author: Jann, J. Jann, J.

text:
    (No. 84-CC-0961
    Robert M. Nebgen, James F. Nebgen, L. E. Yeager, and Carl H. Tempel, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 12, 1994.

      Order on petition for rehearing filed August 8, 1994.

    Pessin, Baird & Wells (Sam S. Pessin, of Counsel) for Claimants.
    Roland W. Burris, Attorney General (James C. Majors, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

Claimants seek judgment against Respondent for damages claimed to have been sustained by Claimants through the fraud of a representative of Respondents Department of Commerce and Community Affairs.

Claimants contend that they sought funding for a new industry to be located in East St. Louis. Claimants allege that they had arranged financing to commence the project through the officials and representatives of East St. Louis. Claimants assert that John Smith, an agent, employee or servant of Respondent’s Department of Commerce and Community Affairs fraudulently represented to Claimants that he had obtained “private” funding for their project through a Florida trust, and through his contacts Claimants could avoid bonding costs. Claimants contend that in reliance on Respondent’s agent, Claimants cancelled arrangements for an industrial revenue bond issue that had been approved by representatives of the City of East St. Louis. Further, in reliance on Respondent’s agent, Claimants borrowed $50,000 to meet initial expenses. After having borrowed the $50,000 and having paid initial expenses, Claimants claim never to have heard from Respondent’s agent again. Claimants advised representatives of Respondent’s departmént of the failure of Respondent’s agent to follow through on the financing arrangements. Apparently after having played a taped telephone conversation for the director of the department, Respondent’s agent was interviewed by department officials and resigned on the spot.

Claimants seek damages against Respondent in the amount of $71,375.05, being the amount of principal and interest on a $50,375 loan obtained by Claimants for payment of initial expenses in reliance on the alleged fraudulent representations of Respondent’s agent.

Respondent contends that their agent was far outside the scope of his employment and authority if, indeed, the representations made by Respondent’s representative were as alleged by the Claimants.

Claimants contend that after contacting Respondents Department of Commerce and Community Affairs, they were referred to John Smith. The City of East St. Louis was committed to giving Claimants a 26.5 acre tract of land for $1 for an industrial site at a location which had 2.6 million dollars of funds dedicated to it for development of streets, sewers and lighting. East St. Louis had also offered Claimants a 10-year tax abatement for up to a million dollars, and the city was willing to issue industrial revenue bonds in the amount of approximately six million dollars to help fund the project. The project could have been funded with the industrial bond issue. Appropriate resolutions were passed by the East St. Louis City Council.

Claimants contend that Respondent’s representative John Smith caused Claimants to back out of the arrangements with East St. Louis and “shut that all down.” Claimants had been referred to John Smith by a representative of Respondent’s Department of Commerce and Community Affairs. Smith was introduced as a colleague in the Respondent’s Department of Commerce and Community Affairs, and that Smith “may be able to assist” the Claimants. Claimant Robert M. Nebgen testified that Smith advised Nebgen that Smith had knowledge of people who could provide financial assistance to Claimants. Smith stated to Nebgen in the presence of Don Falls of Respondent’s department (Department of Commerce and Community Affairs) that it was Smith’s job to assist people like the Claimants in developing industries within the State of Illinois, and that he met “all kinds of people that had funding available.” According to Claimant Neb-gen, Smith advised Nebgen that by using his sources of funding, Claimants could avoid the cost of bonding and the costs of people who do all the bonding work. Smith represented to Claimants that Smith was contacting the “Ulena Trust,” and that those people could possibly fund Claimants’ project, thereby avoiding a revenue bond issue. The initial meeting between Claimant Robert M. Nebgen and John Smith was in July of 1982 at the office of Don Falls of Respondent’s department in Springfield. Nebgen testified this was the only time that Claimants met face to face with John Smith, and that further communications were by phone conversation. Claimants contend that they sought from Smith, and were granted, authority to tape telephone conversations between Smith and Robert M. Nebgen so that other investors in the project could hear the conversations if they were unavailable to hear them first hand. Thereafter, some of the conversations between Robert M, Nebgen and John Smith were taped but later erased and not preserved. One conversation was preserved which occurred in July 1982 toward the end of the month. The transcript of the conversation was marked as Claimant’s Exhibit #3. In the conversation marked and identified as Claimant’s Exhibit #3, Smith represented to Claimants that he had tentative approval from the Ulena trust for the funding of the project. Claimants contend that a week later Smith called back and said that he had obtained “final approval” and that everything “was okay.” Claimants contend that Smith advised Claimants that the funding through the industrial bond issue of the City of East St. Louis would no longer be required.

