed two women immediately preceding him slip on the very stairs. The State cannot be said to have breached its duty of care owed to the Claimant by failing to warn Claimant of a condition he was as aware of as the State itself. As Respondent pointed out in its brief, in the case of Batson v. Western Union Telegraph Co., 75 F.2d 154:

“It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured, that a recovery is permitted. And hence there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant.”

And as we said in Weygandt v. State of Illinois (1957), 22 Ill. Ct. Cl. 478:

“Claimant is required to exercise a degree of care commensurate with the circumstances and will not be heard to say that she did not see what she must have seen if she properly exercised her faculty of sight.”

To recover on his claim, Claimant bears the burden of establishing by a preponderance of the evidence that Respondent breached its duty of reasonable care; that Claimant was free of contributory negligence; and that the negligence of Respondent proximately caused his injury.

This Court finds that Claimant has failed to establish that the Respondent was negligent in not removing the ice or in failing to warn the Claimant of the existence of the ice.


text:
    (No. 79-CC-0860
    Albert C. Bellini, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 1, 1982.

    Benjamin P. Hyink and Gerald A. Goldman, for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant, a one-time employee of the State of Illinois, seeks payment for various vacation days he allegedly accumulated between June 7, 1978, and October 31, 1978, while he was employed by the Illinois Supreme Court committee on criminal justice programs.

Claimant requests payment for vacation pay in the amount of $784.61, court costs in the amount of $250.00, and attorney fees in the amount of $1,500.00, totalling $2,534.61.

There are two issues presented to this Court: (1) whether Claimant accrued any vacation days during his period of employment with the committee; and (2) whether Claimant is entitled to an award for costs and attorney fees in an action brought in the Illinois Court of Claims.

The record discloses that for a comparatively short period of time Claimant worked for the Illinois Supreme Court committee. He resigned from this position and was then employed by the Illinois Law Enforcement Commission.

Claimant testified that prior to June 7, 1978, he met with the executive secretary for the committee in Springfield, Illinois, at which time he was told that there would be no problem with the vacation time that he claimed. This testimony is directly contradicted by the executive secretary for the committee. Claimant testified that he met with the director of the administrative office of Illinois courts and a professor on May 10,1978, at which time possible employment with the committee was discussed. According to Judge Gulley, the director of the administrative office, Claimant’s interview was no different from any other interview before the committee and he informed Claimant that the committee was not a code agency but was governed by the same personnel rules as applied to the judicial branch of the State. He stated he explained the details of the rules of the Supreme Court and, in particular, the method in which vacation days are accumulated.

Respondent, in its brief, pointed out that the committee is not subject to the provisions of section 4c of the Personnel Code (Ill. Rev. Stat. 1977, ch. 127, par. 63b104c). Judge Gulley stated the same policies had been in effect since 1818.

The Personnel Code in question states as follows:

“Section 4c. General Exemptions.
The following positions in State service shall be exempt from jurisdictions A, B and C, unless such jurisdictions shall be extended as provided in this Act:
(3) Judges and officers and employees of the courts, and notaries public.” (Ill. Rev. Stat. 1977, ch. 127, par. 63b104c.)

It is obvious that Claimant was exempt from the provisions of the Personnel Code and therefore there could not be a basis for the claim before this Court.

Claimant’s former position with the ILEC was covered by the Personnel Code but his position that he should have enjoyed the same benefits while working for the committee as with the ILEC is in error.

Respondent, in its brief, states that “the law is clear that one rendering services to the State is bound to ascertain the extent of the authority of an agent thereof.” It further states that “if the agent has no authority, he cannot bind the State with regard to payment.” See Klinczak v. State, 11 Ill. Ct. Cl. 110, and Schoenig v. State, 11 Ill. Ct. Cl. 634.

This Court has repeatedly held that the law in Illinois is clear that one cannot recover for attorney fees and court costs unless provided under a specific authority. See Harling v. State (1977), 32 Ill. Ct. Cl. 177, and Mooney Construction Co. v. State (1982), No. 77-CC-1219.

Claimant, having failed to cite any statute providing for these payments, is not entitled to an award in the amount claimed.

Award denied,


text:
    (No. 79-CC-1020
    Margie Becker, a minor, by and through Patricia Becker, her mother and next friend, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 4, 1983.

    Louis E. Olivero, for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimant, Margie Becker, by her mother and next friend, seeks to recover damages from the State of Illinois for personal injuries sustained by the Claimant while visiting Mattheissen State Park. The accident occurred on May 29, 1978, when the Claimant was 13 years old and she fell over a waterfall and dropped about 50 to 75 feet.

The area of the Mattheissen State Park where the Claimant was injured is called Cascade Falls. In this area, a long winding stairway is built into the side of the canyon, with handrails, leading directly into a rock basin (or creek bed) holding a pool of water. This pool of water empties over waterfalls into a lagoon approximately 50 to 75 feet below.

It is uncontroverted, that at the time of the accident, the stairs contained no warning signs nor devices stopping a person at the bottom. On the contrary, the steps lead directly into the rocky creek bed.

