author: Frederick, J. Frederick, J.

text:
    (No. 81-CC-1746
    Toledo, Peoria & Western R.R. Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1994.

      Order filed August 17, 1995.

    Kavanagh, Scully, Sudow, White & Frederick, P.C. (Julian Cannell, of counsel), for Claimant.
    Jim Ryan, Attorney General (Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Toledo, Peoria & Western Railroad Company, a corporation, filed its claim in the Court of Claims on February 13, 1981. The complaint, sounding in tort, sought an accounting for rents and profits from the Respondents commercial use of part of Lot J. Lot J is a parcel of land upon which Respondent had obtained an easement from Claimant for highway purposes.

The Claimant filed an amended complaint on October 3, 1984, which additionally prayed for a declaratory judgment that the States interest in Lot J had been extinguished by operation of law. In the alternative, count II prays for damages against Respondent for the wrongful taking of the railroads fee interest in Lot J.

The parties agreed that the common law report of proceedings before the United States District Court, submitted by the Claimant, would be the only evidence considered by the Court of Claims in deciding this case.

The case was originally filed by Claimant in the tenth judicial circuit of the State of Illinois. That cause was dismissed on jurisdictional grounds. The Claimant then filed a civil rights action under title 42 U.S.C. Sec. 1983 against the Illinois Department of Transportation in the United States District Court for the Central District of Illinois. The district court found in favor of Claimant on the issue of abandonment. However, the United States Appellate Court, Seventh Circuit reversed the judgment on the grounds that the district court lacked subject matter jurisdiction over the suit. The Seventh Circuit held that the availability of a remedy in the Illinois Court of Claims satisfied the requirements of the fifth and fourteenth amendments. The Claimant then proceeded in this Court.

Prehminarily, we find that the Illinois Court of Claims does have jurisdiction to decide this case. This Court has found jurisdiction in numerous cases involving declaratory judgments, title to land, and damages related to land. (Ross v. State (1990), 43 Ill. Ct. Cl. 20 (damages related to potential acquisition of land); Gordon v. State (1991), 43 Ill. Ct. Cl. 146 (determination of ownership of property-adverse possession); Bohne v. State (1979), 33 Ill. Ct. Cl. 181 (resale of land after condemnation); Hicks v. State (1978), 32 Ill. Ct. Cl. 529 (reformation of deed); Orr Construction v. State (1975), 30 Ill. Ct. Cl. 266 (declaratory relief).) While the complaint states the Respondent is the Department of Transportation, State of Illinois, the State of IlEnois is the true party in interest as the decision required affects directly the property of the State over which the Court of Claims has exclusive jurisdiction. Sass v. Kramer (1978), 72 Ill. 2d 485. Gordon v. Department of Transportation (1982), 109 Ill. App. 3d 1071.

The Facts

The facts have for the most part been agreed to by the parties. The dispute concerns a piece of land hereinafter referred to as “Lot J.”

Lot J is a 3.38 acre triangular lot fronting on Camp Street in East Peoria, Illinois. In 1956, Claimant conveyed an easement for highway purposes to all of Lot J to the State of Illinois for $6,000. Pursuant to the construction of Interstate Highway 1-74, the eastern tip of the triangular lot was used as road bed for the relocation of Camp Street. At the time the State acquired its easement in Lot J, the lands contour was a steeply sloped hillside. The toe of the slope was adjacent to Camp Street and was supported in part by a concrete retaining waE. Between 1956 and 1963, both the State and the Claimant removed materials from Lot J. The lot’s present topography, which was created by the parties’ removal of materials, is relatively level with an approximate 9% grade running from the toe of the Fondulac Street abutment toward Camp Street.

The Claimant pursued negotiations with the State for the release of the States easement in Lot J beginning in 1963, except for the .25 acre triangle used as a road bed for the relocation of Camp Street. In February, 1965, the State prepared a plat of vacation for part of Lot J which reserved access to the toe of the Fondulac Drive abutment and additional right-of-way along Camp Street. The vacation plat was designated "preliminary” and “proposed for land trade,” and includes 2.05 acres of the original 3.38 acres dedicated to the State. Claimants witnesses testified that the possibility of a land trade for Lot J had been discussed with State personnel. Mr. John Harland, the States district engineer, testified that the preparation of a vacation plat is a preliminary step to determine the boundaries of land which might be vacated. It is not a significant step in the decision of whether to dispose of land. At no time did Mr. Harland recommend that the department dispose of Lot J.

On January 13, 1970, the Claimant wrote the States district engineer inquiring about the possibility of trading railroad lands needed for Route 474 for Lot J. On January 20, 1970, the district engineer responded by letter that the State “will have valuation appraisals prepared and will be in contact with you concerning a possible trade of properties as mentioned in your letter.” On June 9, 1970, the district engineer advised the Claimant that “there is no current basis for disposing of Lot J since the City of East Peoria and the State are now studying several alternate locations for relocation of Main Street, East Peoria.”

On June 30, 1977, the State entered into a rental agreement for part of Lot J with the adjoining motel owner, Best Inns. Under the terms of their agreement, the State received $50 a month and the tenant was authorized to improve the parking lot with gravel and was given access to Camp Street. On January 24, 1980, representatives of the Claimant met with the district engineer in his office. The purpose of the meeting was to discuss lifting of the easement from Lot J. At the meeting, the State agreed to prepare a boundary survey of Lot J, and then to discuss the possibility of releasing the easement once the boundaries had been established. On June 9, 1980, there was a second meeting at Lot J. The district engineer stated at this meeting that it would be necessary to continue an easement along the northern boundary of Lot J for access to the Fondulac Drive abutment and that the State would develop the appraisal of the property and provide a survey so that they could proceed with the vacation. During the month of June, 1980, the State prepared a second vacation plat reserving access to the Fondulac Drive abutment. The State also prepared a legal description of the area to be vacated, which included 2.708 acres of the original 3.38 acres that had been dedicated in 1956. By letter dated July 21, 1980, the Claimant was notified that the amount of the States appraisal for the 2.708 acres to be vacated was $206,400 which was the full market value of the fee interest. The Claimant refused to pay the appraised amount and the litigation began.

The Law

There are two issues before the Court. The first issue is whether the Respondent has abandoned the easement and the second issue is whether the Respondent has misused the easement.

The Respondent takes the position that the State cannot ever abandon an easement under any circumstances. However, Respondent cites the Court to no authority directly on point. The State asks us to liken an abandonment to adverse possession. Adverse possession will not lie against a public entity regarding the dedication of streets and highways for use of the public. (Russell v. City of Lincoln (1902), 200 Ill. 511.) The argument propounded by the State is that, because a party cannot adversely possess the lands of the State because the State cannot be held to watch over all of its property, the State cannot therefore be held to abandon property. We reject this argument and find that under proper circumstances where abandonment is proven as a matter of fact, the State can abandon an easement.

The evidence is clear that the Claimant owned Lot J. The instrument of conveyance granted the State an easement for highway purposes. The easement terminates upon abandonment of such use and the land would revert to Claimant. (Schwabel v. County of DuPage (1981), 101 Ill. App. 3d 553.) Mere non-use of an easement acquired by grant does not of itself alone constitute an abandonment and therefore an extinguishment of the easement. (Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379; Chicago Title & Trust v. Wabash-Randolph Corp. (1943), 384 Ill. 78; Pacemaker Food Stores v. Service Mont. Corp. (1983), 117 Ill. App. 3d 636.) To constitute abandonment of an easement created by a grant, there must be non-use and an intention of the owner of the easement to abandon the easement. (Kurz v. Blume (1950), 407 Ill. 383.) An easement which has lain dormant through non-use without intentional abandonment thereof may be revived at a later date. Finn v. Williams (1944), 376 Ill. 95.

Claimant has the burden of proving that the easement has been abandoned. (Burnette v. DeWitt (1935), 360 Ill. 518.) The Claimant conveyed an easement to the people of the State of Illinois for the purposes of a public highway. The instrument indicates no time limit and is therefore perpetual. As the easement is perpetual, it is not affected by non-use. The intent to abandon must be clearly proven for Claimant to prevail. Lot J has not been used as a public highway since 1956. The Respondent claims the land may be used as a public highway in the future. The Respondent also claims Lot J is needed for lateral support or drainage to an existing highway. The Department of Transportation did prepare a vacation plat proposing to release over two acres of the property but reserving the toe of the slope and access to Camp Street to the State. The State, in 1977, leased a substantial part of Lot J as a motel parking lot. The State considered vacating Lot J when it prepared its vacation plat. However, the district engineer testified that the preparation of a vacation plat is a preliminary step and at no time did he recommend the disposal of Lot J. There was considerable talk about a land trade but all of these discussions were limited to possibilities.

The Court of Claims has had occasion to determine if an easement for highway purposes has been abandoned by the State. (Sass v. State (1984), 36 Ill. Ct. Cl. 111.) In that case, a highway easement was obtained in 1932. Subsequent to 1957, the highway was moved and the easement at issue was no longer used or necessary. In 1974, the plaintiff sought to acquire the States easement but a negotiated settlement could not be reached. A bill was passed in the legislature to release the States easement upon payment by plaintiff of the fair appraised value of the States interest. Plaintiff refused to pay the fair appraised value and he filed suit to have the easement declared abandoned. This court, citing Respondents brief with approval, denied the claim because:

“Abandonment which may also serve to extinguish a written easement implies an intentional relinquishment of ownership, possession or control of the property without regard to future possession. 1 G.J.S. Abandonment, Section 1. Thus there are two requirements to a finding of abandonment: an intent and an external act. Mere non-use of the property is not in itself sufficient to prove abandonment. The question of abandonment is one of intent to be determined from the evidence and there is no abandonment unless the, premises were left with an intention of not again resuming possession. (Burns v. Curran (1916), 275 Ill. 448.) The record clearly indicates that the State of Illinois had no intention to abandon its rights and had not abandoned or released its rights to this easement. Thus one necessary prerequisite to abandonment was lacking.” 36 Ill. Ct. Cl. at 118.