In reliance on Smith’s representations, Claimants contacted the people with whom they had been dealing in East St. Louis and advised them that their funding was no longer necessary. Further, in reliance on Smith’s representation, Claimants borrowed $50,000 to pay expenses. A local bank loaned Claimants $50,000 and required individual guarantees by the Claimants to secure the debt. The loan was at 15.5% interest (prime + 2). Claimants used the $50,000 to pay expenses incurred by Claimants in developing the project to that point, and paid off the CPA firm to whom they had been referred by Respondent s department at the outset.

Claimants never heard from John Smith again after the July phone call. When Claimants were unable to reach John Smith or Don Falls, a representative of Respondents department with whom they had conferred, and the person who had introduced them to Smith, Claimants became suspicious and made contact with an FBI agent with whom Claimants were acquainted to check on the “Ulena Trust,” purportedly located in Miami, Florida. Claimants were unable to learn anything about the “Ulena Trust.” Claimants contacted the assistant to the director of Respondents department who claimed to be ignorant of the situation. Claimants were invited to come to Springfield with the taped telephone conversation. Claimants drove to Springfield and met with Respondents assistant director Woelfer. The taped telephone conversation was played and Respondent s agents made a tape recording of the taped conversation. Woelfer advised Claimant Robert Nebgen that the department had suspected that John Smith “had been doing this kind of thing for quite awhile” and that Claimants tape recording was “the first piece of hard evidence” that Smith was “engaged” in this kind of activity. Woelfer advised Robert Nebgen that the director of the department called John Smith in and played the tape for him and Smith resigned on the spot.

In a later conversation between Claimant Robert Nebgen and Peter Fox, the director of the Department of Commerce and Community Affairs that occurred in May or June of 1983 at Claimants home in Belleville, Fox asked Claimant what Claimant “thought the State of Illinois was responsible for.” Nebgen testified that the director of the department told Claimants that he (the director) agreed with Claimants as to what had happened, and that their project had been destroyed by John Smiths activities, and that he (the director) felt the same way as Claimants and that he (the director) was going back to Springfield and arrange “to set things straight.” Fox told Claimants that “they” had a fund available “like a contingency fund” for things like this, and that he (Fox) would go back to Springfield and “take care of it.” Claimants did not receive any funds.

Neither Claimants nor Respondent offered the testimony of John Smith and there is no evidence in the record from which it can be determined that the “Trust” to which John Smith apparently made reference in his telephone conversations with Claimants ever did or did not exist. Neither Claimants nor the Respondent presented Mr. Fox as a witness or representatives from the City of East St. Louis.

Claimants seek to impose liability on the State of Illinois because they claim they relied on telephone conversation representations of a State employee that certain private funding sources had agreed to loan money to the Claimants. Predicated on these representations, Claimants abandoned a plan to finance their venture through industrial revenue bonds authorized by the city officials of East St. Louis, Illinois. In further reliance on the representations of John Smith, Claimants contend that they borrowed money to pay expenses Claimants had incurred on the proposed project including bills of accountants for “feasibility studies” obtained by Claimants without regard to the alleged faults or misleading representations of John Smith. Implicit in the theory of detrimental reliance and fraud advanced by Claimants for recovery in this case, is the proposition that Claimants placed total trust and confidence in the representations of John Smith pertaining to his success in arranging private financing for Claimants, which was supposed to be on better terms than Claimants could obtain under the plan to which the City of East St. Louis, Illinois, was apparently committed. Claimants do not contend that any representative of Claimants ever had direct contact with the “Ulena Trust,” or any agent, servant or representative thereof. The record is sparse as to what information concerning Claimants’ project had been furnished to the “Trust” by John Smith. Since John Smith did not testify and no information was apparently obtainable from the “Trust,” the record is barren as to whether the purported “Trust” was a figment of Smith’s imagination, or, instead, if the trust actually existed and had actually made commitments to Smith which Smith passed on to the Claimants. This Court is left to speculate as to much of the hard information which predicates the “facts” and circumstances of Claimants’ claim against Respondent.