On the day of the accident, the Claimant walked down the steps and onto the creek bed. A number of people of mixed ages were swimming in the pool of water on top of the falls. The Claimant walked along the creek bed, stepped on a rock and slipped into the water. The Claimant does not remember anything that happened to her after she fell into the water, but it is uncontroverted that she was pulled from the water at the bottom of the falls.

The record contains evidence that this was not the first accident to happen at Cascade Falls. The site superintendent of Mattheissen State Park testified that there had been several accidents at this particular site. “There are more accidents in this area than other areas of the Park.” The site superintendent further testified, without objection, that today there exists a fence that acts as a barrier to people going over the falls. On the date of the accident, May 29, 1978, there was no fence at that location. The fence presently contains a warning that it is dangerous to walk or swim there. On May 29, 1978, there was no sign as you came down the stairs prohibiting anyone from walking down there. Finally, the superintendent testified that he knew of six previous accidents specifically at this falls area in recent years.

As a result of this fall, the Claimant suffered two compressed vertebral fractures and various other injuries. She was admitted to the hospital where she stayed for six days. Following the summer of 1979, she was again admitted to the hospital. Since January of 1980 and up to the hearing, she was receiving treatment from a chiropractor. The chiropractor testified that Claimant suffered extension misalignments of the lumbar and cervical spine, that she is in pain, is unable to do bending and lifting and will be permanently affected in her ability to be employed because of her injuries. Claimant was forced to leave school in her sophomore year because of her inability to be seated and to attend school on a full-time basis. Her sister and job supervisor testified as to her current limitations.

It is almost axiomatic that the State must exercise reasonable care in establishing, maintaining and supervising its parks. The State has the duty to exercise ordinary care to protect invitees from harm. Furthermore, the State is negligent where it has actual or constructive notice of a dangerous and unusual condition and fails to warn invitees thereof and protect them from harm. (Jodlowski v. State of Illinois, 26 Ill. Ct. Cl. 66.) In the instant case, the record is clear that the State had both constructive and actual knowledge as to the dangerous condition existing at the Cascade Falls in Mattheissen State Park. The record also contained evidence as to the relative ease in which the State could remedy this situation by erecting a fence and posting warning signs. It is the opinion of this Court, therefore, that the State was negligent in its maintenance of this area at the time of this accident. Moreover, the record does not contain evidence of Claimant’s negligence which contributed to her injury.

As a result of the foregoing negligence of the State, Claimant suffered a spinal fracture. Spinal fractures are painful injuries that permanently hamper the employ-ability of those suffering them. There is medical testimony in the record that Claimant has been so hampered. Her inability to complete her high school education was also a serious consequence of the accident. It is the preponderance of the evidence that the Claimant will continue to suffer as a result of the fall both economically and in terms of physical pain during her 60.6 years of life expectancy.

Therefore, the Claimant is hereby awarded the sum of forty thousand ($40,000.00) dollars.


text:
    (No. 80-CC-0012
    Melvin Franks, Claimant, v. The State of Illinois, Respondent.

      Order filed February 8, 1983.

    Melvin Franks, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter coming on to be heard upon the motion of Respondent to dismiss the claim herein, and it appearing to the Court that Claimant has received due notice, and the Court being fully advised in the premises:

Finds that Claimant signed a settlement contract lump sum petition and order in the Illinois Industrial Commission whereby he agreed that the receipt of $17,129.20 was a final and complete settlement of any and all claims as a result of the injury of August 27, 1975, and February 25, 1976, and that Claimant’s complaint seeks an additional $603.99 in back pay arising out of the injury on February 25, 1976, pursuant to the arbitration decision on June 26, 1978, to make the employee whole according to the provisions of Article XXIII of the Collective Bargaining Agreement. The Court further finds that this issue was settled in the case of Benedetto v. State, 32 Ill. Ct. Cl. 300, where the Court stated that the acceptance of a lump sum settlement under section 11 of the Workers’ Compensation Act (Ill. Rev. Stat., ch. 48, par. 138.11) released the State of Illinois from any duty to provide any additional compensation based upon the same accident.

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


author: Holderman, J. Holderman, J.

text:
    (No. 80-CC-0027
    R. D. Lawrence Construction Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 24, 1982.

      Opinion on rehearing filed December 8, 1982.

      Order on motion to clarify filed December 17, 1982.

      Order on motion to withdraw motion for reconsideration filed February 3, 1983.
    Mohan, Alewelt & Prillaman (Fred C. Prillaman, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This cause of action arose out of a contract between Claimant and Respondent, dated July 11, 1977. Claimant, in its complaint, sets forth that as a result of Respondent’s action Claimant incurred additional costs for labor and material put into the project by subcontractors working under Claimant’s supervision, pursuant to Claimant’s general contract.

Claimant contends that the delay caused by Respondent’s action resulted in a higher wage scale being paid to the laborers on the job and higher material costs due to the passage of time.

The original claim was in the amount of $126,010.00. It was agreed by and between the parties hereto that the amount of $39,794.00 is not in dispute and the amount remaining in dispute is $57,204.05. It is noted that the original claim of $126,010.00 has been reduced by Claimant to the sum of $96,998.05.