The Court adopted the Department of Transportations position that the State had a right of way for the use of the property for highway purposes until that right was released as it was possible that at some future date, it would be used.

From the evidence in the present case and relying on Sass v. State, supra, we cannot say that the Claimant has proven by a preponderance of the evidence that the Respondent had the intent to abandon the easement. In the present case, the vacation plat preparation was preliminary and not binding, trade talks were mere possibilities, and clearly less evidence of intent than the bill passed by the legislature in Sass, supra. Additionally, the vacation plat did not give up or release the entire easement. We must therefore decline to declare that the Respondent has abandoned the easement and we do find that the Respondent did not abandon the easement.

The second issue is whether the State has misused the easement and therefore is liable to the Claimant for money damages. The use to which an easement is devoted or for which it is granted determines its character, and its owners’ rights are paramount to the extent for which it is necessary to carry out the purpose of the ease-' ment. (Farmers Grain and Supply Co. of Warsaw v. Toledo P. & W. R.R. (1942), 316 Ill. App. 116.) The reasonableness of an easement’s use is a question of fact to be determined from the evidence. (Ogelby v. Donaldson's Floors, Inc. (1958), 13 Ill. 2d 305.) Title to an easement in the case of a roadway over the land of another carries with it the right to do whatever is necessary for the reasonable use of the way for the purpose for which it was acquired. (Sell v. Finke (1920), 295 Ill. 470; Keessen v. Zarattini (1969), 119 Ill. App. 2d 284.) An easement for use as a right of way cannot be enlarged or extended by unauthorized acts. Tripplett v. Beackman (1976), 40 Ill. App. 3d 379; Rinderer v. Keeven (1980), 90 Ill. App. 3d 34.

In this case, it is without question that tire easement was for highway purposes. There may be instances where parking on an easement is an allowable use. (Delgado v. Wilson (1989), 178 Ill. App. 3d 634.) However, the State, in violation of the terms of the easement in this case, leased part of Lot J to a neighboring motel for a parking lot. We find that such lease agreement was not an allowable use for this easement. If an easement is limited in purpose, the owner of the property is entitled to damages where the easement holder exceeds the purpose of the easement. (LeClerg v. Zaia (1975), 28 Ill. App. 3d 738.) The Respondents leasing part of Lot J for a parking lot to an adjacent land owner exceeded the purpose of the easement and the State is liable to the Claimant for the rents received.

Beginning in July of 1977, the Respondent leased part of Lot J to the Best Inn Motel on a month-to-month basis at $50 per month until a time between April 29, 1981, and June 6, 1983. The rents collected amount to between $2,300 and $3,550. The railroad is entitled to an accounting of the rents to determine the actual amount collected by the State. Upon a determination of the amount of rents collected, that amount will be ordered paid to Claimant as and for its damages.

For the foregoing reasons, it is the order of the Court:

A. That Claimants request for declaratory relief is denied as the State did not abandon its easement in Lot J.

B. That the Claimant has failed to prove by a preponderance of the evidence that the State abandoned Lot J.

C. That Claimant is entitled to an accounting of the actual amount of rents collected by the State from Best Inns for the rent of part of Lot J as a parldng lot.

D. That the cause is remanded to tire active docket of the Commissioner assigned to the case to determine the amount of rents collected by the State for Lot J and to report that amount to the Court.

E. That upon the determination of actual rents collected that amount will be awarded to Claimant as and for its damages for the misuse of the easement.

F. That all other or further damages or relief requested by Claimant is denied.

ORDER

Frederick, J.

This cause comes before the Court on the Courts own motion, and the Court being fully advised in the premises, Wherefore, the Court finds:

1. That the Claimant, Toledo, Peoria & Western Railroad Company, no longer exists.

2. That its successor in interest apparently is the Atchison Topeka and Santa Fe Railway Company.

3. That no entry of appearance has been filed on behalf of the successor.

4. That there has been no activity in this cause for a long period except for a copy of a letter to the Commissioner being filed. The filing was on July 20,1995.

5. The Court may dismiss a case for want of prosecution where the Court finds the Claimant has not made a good faith effort to proceed.

6. This is a 1981 case.

7. That Claimant has failed to make a good faith effort to prosecute its claim.

Therefore, this cause is dismissed for want of prosecution.


source: Caselaw Access Project

author: Patchett, J. Patchett, J.

license: Public Domain

text:
    (No. 81-CC-1930
    Richard Toth, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 19, 1995.

      Order on petition for rehearing filed July 17, 1995.

    Richard Toth, pro se, for Claimant.
    Jim Ryan, Attorney General (John McPhee, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim was filed as a result of a fall involving Mr. Toth. Mr. Toth was an inmate at the Menard Correctional Center. On June 17, 1980, he was assigned to wash windows at the south cellblock. Mr. Toth was issued a safety belt.

Mr. Toth was the only witness who testified in person. His testimony established, without contradiction, that the safety belt issued to him broke, causing him to fall 30 to 40 feet. He indicated that the belt was hanging in two pieces still attached to the bars after he fell. The Claimant did not pay for any of his medical expenses. He is seeking compensation for pain and suffering. He wore a back brace for over a year after the incident and a body cast for a couple of months after the incident.

Mr. Toth testified that the safety belt was worn and cracked. After he began using the safety belt to wash the windows, it broke and he fell. At the hearing of this case, no one appeared on behalf of the State. The Respondent contacted the Commissioner of this Court at 4:00 p.m. on the day before the hearing and indicated that he did not have sufficient time to prepare for the hearing. The Commissioner never received a copy of the purported motion. The motion to continue was denied, and the assistant attorney general was informed that the hearing would proceed. It should be noted for the record that this hearing was scheduled for April 1, 1994, involving an incident which occurred on June 17, 1980, and a claim which was filed on March 3,1981.

. The evidence established that Mr. Toth received a fracture of the third lumbar vertebra, the lateral cortex of the tarsal bone on his left foot, and the first metatarsal on his right foot as a result of the fall. He was treated at Memorial Hospital in Chester and was released on June 23,1980.

The Respondent owes a duty to inmates of its penal institutions to provide them with safe working conditions to perform their assigned work. The State further has a duty to provide inmates with proper safety equipment to complete their assigned duties. Jones v. State (1993), 45 Ill. Ct. Cl. 90; Branch v. State (1993), 45 Ill. Ct. Cl. 102.

The record before us clearly establishes that the State was negligent because it failed to provide Mr. Toth with either safe working conditions or safe equipment. Therefore, we find liability.

Mr. Toth testified as to his continued pain and suffering. It is extremely difficult for this Court to assign an adequate award based on the record before us. However, since the testimony of Mr. Toth as to his pain and suffering and the restrictions on his activities he has encountered since the accident is uncontradicted, we will issue an award. We award Mr. Toth the sum of $30,000 as compensation for his injuries.

ORDER

Patchett, J.

The Respondent has filed a petition for rehearing. The assistant attorney general has included many interesting facts which would have been relevant if they had been presented at the hearing.

This case was filed in 1981. It was set for hearing on April 1, 1994. On March 31, 1994, at approximately 4:00 p.m., the assistant attorney general contacted the Commissioner and indicated that he had filed a motion to continue the hearing because he was recently assigned the case and did not have sufficient time to prepare for the hearing. The Commissioner had not received a copy of the motion to continue. The Commissioner denied the Respondents request to continue the hearing and informed the assistant attorney general that the hearing would proceed. The assistant attorney general did not appear for the hearing. Therefore, all of the facts Usted in the petition for rehearing were not before this Court in a timely manner. The petition for rehearing is denied.


author: JANN, J. JANN, J.

text:
    (No. 82-CC-0477
    Carol Smart, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 14, 1995.

      Opinion filed February 22, 1996.

    SCHOENFIELD & SWARTZMAN (RlCK SCHOENFIELD, of counsel), for Claimant.
    Jim Ryan, Attorney General (Iain D. Johnston, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This cause comes on to be heard on the parties’ cross motions for summary judgment. Both parties have submitted briefs and oral arguments were heard by the Court.

Facts

Claimant, Carol Smart, was charged with murder in the shooting deaths of his mother and father in the Circuit Court of Christian County, Illinois in 1958. A jury found Smart unfit to stand trial on criminal charges by reason of “feeblemindedness.” Pursuant to Ill. Rev. Stat. 1957, ch. 38, par. 592, the court ruled that Smart was “legally insane by reason of mental retardation or feeble-mindedness at the time of the impaneling of this jury.” The court ordered Smart confined by the Department of Public Welfare, predecessor of the Department of Mental Health and Developmental Disabilities (hereinafter DMHDD). Smart was to be confined until he had “entirely and permanently recovered from his insanity.” It was further ordered that if Smart recovered or was due to be released by due process of law, he was to be transferred to the custody of the sheriff of Christian County for disposition of the pending criminal charges.

Claimant was subsequently held in the custody of DMHDD until September 16, 1980, when all pending charges against him were dismissed with leave to reinstate and Claimant was released. Claimant contends that he was falsely imprisoned during four specific periods between 1974 and 1980 and that damages result from said false imprisonments. Respondent contends that Claimant was held pursuant to court orders and that DMHDD cannot be held hable for false imprisonment as a matter of law. We shall discuss each time period in question separately.

I. July 31,1974, to November 4,1975

On July 31, 1974, the Circuit Court of Lee County ruled that Smart was competent to manage his person and estate and ordered him restored to legal competency. Claimant had been confined at the Dixon Development Center (hereinafter Dixon) since October 10, 1968. David Edelson was superintendent of Dixon from July, 1962 until October, 1978. The record indicates Mr. Edelson received notice of the courts order. Smart was not transferred to the sheriff of Christian County until more than 15 months had elapsed.