Claimants’ essential contentions in support of their claim against Respondent are as follows:

(a) Claimants’ “project” would have been funded and the expenses of Claimants duly paid from the industrial revenue bond issue authorized by the City of East St. Louis but for the verbal representations made by Respondent’s agent that he had secured “private” funding for Claimants’ project through the “Trust.”

(b) Claimants’ action in withdrawing from the proposed financing arrangement to which the City of East St. Louis had committed itself was reasonable, and was predicated entirely on the representations of Respondent’s agent to Claimant that Respondent’s agent had secured “private” funding on more favorable terms for the Claimants’ project.

(c) That the private funding obtained by Respondent’s agent for Claimant’s project would have paid Claimant’s project expenses, and that but for John Smith’s representations to Claimants, they would not have borrowed $50,000 to cover those project expenses, and would not have become liable for the repayment thereof.

(d) Claimants’ reliance on Smith’s representations without first making any direct contact between Smith’s alleged funding source and Claimants or their representatives, was reasonable.

(e) When a hopeful entrepreneur is told by Respondent’s agent that private funding for the entrepreneur’s project can be obtained through contacts made by representatives of State economic development agencies, any undertakings or financial commitments made by such entrepreneur on the strength of verbal representations by such agents of Respondent, may be “insured” by Respondent on the basis of claims by such entrepreneur that if these commitments are not kept by private entities, then the State may be liable to reimburse such entrepreneurs for their losses sustained.

Respondent contends that the agent of the State, John Smith, worked a fraud upon the Claimants. In essence, Smith misinformed Claimants or failed to “follow through” on obtaining financing for Claimants from some private source known only to Smith, and which Smith had represented had been both tentatively and finally approved by the unknown private funding source. Claimant argues had it not been for Smith, Claimants would have completed the industrial revenue bond funding. Claimant asserts Respondent’s liability under the theory of respondeat superior, and that, in any event, when the department director, Peter Fox, indicated to Claimants that he would seek reimbursement to Claimants from department contingency funds that this verbal undertaking by Fox at a meeting with Claimants was binding upon Respondent.

Claimant argues that Respondent may not successfully defend on the basis that their employee, John Smith, acted contrary to Respondents policies and procedures, and that “under common law principles of respondeat superior, a principal is liable for the deceit of its agent, if committed in the very business the agent was appointed to carry out.” Respondent makes no such argument. Instead, Respondent argues that when a representative of State government asserts that he has found private financing for a hopeful entrepreneur, these representations do not bind the Respondent and are not intended by either the State or its representative to bind the Respondent, State of Illinois. It is not suggested in the transcript or depositions that John Smith ever purported to bind the State of Illinois to any agreement with Claimants or their representatives. A suggestion by the director of the Department of Commerce and Community Affairs that he would look into the question of reimbursing Claimants from the departments contingency funds does not represent any admission or commitment on the part of Respondent to reimburse Claimants for the funds spent by Claimants as project expenses prior to the time that it was determined that Smiths assertions regarding his contact with private funding sources, and the availability of private funding sources had either proved false, or had not been pursued and brought to fruition by Smith on behalf of the Claimants.