Claimant has not paid the amount of $57,204.05 to his subcontractors, so this is not out-of-pocket expenses.

It is Respondent’s contention that this claim should be dismissed because the subcontractors had a right to protect their interests by filing a mechanics’ lien and attempting to recover in that manner. It is also Respondent’s contention that Claimant, at this time having not paid this amount to the subcontractors, has not incurred out-of-pocket expenses and is not in a position to recover.

The record is not clear as to whether the amount of $57,204.05 is due entirely to the subcontractors or whether the prime contractor, Claimant, had an interest in the same. If it does have an interest and this cause is dismissed, then the question arises as to what amount, if any, Claimant should receive.

Respondent’s brief cites the case of Bates and Rogers Construction Corporation v. North Shore Sanitary District (1980), 92 Ill. App. 3d 90. The appellate court in that case ruled that in counts of contractor’s complaints against owners for breach of contract, to include subcontractors’ claims is wrong. The court stated that the general rule is that subcontractors cannot recover against the owner in absence of contractual arrangements, and in the absence of any allegation that they are third-party beneficiaries under the principal contract, they are not proper parties to such a suit.

It is clear there is no privity of contract between the Respondent and the subcontractors and it is also clear that the subcontractors had a right to file a mechanics’ lien to protect their interests.

In the negotiating proceedings prior to the filing of the complaint, it was suggested that a change order be issued but this was opposed and rejected by Respondent.

In view of the authority above cited, the Court hereby enters an award in favor of Claimant in the amount of $39,794.00, and dismisses that portion of the complaint in the amount of $57,204.05.

OPINION ON REHEARING

Holderman, J.

This matter comes before the Court upon petition of Claimant for rehearing and Respondent’s objection to said petition.

The Court, having heard oral argument in this cause and being fully advised in the premises, finds:

That Claimant is basing its claim upon a one year’s delay in construction work for Respondent. The undisputed facts appear to bear out Claimant’s claim that for over one year it was precluded from doing the work it had contracted to do for Respondent and that the sole cause of said delay was the fault of Respondent. Claimant bases its alleged claim upon the fact that the year’s delay caused an increase in labor costs and in material costs and that it is entitled to the sum of $57,204.05. The work in question was for the remodelling of a basement, third floor and sixth floor of the State Capitol Building. The evidence shows that the failure to vacate the sixth floor caused a delay of well over one year.

The parties have heretofore stipulated that Claimant is entitled to the sum of $38,794.00.

In the original complaint, Claimant asked for the sum of $126,010.00, which was scaled down to $96,998.05, a reduction of approximately $30,000.00 from the original amount claimed.

Approximately one-half of Claimant’s claim is made on behalf of subcontractors and material suppliers. It appears they also were delayed for about 11 months on the sixth floor remodelling project — all of the delay caused by Respondent. The record strongly supports the position that the subcontractors were required to pay higher labor and material costs due to the State’s delay. Illinois law holds that where proof of a legal wrong is made, there is a presumption of damages, and only the amount thereof is subject to further proof. (15 Illinois Law & Practice, chapter 13, section 231, 529.) This principle applies both to damages paid and unpaid by the injured party.

In this case, most of the damages claimed remain unpaid. Illinois law permits proof of damages to consist of both paid and unpaid bills. The sole issue is whether the bills are reasonable; it is not relevant that they are paid or unpaid. The fact is that all that is required under Illinois law to prove the reasonableness of unpaid bills is that the evidence on point be competent. Hulse v. Midwest Emery Freight System (1973), 12 Ill. App. 3d 316, 319.

In Illinois, a paid bill is prima facie evidence of its being reasonable. Omni Overseas Freighting Co. v. Cardell Insurance Agency (1979), 78 Ill. App. 3d 639.

It is the Court’s opinion that Claimant is entitled to the sum of $57,204.05. An award is hereby made in that amount.

ORDER ON MOTION TO CLARIFY

Holderman, J.

This cause coming on to be heard on the Court’s own motion to clarify our opinion on rehearing dated December 8, 1982;

By said opinion we made an award in the amount of $57,204.05. In doing so it was our intention that said sum be awarded in addition to the $39,794.00 which we had previously awarded the Claimant on February 24, 1982. The total award to the Claimant in the case therefore was intended to be and is $96,998.05, the scaled down amount claimed noted on page one of our opinion of December 8,1982.

By way of clarification, it is hereby ordered that Claimant be, and hereby is, awarded the sum of $96,998.05.

ORDER ON MOTION TO WITHDRAW MOTION FOR CONSIDERATION

Holderman, J.

This matter comes before the Court upon motion of Respondent to withdraw its motion for reconsideration. Respondent’s motion to withdraw sets forth that Claimant has now evidenced that it has paid its subcontractors and therefore the question raised by Respondent in its motion for reconsideration is moot.

Respondent’s motion to withdraw its motion for reconsideration is hereby granted and the Court’s order of December 17,1982, granting an award is hereby confirmed.