On August 5, 1975, an attorney for DMHDD wrote a letter to the assistant state’s attorney of Christian County and copied Superintendent Edelson advising that action be taken to make a determination as to Smart’s fitness to stand trial or that the pending criminal charges be dropped and civil commitment proceedings begun. These actions were advised to avoid civil rights violations as adjudicated in Jackson v. Indiana (1972), 406 U.S. 715. The U.S. Supreme Court held in Jackson that “a person committed because of their unfitness to stand trial cannot be held more than a reasonable time to determine if they will have the capacity in the foreseeable future to stand trial. If this is not the case the state must either institute civil commitment proceedings or release defendant.”

The letter further stated that the staff at Dixon behoved Smart had “maximized his treatment within the institutional setting and that treatment is now more appropriate in a less restrictive environment * * k”

On October 14, 1975, the same DMHDD attorney wrote again to the assistant state’s attorney, copying Superintendent Edelson, reiterating the DMHDD s request that action be taken by the state’s attorney’s office.

Smart continued in custody at Dixon until November 4, 1975, when he was produced in Circuit Court of Christian County pursuant to a writ of habeas coipus directed to Superintendent Edelson. Smart was transferred to the custody of the sheriff of Christian County relieving DMHDD of custody and responsibility at that time.

Claimant asserts that he was falsely imprisoned as the 1958 court order constituted only a criminal commitment, as he was unfit to stand trial and charges were still pending against him. Respondent argues that the 1958 order was both civil and criminal, as Ill. Rev. Stat. ch. 38, section 592 read, in pertinent part, “if said jury so impaneled by their verdict determined that said person was at the time of impaneling * * * either insane or feeble minded (emphasis added) it shall be the duty of the Department of Public Welfare to keep safely the person committed in the institution as directed by the Court, until he or she shall have fully and permanently recovered from insanity.” Ill. Rev. Stat. 1957, ch. 9B4, par. 1 — 1 et seq., now was the civil commitment statute extant in 1958 as part of the Illinois Mental Health Code.

Section 592 was repealed in 1965 and was replaced by article 104 of Illinois’ new Criminal Code. That article provided, in relevant part, as follows:

“§104 — 1. Definition.
For the purpose of this article, ‘incompetent’ means a person charged with an offense who is unable because of a physical or mental condition:
(a) To understand the nature and purpose of the proceedings against him; or
(b) To assist in his defense;
8 8 8
§104 — 2. Proceedings to Determine Competency.
(a) If before a trial * * 5 the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall impanel a jury to determine the defendant’s competency * * *.
(f) If the defendant is found to be incompetent he shall be committed or remain subject to the further order of the court in accordance with Section 104 — 3.
# # #
§104 — 3. Commitment of Incompetent.
S 3 «
(b) A person who is found to be incompetent because of a mental condition shall be committed to the Department of Mental Health during the continuance of that condition.”

Sections 104 — -1 through 104 — 3 were repealed as of January 1, 1973, and replaced by sections 1005 — 2—1 et seq. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — -2 et seq.) Those sections defined unfitness in the same terms as the 1965 Code. With regard to defendants who were to be unfit to stand trial, section 1005 — 2—2 provided, in relevant part, that:

“(a) If the defendant is found unfit to stand triale * the court shall remand the defendant to a hospital, as defined by the Mental Health Code of 1967, and shall order that a hearing be conducted in accordance with the procedures, and within the time periods specified in such Act. The disposition of defendant pursuant to such hearing, and the admission, detention, care, treatment and discharge or any such defendant found to be in need of mental treatment, shall be determined in accordance with such act. If the defendant is not ordered hospitalized in such hearing, the Department of Mental Health shall petition the trial court to release the defendant on bail or recognizance, under such conditions as the court finds appropriate, which may include, but need not be limited to requiring the defendant to submit to or to secure treatment for his mental condition.
(b) A defendant hospitalized under this Section shall be returned to the court not more than 90 days after the court’s original finding of unfitness, and each 12 months thereafter. At such re-examination the court may proceed, find, and order as in the first instance under paragraph (a) of this Section. If the court finds that defendant continues to be unfit to stand trial “ * " but that he no longer requires hospitalization, the defendant shall be released under paragraph (a) of this Section on bail or recognizance.”

The Mental Health Code hearing referred to in section 1005 — 2—2(a) was required to be held within five court days, after admission of the subject to the hospital, or the courts receipt of the petition, whichever was earlier. (Ill. Rev. Stat. 1973, ch. 91V6, par. 8 — 8.) The standard for commitment under the Mental Health Code was dangerousness to ones self or to others, and excluded mental retardation. Ill. Rev. Stat. 1973, ch. 9114, par. 1— 11.

Based upon the above legislative history, we find Claimant is correct in asserting the original and subsequent commitments were criminal in nature and did not constitute civil commitment for the period ending November 4, 1975. The letters to the Christian County states attorney from the DMHDD lawyer also belie Respondents argument that Smarts commitment was civil as well as criminal. Said letters request a determination of Smarts competency to stand trial or that the charges be dropped and Smart be committed civilly under the Mental Health Code.

False imprisonment is an unlawful restraint of an individuals personal liberty or freedom of locomotion. In this instance, Smart was held for over one year after being declared competent without hearing in accordance with DMHDD s own rules or the 90 day period required by section 1005 — 2—1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1) applicable at the time. The State cannot rely upon arcane language from the 1958 statute which was repealed in 1965. We find Smart was falsely imprisoned from October 31, 1974, to November 4, 1975, and grant his motion for summary judgment for said period for false imprisonment and deny Respondents cross-motion thereon.

Claimant asserts a due process violation pursuant to Jackson v. Indiana (1972), 406 U.S. 715. Jackson addressed both equal protection and due process under the Federal constitution. Claimant argues claims based on constitutional rights are tort claims, and, as such are properly brought before this Court under section 8(d) of the Court of Claims Act. (705 ILCS 505/8(d).) Respondent argues that this Court lacks jurisdiction because a cause of action alleging violation of due process can be brought in the United States District Court, a court of general jurisdiction.

A review of case law indicates that Respondents position is correct. Issues of constitutionality are outside the jurisdiction of the Court of Claims. (Reyes v. State (1979), 35 Ill. Ct. Cl. 498; Winzeler Trucking Co. v. State (1978), 32 Ill. Ct. Cl. 191.) Both cases dealt with alleged violations of equal protection and due process which this Court is not given exclusive authority to hear. Claimant has already sought relief on these issues in Federal district court. Additionally, the issue of false imprisonment appropriately before this Court by its very definition requires a determination as to a violation of due process under Illinois law.

We hereby deny Claimants motion for summary judgment as to jurisdiction on the constitutional due process claims for all periods and grant Respondents motion for summary judgment thereon.

II. December 29,1975, through October 27,1976

On December 29, 1975, the Circuit Court of Christian County held a competency hearing and found Carol Smart unfit to stand trial. The order provided that Smart "be remanded to a hospital as defined in the Mental Health Code and specifically to the Dixon Developmental Center where a hearing shall be held in accordance with the provisions of the Mental Health Code and within the time specifications.” Claimant was not given a hearing pursuant to the section 1005 — 2—2(a) of the Mental Health Code. As discussed in Part I of this opinion, a hearing was to be held within five court days after admission of the subject to the hospital, or the courts receipt of the petition, whichever was earlier. The standard for civil commitment under the Mental Health Code was dangerousness to ones self or to others and excluded mental retardation. (Ill. Rev. Stat. 1973, ch. 9114, par. 1 — 11.) Section 1005 — 2—2(a) further provided, "If the defendant is not ordered hospitalized in such hearing, the Department of Mental Health shall petition the trial court to release the defendant on bail or recognizance * *

Respondent argues that its failure to hold the hearing was of no consequence as Smart was subsequently returned to DMHDD custody at his bond hearing on October 27, 1976, and that even if a hearing had been held, the DMHDD could not have released Smart from custody.

We disagree with Respondents contentions. The language of the Christian County Circuit Court order and section 1005 — 2—2(a) is clear that Smart was to be given a hearing in a timely manner. A determination was to be made at that time as to whether Smart should have been hospitalized. If he was not ordered hospitalized, DMHDD should have petitioned the trial court for Smarts release on bail or recognizance.

Smart was entitled to a hearing to determine whether he should have been hospitalized. We cannot speculate as to the result of such a hearing and thereby cannot conclude that the Respondent should have petitioned for his release or bond. When a custodian continues to hold an inmate in custody in violation of the custodians obligation to bring the inmate to court, the custodian is liable for wrongfully detaining the inmate. (Fulford, v. O’Connor (1954), 3 Ill.2d 490, 500; Llaguno v. Mingey (7th Cir. 1985), 763 F.2d 1360; Gerstein v. Pugh (1975), 420 U.S. 103.) We find Respondents failure to give Smart a hearing amounted to false imprisonment for the period of five court days after December 29, 1975, to October 27, 1976. Claimant’s motion for summary judgment on false imprisonment during this period is granted and Respondent’s cross-motion for summary judgment thereon is denied.

III. November 10,1978, to September 16,1980

A bond hearing was held in Christian County on October 27, 1976. The court entered an order on November 10, 1976, which provided in pertinent part:

“Defendant is no longer a person in need of hospitalization, as defined by Ch. 91-1/2, The Mental Health Code
It is hereby ordered:
That the Defendant is released on his own recognizance, subject to the following terms and conditions:
(a) That the Defendant is to remain under the supervision of the DMHDD;
(b) That such supervision is to be at the Dixon State Hospital, or such facility associated therewith as DMHDD may direct;
(c) That the Defendant is to be placed in such rehabilitation program as may be directed by DMHDD; 5 e * any material change in programs established by DMHDD, and any material change in condition of the Defendant be reported forthwith to this court.”