The record as a whole in this case, demonstrates that Smith apparently either lied to the Claimants about having secured private funding, or simply failed to follow through on funding arrangements with private sources actually committed to the Claimants’ project. It may be that if Smith had followed through with the contacts he said that he had made with private funding sources, Claimants’ project may, indeed, have been benefited by those sources. Although it is not clear from the record, it appears that Smith’s employment by the State was terminated when the department director heard the tape of the conversation between Smith and Robert Nebgen transcribed and admitted into evidence as Claimants Exhibit #3. From a review of the transcript of the telephone conversation, it is just as believable that Smith’s sudden resignation upon being confronted with the tape of the conversation, was predicated upon Smith’s own statements of intent to become personally involved in the investment as it would be to assume that Smith’s sudden resignation was predicated upon the fear that he had been found to be making fraudulent statements to the Claimants about his efforts in obtaining private funding for their project. Implicit in the Claimant’s argument is that when Smith was confronted with the taped conversation, his resignation was predicated upon some belief that he had made misleading or fraudulent statements to Claimants concerning his activities on behalf of arranging private financing. Since there is no evidence in the record from Smith or from any persons purporting to represent the mysterious “trust” entity with whom Smith was allegedly dealing, it is impossible for this Court to make any determination as to the cause or reasons for Smith’s actions; or, indeed, whether the representations made by Smith to the Claimants were, in fact, misleading or fraudulent.

Respondent’s argument is persuasive that there is no evidence from which it can be concluded that Smith purported to bind Respondent to any financial obligation to the Claimants. Claimants’ own evidence through Claimants’ witness Nebgen demonstrates that Nebgen was not relying on any agreement with Respondent, but instead, was relying on the fact that Smith was an agent of Respondent, and was making representations concerning his activity on Claimants’ behalf not in striking agreements with a private funding source located in Miami, Florida which would benefit Claimants.

The best that can be said for the actions of Claimants in this case in placing such total and irrevocable reliance on the verbal representations of John Smith, would be that their actions in reliance on Smith’s statements were precipitous and unwise. At worst, Claimants’ contention that they may seek indemnity from the State of Illinois for undertakings that they voluntarily entered into on the sole basis of telephone conversations with John Smith concerning the availability of private funding and without any contact with the funding entity or any agent, servant or employee thereof, was ill-advised, premature and self-destructive. It is unreasonable in the extreme for this Court to be asked to assess Respondent with the responsibility of indemnification to plaintiffs for their preliminary project expenses because of the verbal representation made by a State employee as to what arrangements he had been able to make with private funding sources for hopeful entrepreneurs. The actions of Claimants in apparent reliance on Smith’s representations were naive and premature, and losses resulting therefrom should not be the responsibility of the State. Indeed, the bulk of the expenses covered by Claimants’ loan were ,expenses which would have been repaid by Claimants or by their new commercial entity in any event whether they had obtained private funding for their proposed enterprise, or whether they had continued to pursue the previously approved funding package offered by the City of East St. Louis.

The record is barren of any evidence that the representations of Smith to the Claimants were false. From the record, it is impossible to determine what steps, if any, were taken by representatives of the Respondent toward following through with the proposed private financing plan which may have been discovered by Smith. Smith resigned from the agency, and since Claimants attempts through a contact with the FBI had failed to turn up the identity or location of the private funding source with whom Smith was allegedly dealing, efforts to complete that arrangement were apparently abandoned, not only by Respondent and its department, but also by the Claimants.

Claimants’ tort claim against Respondent is predicated upon a fraud. This Court is asked to assume that the entity known as “Ulena Trust” was fictional. Claimant contends “all the investigation into the Ulena Trust, even by having an FBI man in Miami try to check it out, showed it was clearly false and known by Smith to be false, as evidenced by his superior.” The only reference to attempts on the part of Claimants or Respondent’s agents at locating the “Ulena Trust” are reflected in the transcript. Nebgen stated that he called a friend of his who was with the FBI in Miami “and asked him if he would please check and see if this Ulena Trust was registered in Florida or registered in the United States or if, in fact, it existed because we didn’t know where we were going at that point.” There is no evidence as to what the inquiry to the FBI agent produced by way of information but, when asked if Nebgen was able to learn anything at all as to the existence or location of the “Ulena Trust,” his sole reply was “No.” Respondent’s agent, Biderbecke testified that the department made no investigation as to the existence of the Miami, Florida trust.