Claimant was held by DMHDD, primarily at Dixon until his discharge on September 16, 1980. From November 2, 1977, to approximately March 10, 1978, Smart resided at a facility called the Village Inn which was a more permissive living facility than Dixon.

Smart argues that he was again falsely imprisoned as no hearing was held by DMHDD for civil commitment pursuant to section 1005 — 2—2(a), (b) of the Criminal Code (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—2(a)(b)) and the Mental Health Code of Illinois. He asserts that the conditions of bond resulted in a conundrum. In essence, the conditions of bond resulted in Smart’s continued confinement at Dixon.

Respondent asserts that Smart was held pursuant to a viable court order which required DMHDD to supervise Smart at Dixon or some other DMHDD facility. Respondent further asserts that Claimants remedy lies in appeal of the Christian County Circuit Courts order, not with DMHDD which merely followed its order.

Claimant argues that People v. Ealy (1977), 49 Ill. App. 3d 922, 365 N.E.2d 149, 7 Ill. Dec. 864, is determinative of the issues herein. Ealy was charged with a felony robbery and released on a recognizance bond. Ealy was evaluated by Cook County court-appointed psychiatrists and a hearing was held to determine his fitness to stand trial. A criminal division jury found Ealy incompetent to stand trial. Ealy was then ordered transferred to DMHDD for a determination of whether he met the criteria for civil commitment. A DMHDD hearing was held in Cook County Circuit Court, County Division, wherein defendant Ealy was found to be “not in need of mental treatment.” (Ealy, 49 Ill. App. 3d at 927.) Thereafter DMHDD filed a petition in the criminal proceeding for defendants release on bail or recognizance. Instead, defendants motion for a second psychiatric examination to determine fitness to stand trial was allowed. Defendant was again adjudged unfit to stand trial. The criminal court then transferred Claimant to DMHDD for a second commitment hearing. Ealy was again found to be “not in need of mental treatment.” (Ealy, 49 Ill. App. 3d at 927.) DMHDD again petitioned for Ealys release. A new hearing to determine fitness to stand trial was held. Ealy was granted bond at $50,000, a bond defendant could not meet, based upon the courts belief that the defendant was a hazard to society and should be detained until DMHDD could rehabilitate him. Ealy demanded another hearing on fitness to stand trial and, specifically, whether he would ever become fit to stand trial. A hearing was subsequently held which determined Ealy would not become fit to stand trial in the foreseeable future. The trial judge denied Ealys motion to dismiss the charges against him and his request for release from DMHDD custody. Ealy was ordered transported to a DMHDD facility for hospitalization during the pendency of his appeal by order of the court.

On appeal by defendant Ealy and DMHDD, the appellate court ordered the trial court to vacate the order transferring Ealy to DMHDD, and remanded the case for a further bond hearing.

Ealy is not directly determinative of Smarts position during the period of November 10, 1978, to September 16,1980. No hearing was held to determine Smarts ability to stand trial in the foreseeable future during the period in question as in Ealy. Further, Claimants argument that DMHDD had absolute authority to release Smart under the bond is not proved in the pleadings and exhibits relied upon by Claimant. At the very least, DMHDD was bound by the circuit court order to advise the court of any change in Smarts treatment or condition. The plain language of the order indicates Respondent had no direct authority to release Smart without the courts permission.

DMHDD was in a similar position in Ealy and the appellate court recognized that DMHDD could not refuse to accept the defendant without risking contempt proceedings.

The Ealy court found that tire trial court had acted improperly in directing Ealys hospitalization at DMHDD and granted DMHDD s motions for appeal of the circuit court order. The court commented that:

“* « • there is nothing in either the UCC or the MHG permitting unfit defendants to be housed in Department facilities when the Department has already determined that no treatment can be offered to an individual found not in need of mental treatment. In fact, once an individual is no longer in need of hospitalization, the superintendent of the Department must grant an absolute discharge. (Ill. Rev. Stat. 1975, ch. 91-1/2, par. 10 — 4).”

However, the court did not state such discharge could be made in contravention of a court order.

The Claimant herein did not request clarification or seek appeal of the offending Christian County Circuit Court order. Had he done so, our task would be far simpler. The order acknowledges that Smart no longer needed hospitalization but specifically required him to be supervised at a DMHDD facility or a facility associated therewith. It further stated that Smart “was to be placed in such rehabilitation programs as may be directed by the Department.”

As no definitive interpretation of the above order is available to us, we must deny Claimants motion for summary judgment on false imprisonment during the period of November 10, 1978, to September 16, 1980, and grant Respondents cross-motion thereon. Claimants remedy was appeal or modification of the circuit court order.

IV. December 29,1979, to September 16,1980

Smart argues he was falsely imprisoned from December 29, 1979, to September 16, 1980, due to the enactment of section 104 — 28(a) of the Criminal Code (Ill. Rev. Stat. 1979, eh. 38, par. 104 — 28(a)) which became effective December 28, 1979. The statute provided that criminal defendants found unfit to stand trial prior to the date of the statute could not be held in DMHDD custody longer than the maximum time they would have served if they had been convicted before becoming eligible for parole, less credit for good time. Pursuant to section 1003— 3 — 4(a) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 3—4(a),) the longest term Smart would have served was 20 years. By the effective date of the statute, Smart was in custody for in excess of 20 years.

Respondent claims that holding Smart for nine months after the statute became effective did not constitute false imprisonment because the court, not DMHDD, is responsible for a defendants release. We find this argument lacking merit. Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—2(c), enacted prior to this statute, provided that if a defendant was confined in a hospital for a period equal to the maximum sentence “the court shall order the charge or charges dismissed on motion of the defendant, his guardian or the Director of DMHDD.” Also, Respondent had been responsible for petitioning the circuit court for hearings on fitness to stand trial pursuant to section 1005 — 2—2(a) of the Criminal Code. (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—2(a).) It appears clear that DMHDD as supervisor of Smart was responsible for petitioning the court for Smarts release.

We hereby grant Smarts motion for summary judgment on false imprisonment for the period of December 28,1979, through September 16,1980.

Claimants final motion for summary judgment is for an alleged violation of Smart's right to treatment while in custody at Dixon. We find there is insufficient evidence in the pleadings to support Claimant’s motion and it is hereby denied.

It is hereby ordered that this cause shall be remanded for hearing on:

(1) Damages on false imprisonment during periods I, II and IV;

(2) The claim of denial of right to treatment.

OPINION

JANN, J.

This matter is before the Court upon the joint stipulation of the parties hereto. This claim sounds in tort and is before us pursuant to section 8(d) of the Court of Claims Act. 705 ILCS 505/8(d).

That the Claimant was charged with murdering his parents in 1958. Claimant was found not mentally fit to stand trial. Therefore, Claimant was admitted to the Department of Public Welfare, which became the Department of Mental Health and Developmental Disabilities (DMHDD). Claimant was held by DMHDD until his release in 1980. Claimant brought this action for false imprisonment for periods of time he was held by DMHDD between the years 1975 and 1980. On April 14, 1995, this Court granted summary judgment as to parts of Claimants claim.

We note that the parties hereto have agreed to a settlement of these claims, and that Respondent has agreed to the entry of an award in favor of Claimant in the amount of $65,000.

Based on the foregoing, Claimant Carol Smart is hereby awarded the sum of $65,000 in full settlement and final satisfaction of the claim herein.


author: Raucci, J.

text:
    (No. 83-CC-0539
    Ruth Ellis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 15, 1996.

    Cornfield & Feldman (Gilbert A. Cornfield, of counsel), for Claimant.
    Jim Ryan, Attorney General (Mark T. Dunn, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This claim was brought by Ruth Ellis, a tenured professor at Northeastern Illinois University (NEIU). Dr. Ellis began her association with Northeastern Illinois University in 1961 when the institution was known as Chicago Teacher’s College North. Dr. Ellis received her Ph.D. from Stanford University and in 1975 was a member of the Psychology Department at NEIU.

It is the claim of Dr. Ellis that the university discharged her without giving her process to which she was entitled under her tenure contract and in violation of section 8(3) of the Board of Governors Act. (110 ILCS 605/8(3).) The Respondent had previously filed a motion to dismiss this matter, and this Court by order executed May 25, 1989, remanded for a factual hearing on the following issues:

(a) Did the Claimant resign or was she discharged by the university?

(b) If she was discharged, was it for good cause, and was she afforded her procedural rights during the process?

We find that Dr. Ellis, in fact, resigned her position in September of 1977.

Between 1953 and 1958, Claimant held several teaching positions in Scandinavia. In 1961, she was hired by Northeastern Illinois University and assigned to the psychology department. In 1974, Claimant made a request through NEIU for permission to return to Scandinavia in 1975 to teach a seminar. Because of her background, her knowledge of the culture and language, the university agreed to offer a graduate class in human development to be taught by Dr. Ellis in Scandinavia. Eventually, eleven American students enrolled in the class which was to begin in January of 1975, and end on June 30, 1975. Dr. Ellis left for Scandinavia some time before the beginning of classes in January of 1975. In March of 1975, she was diagnosed with having high blood pressure by a physician in Sweden. In June of that year, the course ended and the normal progression of events would have been for Dr. Ellis to return to the United States prior to the next semester in September. However, Dr. Ellis decided to stay in Sweden under the care and direction of her doctor. In January of 1976, while she was improving, her doctor indicated that she needed five to six more months of rest. Dr. Ellis used accumulated sick days for the period between September of 1975 and February of 1976. Her sick days ended as of February 2,1976.

In August of 1975, the Claimant had called an employee of Northeastern Illinois University, Ms. Diane Hirsch, to acquire information on her options. At this point it was apparent that Dr. Ellis was not sure when she would be returning. Hirsch wrote to Ms. Ellis explaining both the conditions for sick leave.and informing Dr. Ellis of how to apply for disability benefits. In September of 1975, Hirsch wrote Dr. Ellis to inform her that she had been placed on sick leave. Hirsch advised the Claimant of her sick leave situation and indicated that she should contact the personnel office well in advance of any disability claims. It was not until February of 1976 that Dr. Ellis actually applied for disability by returning the forms to Hirsch. Because of the delay, she had no choice but to seek a leave of absence without pay in February of 1976. Her request for disability benefits was never approved. Between February of 1976 to November of 1976, Dr. Ellis was granted her first leave without pay from the university. It is important to note that in August of 1975, Dr. Ellis’ physician in Scandinavia reported that her condition had improved and her blood pressure was just slightly above normal. By November of 1976, her blood pressure was stabilized at normal and no further treatment was required. At that time the doctor indicated that she was ready to resume full-time employment. In spite of that fact, in November of 1976, another leave of absence was sought and granted without pay to run from November of 1976 until September of 1977.

The application for disability, which Dr. Ellis had filed in February of 1976, was rejected in April of that year, and she was informed that the Illinois Pension Code requirements had not been met. She was also sent a brochure which explained the options available to her. In May of 1976, Ms. Hirsch, by letter, informed Claimant that she should personally contact the retirement office and also give her specific information. In June of 1976, the State University Retirement System wrote the Claim - ant explaining its retirement benefits available. She eventually received that letter in August, 1976. In July of 1976, another employee of the university, Ms. Dorothy Bacon, wrote on behalf of the department asking the Claimant to give the department her plans as soon as possible so that the university could make whatever plans were necessary. In August of 1976, the Claimant’s actions indicate an unwillingness to return to the United States. It is apparent that she preferred the lifestyle in Scandinavia over that of the Chicagoland area. In September of 1976, Dr. Ellis admitted that she was unsure of what her course of action would be. By October of 1976, the State Universities Retirement Board took the position that the high blood pressure alone was not sufficient to disable Claimant. It concluded the high blood pressure, if it existed at that time, could be controlled by medication.

Even though her blood pressure had returned to somewhat normal in the fall of 1976, it was not until March of 1977 that the Claimant had indicated an interest in returning to teach. At that time, her correspondence indicated that she would return in the fall when her second leave was up. However, subsequent to that letter she believed her condition regressed and she decided to request for yet a third leave without pay. Not surprisingly, this third leave without pay was denied. She was informed of the decision on September 14, 1977 and she was requested to quickly notify the Department of her intentions. The new semester was to begin shortly. At that time there was a new provost at the university, Mr. John Cownie, and he specifically asked Claimant to inform him of what her intentions were regarding the next semester. On September 20, 1977, the Claimant talked to Hirsch again over the phone. Hirsch memorialized that conversation and that documentation was submitted as evidence. During the course of the conversation, Claimant makes reference to complicated personal reasons why she did not want to return to the United States, only one of which was her health. Faced with the prospect of returning to the United States, Claimant indicated to Hirsch that it was her intention to resign and to follow up on a request to become a professor emeritus. On September 21, 1977, Claimant wrote a letter to the provost. Specifically, she wrote, “1 am taking an early retirement effective as of now and I am requesting that the papers necessary to effectuate this be sent to me as soon as is convenient.” In a subsequent paragraph the Claimant indicates that she believed she was entitled to the status of professor emeritus of psychology. She goes on to relate why it is that she is entitled to this position. She further indicates a willingness to return to the university in some capacity to teach. At that time the Claimant was in limbo in terms of her relationship with the university. She was not accruing any service time or benefits and she was not being paid. After that letter, the provost waited approximately three months and finally, on December 8, 1977, he wrote her a letter accepting the resignation as of September 21, 1977. He also indicated that he would pass on her application for emeritus status to the department. In July of 1978, some seven months later, the Claimant wrote a letter to the provost again requesting a clarification of her status. She was informed later that month that her status was that of a retired professor. It was not until 1979 or 1980 that Claimant finally returned to the United States.

The factual scenario which emerges from this record involves a woman with a clear enjoyment of the lifestyle that she found in Scandinavia as compared with that available with teaching at Northeastern Illinois University. She was torn between her love for that lifestyle and her need to return to the university to teach. Because of complicating factors, including her health, she chose the former instead of the latter. Her health problems, however, were not serious enough to justify a disability claim or, if in fact they were, she did not perfect that claim. It was her responsibility to do so and not the employees of the university. She was continually and repeatedly reminded by people at the university of the requirements for the disability claim, and additionally, the need for the university to know her intentions. It was through no fault of the university employees that she placed herself in a comer from which she could not escape. The facts of this case lead to the inescapable conclusion that the Claimant was not discharged, but simply resigned. Additionally, the claim that her resignation was only conditioned upon her status as a professor emeritus is rejected. Neither her letter of resignation nor her conversations with the employees of the university reflect any conditions to her action.

It is therefore ordered, adjudged and decreed that this claim is dismissed and forever barred.


author: JANN, J.

text:
    (No. 83-CC-2044
    Clay M. Hambrick, as Administrator of the Estate of Delores A. Hambrick, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 28, 1995.

    John P. Gibbons, for Claimant.
    Jim Ryan, Attorney General (Claire Taylor, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant Clay M. Hambrick, administrator of the estate of Delores A. Hambrick, deceased, brings this action for compensatory damages pursuant to section 8 of the Illinois Court of Claims Act. (705 ILCS 505/8.) Claimant asserts that his late wife, Delores Hambrick, died as a direct and proximate result of negligence committed by the State of Illinois on the interchange of Illinois Route 203 and Interstate 270 in Madison County, Illinois.

At approximately 12:30 a.m., March 29,1981, Claimant was driving a 1981 Honda 1100 motorcycle in a northerly direction on Illinois Route 203 with his wife, the decedent, riding on the back of the motorcycle. They were returning tó their home in Ferguson, Missouri, from a gathering of friends in Granite City, Illinois. Claimant turned off Illinois Route 203 onto the interchange to proceed westbound on Interstate 270. He and the decedent were unfamiliar with this particular stretch of road, which was illuminated with 150 watt mercury vapor lamps, located east of the point where the interchange ramp feeds into a collector-distributor lane running parallel to the westbound lanes of Interstate 270. There also were lights located on the south side of the eastbound lanes of Interstate 270 parallel to the collector-distributor lane. The lights were operating at the time.

Claimant proceeded onto the collector-distributor lane which is bordered on the left by a median approximately eight inches high and two feet wide that bears no striping. Claimant looked behind him to his left for approaching vehicles. Seeing none, he proceeded to merge onto the westbound lanes of Interstate 270 at about 55 miles per hour, striking the median. As a result, the motorcycle became airborne, landing in the westbound lanes of Interstate 270 and sliding across these lanes. The decedent was thrown from the vehicle and suffered severe head injuries.

Both Claimant and the decedent were taken to St. Elizabeth Medical Center in Granite City, Illinois. The decedent was transferred to Firmin-Desloge Hospital in St. Louis, Missouri, where she died on March 31, 1981, as a result of her injuries. Claimant was treated at St. Elizabeth Medical Center, where mandatory blood tests showed his blood alcohol concentration to be .107 by weight. Although State law provides that the legal level of intoxication is 0.10, Claimant denies being intoxicated or under the influence of alcohol at the time of the accident. He was not charged with driving under the influence of alcohol.

The evidence consists of deposition testimony of Claimant and Robert Freesmeier, the decedents employer at the time of her death; photographs of the accident scene; and State and Federal regulations regarding highway design, construction and maintenance. Claimant has offered evidence of a subsequent accident at the same location and subsequent remedial measures performed by Respondent following the accident in the instant case and the subsequent accident. Respondent objects to this evidence.

Both parties have submitted briefs, and the Commissioner heard arguments on May 17, 1990. Both parties then submitted supplemental briefs.

Claimant asserts that Respondent breached its duty of care by failing to exercise reasonable care in the construction and maintenance and care of these highways, and, specifically, by failing to follow standards of the United States Department of Transportation, Federal Highway Administration. Claimant contends this breach was the direct and proximate cause of the death of the decedent. In the alternative, Claimant asserts that in the absence of violations of regulations, Respondent has a general duty of exercising reasonable care, which Respondent breached by failing to properly illuminate and/ or mark the median separating the collector-distributor lane and the westbound lanes of Interstate 270.

However, Respondent contends that the interchange in question was designed, constructed and maintained in compliance with the standards of the Illinois Department of Transportation and the United States Department of Transportation. Respondent also claims that it did not breach its general duty of exercising reasonable care because it had no notice of any dangerous conditions at that interchange prior to Claimants accident. Furthermore, Respondent asserts that Claimant himself proximately caused the accident because he was presumptively under the influence of alcohol as a result of his blood-alcohol concentration being in excess of the legal level; he was driving at a speed in excess of what was reasonable and proper under the circumstances; and he failed to keep a proper lookout.

The State is charged with a duty to maintain its roads and highways in a reasonably safe condition for the purpose for which they were intended, and in order for a Claimant to recover for injuries due to a breach of that duty, the Claimant must prove by a preponderance of the evidence that there was a breach and that this breach proximately caused the injuries sustained by the Claimant. Preikshat v. State (1985), 37 Ill. Ct. Cl. 29.

Claimant asserts that Respondent breached its duty by failing to comply with Federal highway standards set forth in the United States Department of Transportation, Federal Highway Administration, Manual on Uniform Traffic Control Devices (1978 edition), hereinafter referred to as the Federal manual. Although none of the Federal manual is contained in the file of this case, portions are quoted in the parties’ briefs.