Parties are not justified in relying on representations made, when they have ample opportunity to ascertain the truth of such representations before they act. A claimant relying on fraud must be prepared to demonstrate that he acted reasonably under the circumstances respecting the degree of diligence and prudence that a normal person would employ in protecting their own interests. In the case at bar, despite the passage of two months between the end of July 1982 and the month when Claimants first became alarmed and made inquiry of Respondents department, Claimants made no contact with Smith in an effort to be put in direct communication with those representing the “Ulena Trust,” and apparently relied entirely on Smith to make all of the arrangements for the private funding program which involved many millions of dollars. These are not the actions of reasonably prudent businessmen seeking to finance a multi-million-dollar venture. There is no evidence in the record from which it can be concluded that John Smith ever made any misstatement directly or by omission to the Claimants, or any of them. An essential element of actual fraud is the intent to deceive. Even constructive fraud, although not requiring actual dishonesty or intent to deceive, involves a breach of legal or equitable duty which irrespective of moral guilt, is legally fraudulent because of its tendency to deceive. In any event, on the record in this case, there is no proof of deception in either a constructive or actual sense. The Court is asked to “imply” that Smith had deceived the Claimants and that damages done by the Claimants to themselves in apparent reliance on Smiths statements, however imprudent, may be asserted as a ground of liability against Respondent.

Conclusion

There is no evidence in the record in support of essential elements of proof required to support Claimants’ action predicated upon the theoiy of fraud. Even if the record could be said to support the conclusion that Smiths statements made to the Claimants were false, it is doubtful that Claimants could maintain Claimants’ burden of showing their reliance over a two-month period on these assertions with no attempt on their part to make direct contact with the supposed private funding source was reasonable or in accord with any reasonably-prudent standards of inquiiy that might be expected of hopeful entrepreneurs finding themselves in the position of the Claimants in this case. Claimants speculate that Smith’s employment termination with the Respondent’s department was predicated solely on the representations made by Smith to the Claimants as revealed in the taped telephone conversation. This speculation cannot support the Claimants’ case. It is just as reasonable to speculate that Smith’s rapid departure from the department was brought about by the disclosure that he was endeavoring to provide himself with some financial gain or investment opportunity, in a situation in which he clearly had a conflict of interest, than to suppose otherwise.

Claimants do not assert that Respondent’s agency was negligent in failing to. follow Smith’s attempt to arrange private financing for the Claimants; further, Claimants suggest that their own failures, beyond the meager inquiry that they apparently made of a friend who was in the FBI, should not adversely affect their claim. It is not possible on the basis of the record in this case, for this Court to conclude that Smith’s statements to the Claimants were in the least bit deceptive, misleading or false. The most that can be said, is that Smith left the Respondent’s department, and that nobody in the department or among the Claimants made any reasonable effort to follow through and to determine if Smith’s representations were, indeed, false or whether, instead, there was a private trust who had, through Smiths efforts, committed to privately funding the Claimants’ venture.

This claim is hereby denied.

ORDER

Jann, J.

This cause coming on to be heard on Claimants’ petition for rehearing, the Court having reviewed the evidence and arguments herein finds:

Claimants’ petition is hereby denied. Claimants’ petition seeks a decision based upon speculation and conclusions drawn from facts not in evidence.


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (No. 84-CC-2613
    Gary Askew, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 23, 1995.

    Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C. (Earl W. Hubbs, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Terence J. Corrigan, Assistant Attorney General, of counsel), for Respondent,
   OPINION

Raucci, J.

Claimant seeks judgment in the sum of $100,000 as a result of physical injuries sustained by him while a resident of the Illinois Department of Corrections. He contends that the department negligently failed to protect him, and that as a proximate result thereof, he was injured.

He testified that he had been housed at the Menard penitentiary for a couple of months before he was injured. On October 18, 1983, he was going to breakfast and stepped out of his cell. Other prisoners were coming down the gallery because the doors were open. He took a couple of steps from his cell and was struck and stabbed. He was escorted to the hospital. He was stabbed twice behind his left shoulder, under the eye, and on the forehead. He also contends that he was hit over the head with a bar and that his head was split. He crushed his finger in defending himself.

The gravamen of the claim is that the Claimant tried to alert prison officials to the fact that he feared for his life and that he was in danger because he was going to testify against certain other individuals who had “connections” in the prison. Claimant was offered placement in the protective custody unit which he refused.