The following are pertinent excerpts from the Federal manual:

"Under authority granted by Congress in 1966, the Secretary of Transportation has decreed that traffic control devices on all streets and highways in each state shall be in substantial conformance with standards issued or endorsed by the Federal Highway Administrator. (Page 1A-3).
0 0 0
The responsibility for traffic control devices rests with a multitude of governmental jurisdictions. In virtually all states, traffic control devices placed and maintained by state and local officials are required by statute to conform to a State Manual which shall be in substantial conformance with this Manual. Many Federal agencies have regulations requiring standards in conformance with this Manual for their control device application. (Page 1A-3).
0 0 0
Islands should be carefully planned and designed to provide travel paths that are obvious, easy to follow, and continuous, so as not to constitute a hazard in the roadway. (Page 5B-1).
0 0 0
Islands should be clearly visible at all times and from a position sufficiently in advance so that the vehicle operators will not be surprised by their presence. Islands should occupy the minimum of roadway space needed for the purpose and yet be of sufficient size to be noticeable. (Page 5B-1).
0 0 0
Easy recognition of islands by approaching vehicle operators is necessary for efficient and safe operation. The forms or means of designating island areas vary, depending on their sizes, locations, and functions, and also the character of the adjacent area, rural or urban. An important consideration, in all locations, is to provide a contrast in color, and preferably texture, between islands and adjacent pavements.
Generally, islands should present the least potential hazard to approaching vehicles and yet perform their intended functions. When curbs are used, the mountable type is preferable except where a barrier curb is essential for traffic control or pedestrian refuge. Barrier curb also may be used on islands where traffic control devices are installed.
Islands maybe designated as follows:
1. Raised and outlined by curbs and filled with pavement, turf, or other material.
2. Formed by pavement markings (sometimes supplemented by buttons or raised bars or flexible stanchions on all paved areas).
3. Unsurfaced areas (sometimes supplemented by delineators, guideposts, or other devices). (Page 5B-2).
y y y
All islands and the proper channels of travel through them should be made clearly visible at night by adequate reflectorization and/or illumination. Illumination of refuge islands, including their approach-end treatment, should be sufficient to show the general layout of the island and immediate vehicular travel paths, with the greatest concentration of illumination at points of possible danger to pedestrians or vehicles, as at barrier curbs or other structures." (Page 5D-1).

Although Respondent contests the assertion that the median in question is an “island” as meant in the above regulations, Respondent has not presented any evidence contrary to that assertion. Because of the wording of the regulations, which will be analyzed below, it is not dispositive whether the median is an “island.” For the sake of argument, we will give Claimant the benefit of the doubt and accept that the median is an island.

Respondent contends that pursuant to the above-quoted regulations from the Federal manual, The Illinois Manual on Uniform Traffic Control Devices (1958 and 1979 editions), hereinafter referred to as the State manual, is in substantial compliance.

Respondent also contends that the interchange in question was designed, constructed, and maintained in comphance with the State manual. Claimant has offered no evidence to show that the interchange s design, construction, or maintenance failed to comply with the State manual.

Respondent correctly argues that based on the language in the Federal manual, the sections quoted above regarding the illumination and delineation of islands are advisory and permissive in nature, not mandatory. The regulations state what agencies should and may do regarding islands, not what they must do.

Claimant argues that the wording indicates the duty of the State to properly construct, design, mark, and maintain highways. This may very well be true, and Respondents general duty of due care will be discussed below.

It seems clear that from the wording of the passáges quoted above, Respondent was not in violation of any mandatory Federal regulations regarding illumination or delineation of the median in question. Furthermore, it is not asserted that Respondent was in violation of any of its own regulations.

In the absence of violation of any regulations, Claimant contends that Respondent still had a general duty to keep its roadways in a reasonably safe condition and to maintain adequate and proper warning signs or devices alerting the public to unusual and dangerous conditions. (Consolidated Freightways v. State (1985), 37 Ill. Ct. Cl. 32.) Claimant claims Respondent breached this duty by failing to properly illuminate the section of the interchange where the accident occurred and/or failing to mark the median to alert motorists of its presence.

It is true that Respondent has a general duty in absence of any regulatory violations. To prove negligence, Claimant must also prove that Respondent had notice of a dangerous condition; that in spite of such notice, Respondent breached its duty; and that this breach was a proximate cause of the injuries suffered. Claimant has failed to prove all three of tírese elements, which are necessary for a finding of negligence. In fact, Claimants citing of Consolidated Freightways fails to support his argument. That case can be distinguished from the instant case in that the Court found that numerous accidents occurred on the stretch of road at issue there, giving the State notice of the dangerous condition. Id. at 34.

Upon looking at the diagram showing location of illumination at the interchange in question, it is apparent that a potentially dangerous condition did exist with the closest lighting located to the east of the site where the accident occurred, rather than directly above the collector-distributor lane. A motorist exiting the ramp and entering the collector-distributor lane would have the lighting behind him. Thus, the absence of any markings and striping or the median, would make the median difficult to see in such a condition where the motorist was backlit.

However, the mere fact that a defective condition existed if, in fact, it did exist, is not in and by itself sufficient to constitute an act of negligence on the part of Respondent. (Cotner v. State (1987), 40 Ill. Ct. Cl. 70; Palmer v. Northern Illinois University (1964), 25 Ill. Ct. Cl. 1.) The burden is upon Claimant to show that the State had actual or constructive notice of defects that cause injuries. (Cotner, 40 Ill. Ct. Cl. at 72; Norman v. State (1982), 35 Ill. Ct. Cl. 693.) Claimant has presented no evidence to show that Respondent had actual or constructive notice of a dangerous condition at the interchange in question. Furthermore, Respondent represents that this is the first accident involving the median on this collector-distributor lane since completion of construction of the interchange in 1962. Claimant has failed to produce evidence of any complaints to Respondent or incidents that would show Respondent had notice of a dangerous condition.

Claimant attempts to show notice through Claimants testimony that he saw tire marks and gouges in the median in question weeks after the accident. There is no evidence, however, that Respondent was aware of these marks or that they were in fact what Claimant purports them to be, i.e., evidence of other motorists striking the median prior to Claimant’s accident. Without notice, there can be no breach, and without breach, there can be no proximate cause. Therefore, Claimant has failed to show that Respondent was negligent.

In further support of his argument, Claimant requests the Court take judicial notice of an action against Respondent resulting from a subsequent motorcycle accident at the same location at approximately tire same time of day. Although the occurrence of a similar accident at the same location under similar circumstances buttresses the assertion that a dangerous condition existed, it fails to rebut the fact that Respondent had no actual or constructive notice, because the other accident occurred after Claimants accident.

In addition, Claimant wishes the Court to consider subsequent remedial measures Respondent took at the interchange after the accident occurred as evidence of negligence. Evidence of subsequent remedial measures generally is prohibited, but there are exceptions. Claimant asserts that such evidence is permissible, according to holding in McLaughlin v. Rush-Presbyterian St. Lukes (1979), 68 Ill. App. 3d 546, 386 N.E.2d 334, and Lubbers v. Norfolk & Western (1986), 147 Ill. App. 3d 501, 498 N.E.2d 357.

However, these cases fail to support Claimants argument and are inapposite to the instant case. The use of evidence of subsequent remedial measures in McLaughlin involved post-occurrence change in the design of a catheter in a medical negligence action against a hospital. The court admitted the evidence because the manufacturer of the catheter was not a party to the suit, and admission of the evidence did not prejudice the manufacturer. Nor was it introduced to prove the manufacturers negligence. The court also cited the Federal Rules of Evidence, which state that evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct but is admissible for such other purposes as providing ownership, control, or feasibility of precautionaiy measures, if controverted, or impeachment. (McLaughlin, 68 Ill. App. 3d at 549.) In the instant case, Claimant wishes to use Respondent’s own subsequent remedial measures against Respondent to prove Respondent’s negligence, a tactic of which the court in McLaughlin would surely disapprove.

In Lubbers, where admissibility of subsequent repairs to a train crossing signal was at issue, the court also stated that evidence of subsequent repairs or improvements is inadmissible to show defendants negligence, but such evidence may be used for proving ownership, feasibility of precautionary measures, or impeachment. In that case, the court found that the plaintiff simply stated that the evidence would have been admissible to show defendant s notice of the problem and the feasibility of making repairs; however, the plaintiff failed to show how these matters relate to any of the issues involved in that case. Lubbers, 147 Ill. App. 3d at 515.

In the instant case, Claimant is not seeking to use evidence of subsequent remedial measures to prove ownership, control, feasibility of precautionary measures, or impeachment, but to show Respondents negligence. Therefore, Claimant’s reliance on these exceptions is misplaced. Respondent correctly states the rule that subsequent remedial measures can be used as evidence in only those narrow exceptions and never to prove negligence. Davis v. International Harvester Co. (1988), 167 Ill. App. 3d 814, 521 N.E.2d 1282.

Although it is unnecessary to decide the proximate cause of the accident because Respondent had no actual or constructive notice of a dangerous condition, the issue of proximate cause was hotly contested by the parties and deserves to be addressed.

Despite the fact that a dangerous condition existed, Claimant still must prove the condition to be the proximate cause of the decedents death. Nunley v. Village of Cahokia (1983), 115 Ill. App. 3d 208, 450 N.E.2d 363; Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 449 N.E.2d 1358.

Respondent contends Claimants negligence was the sole proximate cause of the accident. This contention is supported by the evidence. Blood-alcohol testing is recognized as a proper means of proving intoxication in personal injury actions. (Burris v. Madison County (1987), 154 Ill. App. 3d 1064, 507 N.E.2d 1267; Thomas v. Brandt (1986), 144 Ill. App. 3d 95, 493 N.E.2d 1142.) In addition, section 501.2(b) of the Illinois Vehicle Code (625 ILCS 5/11—501.2(b)) states:

“Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the persons blood or breath at the time alleged or shown by analysis of the person's blood, urine, breath, or other bodily substance shall give rise to the following presumptions:
O 9 9
3. If there was at that time an alcohol concentration of 0.10 or more, it shall be presumed that the person was under the influence of alcohol.”

It is uncontroverted that Claimants blood-alcohol concentration shortly after the accident was 0.107 by weight, giving rise to the presumption that Claimant was under the influence of alcohol. To rebut this presumption, Claimant testified that he did not feel intoxicated. However, it is well established that a motorist can not feel intoxicated but still be under the influence to the extent that his ability to operate a motor vehicle is compromised.

In addition, Claimant admits that he was accelerating to highway speed (approximately 55 miles per hour) on a stretch of road with which he was unfamiliar. Also, at that time, he was looking behind him and not ahead, where the median was located.

Although because of the failure of Claimant to establish that Respondent had notice of a dangerous condition, proximate cause of the accident was not established, the Court should note that Claimant was, at least, contributorily negligent, or, at most, his negligence was the sole proximate cause of the accident.

It is unfortunate and tragic that a life was lost, either due to a dangerous highway condition or to Claimants own negligence. However, the Court must follow the law of this State, and this Claimants claim must be denied because he failed to show Respondent had notice of a dangerous condition, that ignoring that condition resulted in Respondent breaching its duty of care, and that a breach of this duty was the proximate cause of the decedents death.


author: Holderman, J. Patchett, J.

text:
    (No. 83-CC-2123
    Gary Hodges, Claimant, v. The State of Illinois, Respondent.

      Order filed January 24, 1985.

      Opinion filed July 6, 1995.

    Donovan, Hatch & Constance, RC. (Michael J. Nester, of counsel), for Claimant.
    Neil Hartigan and Jim Ryan, Attorneys General (Sue Mueller and James C. Majors, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Holderman, J.

This cause comes on to be heard on the Respondents motion to dismiss and the Court is duly advised in the premises, finds that the Claimants complaint states on its face that Claimant was proceeding in an easterly direction at the time of the accident when his car was struck by one Rosemarie Timmermann, who was traveling in a northerly direction at the time of the accident. The complaint further states that Ms. Timmermann struck Claimants vehicle on the right-hand side, indicating that the Timmermann vehicle and the Claimants vehicle were approaching each other at a 90-degree angle, and that the Timmerman vehicle was to the right of Claimant’s vehicle immediately prior to the accident.

Because the intersection was legally an open one at the time of the accident, Claimant’s breach of his statutory duty to yield to the Timmermann vehicle was the proximate cause of the accident. At an open intersection a driver has a statutory duty to yield to vehicles approaching from the right. (Ill. Rev. Stat. 1981, ch. 95½, par. 11— 901(a); Duewel v. Lahman (1981), 103 Ill. App. 3d 220, 224, citing Carr v. Shirland Township (1978), 66 Ill. App. 3d 1033, 1036.) This statutory duty applies when a stop sign is missing at an otherwise open intersection. (See Duewel, supra.) This traffic law also constitutes the duty of care imposed upon a motorist. (See Duewel, supra.) Violation of such a traffic regulation is prima facie evidence of negligence. (Baker v. Chicago Transit Authority (1978), 65 Ill. App. 3d 91, 93, 382 N.E.2d 450; Duewel, supra.) The Claimant breached this duty of care by entering the intersection without yielding to the Timmerman vehicle which was approaching from his right. (See Kofahl v. Delgado (1978), 63 Ill. App. 3d 662, 624-625, 380 N.E.2d 407.) Thus Claimants negligence was the sole proximate cause of the accident.

It is hereby ordered that, as Claimants complaint fails to state a cause of action, Claimants complaint is dismissed with prejudice.

OPINION

Patchett, J.

This is a subrogation claim by State Farm Mutual Automobile Insurance Company against the State of Illinois. The claim was filed on April 7, 1983, seeking damages in the amount of $9,509.52. This claim arose from property damage and the payment of liability claims due to an accident which occurred on June 7,1981, at the intersection of East “B” Street in Belleville, St. Clair County, Illinois, and Illinois Route 161 (also known as Sherman Street).

At that time and place, it was alleged that the State Farm insured, Gary Hodges, was operating his 1981 Toyota Célica in an easterly direction on East “B” Street at or near that intersection. At the same time and place, Rosemary Timmermann was driving her 1979 Ford Fiesta vehicle north on Route 161 at or near that intersection. It was further alleged that the stop sign for motorists traveling east on “B” Street had been knocked down and because of its absence, the collision occurred between the vehicles in question, thus causing the loss to State Farm in the sum indicated above.

A trial of this matter was held before a Commissioner of this Court. It was stipulated that the Claimant had received $1,500 towards his damages as a result of the settlement of another case in which the Claimant had sued the City of Belleville. Mr. Marvin Glaus was called as a witness for the Claimant. He testified that he lived near the scene of the accident and was acquainted with the Claimant. Hodges had been at Glaus’ house from around noon until 12:30 p.m. at a barbecue. Glaus and Hodges were employed by the same employer. After Hodges left the witness’ house, he returned at approximately 11:00 p.m. and asked that an ambulance be called.

Glaus testified that there was normally a stop sign controlling eastbound traffic on East “B” Street at the intersection in question. When Glaus went to the scene of the accident, the stop sign was down. Glaus testified that the stop sign had been down earlier in the day at approximately 2:00 p.m.

On cross-examination, Glaus testified that Hodges had attended a barbecue at his house where cans of beer in an icebox were available to anyone. Glaus could not say how many beers that Hodges had. Glaus did not report the stop sign being down earlier in the day to anyone. Upon examination by the Commissioner of this Court, Glaus testified that he had passed the intersection on the preceding Saturday and did not remember that the stop sign was missing on that Saturday.

It is clear that the State is not an insurer of all accidents upon its highways. (Adams v. State (1981), 35 Ill. Ct. Cl. 216.) The State does have a responsibility to correct dangerous defects of which the State has actual or constructive notice. (Finn v. State (1962), 24 Ill. Ct. Cl. 177; Pearlman v. State (1980), 33 Ill. Ct. Cl. 28; Stedman v. State, 22 Ill. Ct. Cl. 446; Weygandt v. State, 22 Ill. Ct. Cl. 478.) This Court has repeatedly held that drivers utilizing highways of the State are charged with the duty of looking and seeing things which are obviously visible. (Pyle v. State (1973), 29 Ill. Ct. Cl. 133.) In the Pyle case, the accident occurred at the intersection of Route 148 and Old Route 13 in Williamson County. At that time, Route 148 was a preferential north-south highway protected by stop signs facing traffic approaching on Old Route 13. The Claimant was driving east on Old Route 13 and passed a stop ahead sign which she did not see. The Claimant did see a red pickup truck coming south on Route 148, slowed her speed, but did not stop because she did not see a stop sign in her lane.

In determining the Pyle case, this Court stated that it must determine whether and at what time the State had "knowledge of a dangerous condition on its highway” and whether the State failed to take an appropriate remedial action within a reasonable length of time. In the Pyle case, the Court determined that it could not hold the State liable for its failure to repair the sign or erect warning signs within 29 hours after notice of the condition. The Court stated:

"We have found no case holding a responsible governmental body liable when it had no more than 29 hours of notice, actual or constructive. Our survey included many cases involving busy intersections, much more hazardous than the one in the case at bar. Indeed, the shortest length of notice we found in any case in which liability was imposed, was the case cited by the Claimant, Caudle v. State, 19 Ill. Ct. Cl. 35 (1949). There, the State had 4 or 5 days notice that a dangerous hole existed in the center of its highway.” See Pyle, supra.

In Adams v. State (1981), 35 Ill. Ct. Cl. 216, this Court imposed liability upon the State when the evidence established that the State had actual and constructive notice of a downed stop sign for at least 72 hours prior to the accident.

In Clark v. State (1985), 38 Ill. Ct. Cl. 164, Justice Poch stated that whether the State is to be charged with constructive notice of a missing stop sign depends on the facts of the particular case. In that case, the stop sign was missing for a period of a month and possibly as long as six weeks. The Court stated that a sign on a lightly traveled rural road is less likely to be noticed than one located in a small town or village. Therefore, a longer period should be allowed the State before the State is charged with constructive notice of a dangerous or defective condition.

In this case, the Claimant asks this Court to impose liability where the only evidence in the record establishes that the sign was down approximately 8 to 9 hours before the accident. There is no evidence of actual notice. This is simply an insufficient amount of time to be considered as constructive notice on the part of the State of the missing stop sign. Therefore, we deny this claim.


text:
    (No. 84-CC-1693
    Robert Lynn Lovsey, Sr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 21, 1995.

    Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, PC. (Samuel A. Mormino, Jr., of counsel), for Claimant.
    Jim Ryan, Attorney General (Thomas S. Gray, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This claim arises out of a motorcycle accident which occurred on May 23, 1983, involving Claimant, Robert Lynn Lovsey, Sr. Mr. Lovsey alleges Respondent was negligent in its care and maintenance of the Williamson Road in Madison County, Illinois, in that his motorcycle struck a bump and a metal rod in the roadway, resulting in injury to Claimant.

The parties have stipulated that the road in question was under the jurisdiction of the State of Illinois Department of Transportation. Additionally, plaintiffs group exhibit #1 was admitted by stipulation as being Claimants medical bills incurred as a proximate result of the injuries he sustained in the accident in the amount of $13,488.74.

Claimant testified that he was headed east with another cyclist, Ray Royer, who was behind him. The pair was riding in a staggered fashion with Claimants motorcycle closest to the centerline of the road. The Claimant testified that he observed patchwork in the roadway or possibly a pothole in front of him, so he moved his motorcycle closer to the centerline. When Claimant’s motorcycle went over the patchwork, the front end of his motorcycle “started going real squirrelly and shaking and everything,” with subsequent loss of control and the resulting injuries. Claimant contends he was going about 40 miles per hour as he approached the patchwork and had previously been going about 50 m.p.h. The weather was dry and clear and the roadway was straight. It was about 4:50 p.m. at the time the incident occurred.