No evidence in the record identifies the Claimant’s attackers although one name is contained in a collection of inmate statements. No evidence was offered that Claimant had identified that individual as someone he feared.

The State is not an insurer as to the safety of inmates. Foreseeability of the potential for harm is a necessary element which must be proved by a preponderance of the evidence. What is foreseeable necessarily must be judged by the facts in each case, and by taking judicial notice of the prison environment. Petrusak v. State (1987), 39 Ill. Ct. Cl. 113, 114.

Claimant argues that the Respondent had knowledge because he had told prison officials that he feared for his safety. His fears pertained to individuals who might in the future be potential enemies being housed at Menard. However, he declined protective custody which was offered.

His generalized fears, however, are not a basis for recovery. His claims to the contrary, he never identified specific individuals to prison officials. Claimant had sought to be transferred to a Federal institution or to another State. Such options were not available. Respondent could easily construe Claimants declination of protective custody as an indication that Claimant did not seriously fear danger to his person.

Finally, there is no evidence that Claimant suffered injuries from known enemies or their agents.

The claim should be denied.

It is therefore ordered, adjudged and decreed that this claim be, and it is hereby, dismissed with prejudice.


author: Mitchell, J.

text:
    (Nos. 84-CC-2692, 84-CC-2693 cons.
    William Immordino and Bongi Cartage, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 23, 1995.

    Michael R. Panter, for Claimants.
    Jim Ryan, Attorney General (Colleen McClosky von Ohlen, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

These claims were brought by William Immordino and his employer, Bongi Cartage Company, as a result of an incident which took place on April 4, 1983. In addition, a petition to intervene has been filed on behalf of the Bituminous Casualty Corporation, the workers’ compensation carrier for Bongi Cartage.

On April 4, 1983, the Claimant was employed as a truck driver for Bongi Cartage Company. On that date it was Mr. Immordino's responsibility to take loads from a construction site located at Addison and Rockwell, Chicago, to a location in Elk Grove Village. At approximately 10:30 a.m., he left the Chicago site with his second load of the day, entering the Kennedy Expressway at Belmont. In order to stay on the Kennedy, he was required to move into the left lanes. As he crossed from the second lane into the third lane, his vehicle struck a pothole and he lost control of the truck. The tractor-trailer rolled on its side and slid down the Kennedy Expressway causing injuries to Mr. Immordino and damage to the vehicle.

The State of Illinois contends that it lacked notice of the pothole and, therefore, is not responsible for the accident. Additionally, the State believes that the Claimants were not injured to the extent claimed.

There is little dispute that a pothole was a cause of this mishap. Not only did Mr. Immordino testify that he observed the pothole as he attempted to change lanes, but the Claimants’ evidence also included the testimony of the driver of the vehicle immediately behind Mr. Immordino. Mr. Alan Underwood of Gurnee, Illinois, was driving northbound on the expressway behind Mr. Immordino’s vehicle. He testified that he saw the truck’s cab swerve to the left and then go to the right and that the back tire of the trailer went way up in the air on one side and he observed a big chuck hole which he had to straddle as he drove further north. He observed the truck start to fishtail, go out of control and turn over on its side. He describes the chuck hole as being “damn big.” He further identified Claimants’ Exhibit No. 1 for identification as an accurate depiction of the hole he saw on the day of the accident. Plaintiff also called a Mr. Flipello who testified that his examination of the truck revealed a crack in the left rear spring. The function of the rear spring is to hold the axle in place and a crack would create an impossible situation for the driver to control the tractor-trailer. Mr. Dennis Mahoney, an employee of the Illinois Department of Transportation, testified that the chuck hole in question appeared to have been patched at some earlier point and that the cold patch did not stick but he had no idea when the cold patch material had been placed in this particular pothole. He also testified as to the frequency and routine with which the department inspects the Kennedy between O’Hare and the Eisenhower and the number of crews involved in such inspections. He further testified that before this incident occurred, no one had called the department’s attention to the particular hole in question. Further, during winter months temporary cold patch was placed in these types of holes until the weather changed. Permanent repairs could only be made in warmer weather.