Claimant testified that after he was released from the hospital, he went back to the scene and took photographs of a piece of steel protruding from the roadway. Claimant and his wife testified that they had been informed of the existence of the piece of steel which purportedly caused the accident by Claimant’s friend Ray Royer. Claimant made identifying marks on the photographs of the area where the accident occurred. The photographs were admitted into evidence. Claimant contends he did not see the steel because “it kind of blended in with the patch.” The photographs introduced into evidence show a patched area which is clearly visible. The steel is far more difficult to discern. Claimant’s friend, Mr. Royer, attempted to move the steel when he and Claimant visited the site some two weeks after the accident. The steel was immovable as it was imbedded in the concrete of the roadway.

Claimant stated on cross-examination that he was familiar with Williamson Road and had driven upon it once or twice a week without having previously seen the steel protruding from the road. He did not see the steel in the roadway on the day of the accident and was attempting to avoid a pothole in the patched area when he lost control of his motorcycle. Claimant’s assertions that the steel in the roadway caused his accident was based upon Mr. Royer’s observations after the accident.

Royer testified he was riding his motorcycle behind the Claimant at the time of the accident. Royer was 20 or 30 feet behind the Claimant in a staggered fashion. Royer noticed Claimants motorcycle wobbling and shaking and observed Claimant’s motorcycle start “flipping over.” Royer testified they were traveling at the speed limit. Royer stated that he and the Claimant had slowed down as they approached the patched area in the highway.

Royer returned to the scene of the accident two days later to see what had caused the accident and he found the piece of steel sticking out of the patchwork. Royer identified the photograph marked as plaintiff’s exhibit #2 as showing and portraying the piece of metal as he saw it when he went to the accident scene two days after the accident. He tried to dislodge the steel but he said “there was no dislodging it from where it was.” Royer stated that the metal looked like a railroad rail.

Royer admitted on cross-examination that on the date of the accident he did not know what had caused the problem leading to the accident. Royer testified on cross-examination that he recalled die steel sticking above the traveled portion of the roadway about an inch-and-a-half.

Michael Weber, an employee of die Illinois Department of Transportation testified that he was in charge of the maintenance of the section of Williamson Road where the accident occurred. Weber routinely inspected the road. Weber did not observe a piece of steel and had no record of receiving any complaints regarding the area. Weber produced plans that showed that there was steel in the roadway upon its construction in 1937. The steel included a flange laid in the cement one-half inch below the surface of the roadway which secured one-half rebar eveiy two and one-half feet. After the accident in August of 1983, there was additional work done as a result of highway deterioration that occurred in the location of the accident. Weber had no recollection or knowledge of any steel sticking out of the highway at the time of the August, 1983, repairs.

There is no question that the Claimant was seriously injured and sustained substantial medical expense. His injuries included a right collar bone fracture, left shoulder separation, several broken ribs, broken right hand, large contusions and a gouge in his leg. The Claimant sustained collapsed lungs as a result of the chest injuries sustained. Claimant was in intensive care for ten days. Claimant testified that he has continuing pain and disabilities and loss of sleep.

At the time of thé accident, Claimant was laid off at his job at Laclede’s Steel and was not recalled until the fall of 1983. Claimant did not lose employment as a result of his injuries. Claimant’s total medical bills as a result of his injuries were stipulated to be $13,488.74, and there is a public aid lien to the extent of $4,022.74 against any award that may be made to the Claimant.

Both parties submitted post-hearing briefs. Claimant has the burden of proving each of the following propositions:

1. That the Respondent was negligent;

2. That the Respondent’s negligence was the proximate cause of Claimant’s injuries;

3. That Claimant had actual or constructive notice of a dangerous condition;

4. Damages.

Claimant first contends that the patchwork at the scene of the accident establishes that the roadway was deteriorated, and that at some point in the deterioration the steel was allowed to sink into the roadway and protrude from the surrounding concrete. Claimant contends that the existence of a patch in the area where the steel protruded from the concrete establishes that the State had notice of the dangerous condition, and that the repairs that were attempted (i.e. patching) were ineffective. Claimant argues that the State has a duty to maintain its highways in a reasonably safe condition and a duty to the public to warn of a danger that exists which could not be discovered by the public. (Robertson v. State (1983), 35 Ill. Ct. Cl. 643.) Further, the duty of the State includes the obligation to perform maintenance and effectively remedy dangers, and to refrain from ineffective remedies. (Sisco v. State (1963), 24 Ill. Ct. Cl. 306; Robertson, supra.) Claimant further contends that when a dangerous condition exists the State has a duty to warn members of the general public, citing Sisco and Robertson, supra.

As to the issue of proximate cause, Claimant argues that both Claimant and his friend, Royer, testified that Claimants motorcycle went out of control as it passed over the patchwork area on Williamson Road. It is not disputed that all of Claimants injuries were related to the accident which resulted when his motorcycle went out of control after crossing the patched area. Claimant contends that it was a sunny day and the road was level and clear without visible surface debris. There was evidence that the motorcycle was in good condition and that the tires of the motorcycle were not damaged in the accident. The evidence sustained a conclusion that Claimant had experience as a motorcycle operator. Finally, Claimant suggests that the State offered no alternative theory of causation.

Respondent contends that the Claimant’s proof failed to demonstrate that the piece of steel in the road was the cause of his injuries, and failed to prove that the State had actual or constructive knowledge of any dangerous condition regarding the road prior to the incident. Claimant was familiar with the road and had not seen any metal sticking out of the road previously. Claimant did not see the metal prior to the accident. Respondent contends that the Claimant only assumes that he struck the steel and Claimants testimony that the steel caused the accident is mere speculation. Respondent points to the fact that the Claimants motorcycle tires remained inflated and undamaged after the accident. Respondent argues that there is no direct proof that the metal in the roadway or any other factor was the cause of the accident and concludes that the Claimant is asking the Court “to take a blind leap of faith” on the issue of proximate cause.

Respondent contends that all the evidence in the case indicated that neither the Claimant nor any agent of the Respondent ever saw or had noticed the metal objects imbedded in the road before this incident. State inspectors did not observe any scrap metal protruding from the road. There was no proof of complaints regarding the condition during the relevant time period.

Claimant replies that it is not disputed that he lost control of his motorcycle while crossing the patched area and that it was later determined that the steel was protruding from the road surface at or near the location where he lost control of his motorcycle. This, Claimant contends, combined with testimony that the Claimant was exercising due care and there could have been no other possible causes of the accident is sufficient proof of proximate cause in this case. Claimants argument suggests that Claimants proof of proximate cause shifted the burden of proceeding to the State to come forward with evidence of causation other than the existence of the patched roadway and the protruding steel. As to the issue of notice, the thrust of Claimants reply is that the existence of patches in the area where the steel allegedly protruded from the surface of the roadway was proof of prior notice of a dangerous condition, and that the Illinois Department of Transportation should have foreseen that the steel would or could protrude through the patchwork and create a dangerous condition.

The State of Illinois is not an insurer of the condition of its highways under its maintenance and control, but it does have a duty to use reasonable care in maintaining roads under its control. (Ohms v. State (1975), 30 Ill. Ct. Cl. 410.) The exercise of reasonable care requires the State to keep its highways reasonably safe. It is the duty of the State to maintain its highways so that defective and dangerous conditions likely to injure persons lawfully on the highways shall not exist. (Moldenhauer v. State (1984), 36 Ill. Ct. Cl. 24.) To be held liable for negligence, the State must have actual or constructive notice of a dangerous condition, and permit the dangerous condition to exist without warning to the motoring public. Clark v. State (1974), 30 Ill. Ct. Cl. 32; Baker v. State (1989), 42 Ill. Ct. Cl. 110, 115.

In Baker; supra, Claimants motorcycle went out of control on an exit ramp allegedly because the State had allowed gravel to accumulate on the exit ramp. Claimant contended that when his motorcycle hit the gravel, he lost control and was injured. IDOT employees testified that they cleaned debris from the road when it was seen and observed. The road was observed by IDOT employees daily and there were no reports of debris on the exit ramp in question. IDOT employees did not remember sweeping any crushed rock or gravel off of the exit ramp. Photographs of the scene showed rocks off of the main traveled portion of the roadway. Citing Wagner v. State (1978), 32 Ill. Ct. Cl. 50, this Court held, in Baker.; supra, that there was an absence of proof as to how long the condition had existed and no evidence upon which to charge the State with notice of the existence of a dangerous condition. On the basis of the fact that the State had not been shown to have actual or constructive notice of a dangerous condition, the claim was denied.

In order to sustain Claimant’s theory of liability in this case, we must be prepared to find and hold that the existence of patching in the area where the steel allegedly protruded from the main traveled portion of the roadway constituted direct evidence of prior notice of a dangerous condition on the part of the State. It is clear that asphalt patches were present at the scene of the steel which allegedly protruded from the surface of the roadway. It does not follow that the existence of these patches imputes prior knowledge of a dangerous condition to Respondent. Indeed, the evidence is clear and uncontradicted that the existence of the steel protruding from the roadway was hard to determine and could not be seen by passing motorists. The steel was not seen or observed by the Claimant prior to the accident, nor was it seen or observed by persons whose duty it was to inspect the condition of the highway. All those testifying on the point agreed that the existence of the allegedly dangerous condition could not be easily observed due to the fact that it “blended” into the patchwork on the roadway at the scene where the Claimant lost control of his motorcycle. Furthermore, there is absolutely no evidence, other than pure speculation, that the steel allegedly protruding from the surface of the roadway was the, or any, proximate cause of the Claimant’s loss of control of his motorcycle. The State does not have the burden of explaining how it came to pass that the Claimant lost control of his motorcycle. The burden of proof remains with the Claimant throughout the course of the trial. It is not up to the State to bring forward evidence or speculation as to what conditions or causes may have existed with respect to the accident other than the causes alleged by the Claimant.

Claimant has failed to prove that Respondent had actual or constructive notice of a dangerous condition which was the proximate cause of Claimants injuries.

Based upon the foregoing, we must hereby deny this claim.