This Court has consistently held that for recovery as a result of an injury suffered in a road defect case, it must be shown that the defect was substantial enough and must have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or, in the alternative, that warning signs should be posted. (Stege v. State (1971), 27 Ill. Ct. Cl. 399.) Careful examination of this record reveals that the pothole which caused this accident had previously been patched by the State in an attempt to avoid this type of incident. There is unfortunately no evidence to indicate when, who or how this patching had been done, but there is evidence that these patch jobs were only temporary and their duration would be effected by weather, traffic conditions, snow plow operations, location and durability.

The State must have either actual or constructive notice of the defect. (Aetna Casualty and Surety Co. v. State (1984), 37 Ill. Ct. Cl. 179, 181.) The Court believes that the State of Illinois did have constructive notice of the existence of a pothole and was negligent in maintaining the repairs to that pothole.

The Court believes that fair and reasonable repairs to the truck was the amount of $13,501.03. Mr. Immordino had medical expenses of $8,273.99 and lost wages of $8,260. The evidence as to any permanency was minimal; however, the Court does believe that obviously there was some pain and suffering of which some compensation can be entered.

Therefore, the Court awards $13,501.03 to Bongi Cartage for property damage and awards $31,534 to William Immordino for personal injuries. Pursuant to the stipulation of the parties, the Court enters an order acknowledging a lien of Bituminous Casualty Corporation in the amount of $13,298.35, which represents 75% of the $17,731.14 which Bituminous had previously paid to Claimant, William Immordino.


author: Patchett, J. Patchett, J.

text:
    (Nos. 84-CC-3194, 86-CC-1254 cons.
    Richard Black, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 19, 1993.

      Order filed February 8, 1995.

    Richard Black, pro se, for Claimant.
    Jim Ryan, Attorney General (Phillip J. Robertson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim seeks recovery against the Department of Corrections for the States alleged violations of section 3— 11 — 1(a) of the Unified Code of Corrections (730 ILCS 5/3 — 11—1(a)), which provides for furloughs for people who are committed to the Department of Corrections.

At the time of occurrence complained of herein, both Claimants were inmates at Stateville Correction Center, Joliet, Illinois. They made requests for furloughs pursuant to the statute cited above, for the purpose of attending their brothers wake. The furlough was granted, and the inmates were advised of the conditions of that furlough before their departure. Those conditions included a charge of $74 to cover the necessary expenses for correctional officers to accompany the inmates on the furlough, and the fact that the inmates were to have close supervision and constant restraints.

The inmates left the institution for the funeral furlough on May 17, 1982. On May 16, 1984, the Claimants filed a complaint against the Department of Corrections seeking $20,150 in total damages. A hearing was held June 7, 1988, before a Commissioner of this Court at which only Claimant Holice Black appeared. He offered no additional testimony, but simply reasserted the allegations stated in the complaint.

Those allegations set forth in the complaint are as follows:

Count One

Claimants contend they were wrongfully denied furlough and seek $10,000 compensation.

Count Two

Claimants contend they were improperly charged $74 in travel expenses.

Count Three

Claimants allege they were unnecessarily shackled and accompanied by guards.

The evidence is clear and undisputed regarding this claim. Claimants were granted resident furloughs, and left Stateville for the purpose of the wake on May 17, 1982. The allegations as to the denial of the furlough are without basis and are therefore denied.

The Statute cited above provides in part as follows:

° ° The Department may make an appropriate charge for the necessary expenses of accompanying a person on furlough ° “ 730 ILCS 5/3 — 11— 1(a).

Charges in this case were based on the need for two officers to accompany the Claimants for one-half day each at $55 per day plus 100 miles at 19 ($.19) cents per mile. The charges assessed were appropriate and reasonable. Therefore, the claim for reimbursement of the furlough expense is denied.

The Department of Corrections determined that the Claimants could have a furlough, but they should be under close supervision and in constant restraints. This decision is clearly within the authority of the department, and reasonable in light of the fact that Claimants were convicted of murder and armed robbery.

The complaint alleged mental distress; however, it failed to allege any physical impact or symptom as a result thereof. This Court has ruled previously that there will not be recovery for mental distress without physical manifestation. (Macon v. State (1986), 37 Ill. Ct. Cl. 326, 327.) Therefore, the claim as a result of being shackled, is denied, as well as recovery for alleged mental distress.

For reasons stated above this claim is denied.

ORDER

Patchett, J.

Claim 84-CC-3194 sought recovery against the Department of Corrections and the State of Illinois for alleged violations of section 3 — 11—1(a) of the Unified Code of Corrections (730 ILCS 5/3 — 11—1(a)), which provided for furloughs for people who are committed to the Department of Corrections.

Originally this claim was filed by two brothers, Richard Black and Holice Black. A hearing was held, and Holice Black testified. Based on that testimony, this Court entered an order on October 19, 1993, denying recovery as to both Claimants.

In April 1994 this Court granted Claimant Richard Blacks motion to vacate. This was granted because his claim had been denied without Mr. Black being able to appear and present testimony on his own behalf. The Court remanded the case to a Commissioner of this Court to conduct a hearing for Mr. Black.

On October 12, 1994, a Commissioner of this Court appeared at the Pontiac Correctional Center, Pontiac, Illinois, to conduct a hearing. Proper notice had been sent to Mr. Black. An employee of the Department of Corrections indicated to the Commissioner that Mr. Black refused to appear. The State then called Sgt. Reider who testified that she was an employee of the Department of Corrections. She further testified that on October 12, 1994, she was assigned to the visiting room. All inmates receiving visitors or court appearances had to proceed through her security “shake down” room.

Sgt. Beider testified that Richard Black, despite having been given several opportunities, refused to proceed through the security channels. Sgt.. Beider further testified that officer Gerber advised Mr. Black that if he refused to proceed through security and appear in court, his claim might be jeopardized. The Claimant persisted in his refusal to go through the security check.

Illinois Court of Claims Regulations state as follows:

“A case may be dismissed for want of prosecution where the Court determines that the claimant has made no attempt in good faith to proceed.” (74 Ill. Adm. Code 790.260)

Because the Claimant has not made a good faith attempt to proceed, we are hereby dismissing case No. 84-CC-3194 for want of prosecution.

Mr. Black also had a claim for alleged property loss in case No. 86-CC-1254. This claim was also set for trial on October 12, 1994. As previously indicated, Mr. Black refused to appear before the Commissioner of this Court. This case is consolidated with No. 84-CC-3194 for the purposes of issuing this order. Case No. 84-CC-3194 is also dismissed for want of prosecution.


text:
    (No. 85-CC-0323
    Tom A. Eudaley and Tim W. Eudaley, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 10, 1995.

    Heiligenstein & Badgley (Thomas Heiligenstein, of counsel), for Claimants.
    Jim Ryan, Attorney General (Claire E. Taylor, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

Claimants, Tom A. Eudaley and Tim W. Eudaley, seek damages from Respondent, State of Illinois, for personal injuries sustained by each in a motorcycle accident which occurred on May 16, 1984, in the eastbound lane of Interstate 70 at the 16.5 mile marker.

Tom Eudaley was operating his motorcycle in an easterly direction on 1-70 with his brother, Tim, as a passenger. He was traveling in the median lane. The motorcycle struck a hole, and went out of control, causing the Claimants to be thrown to the pavement. Claimants were injured and received medical treatment. The motorcycle was destroyed.

Tom Eudaley contended that on the date in question, he and his brother had been visiting his sister in St. Louis and were returning home. Traffic was heavy and the motorcycle was being operated in the passing or median lane. Tom was operating the motorcycle at 55 m.p.h. Tom noticed that the truck ahead of him had picked up dust and Tom noticed the flash of the trucks brake lights. Tom thought the truck had a blowout because he saw the smoke and “stuff.” The motorcycle struck a hole in the pavement with a lot of chunks of concrete laying around.

Claimant, Tim Eudaley, contended that he saw the truck and white smoke. Tim thought a tire had blown and “didn't know what it was.” Tim claimed that when the motorcycle hit the hole, he was thrown off the bike. After the accident, Tim looked back at the hole and was shocked to see how deep “one part of it was.” He testified that a big chunk of concrete was gone, and that the hole was a good eight inches deep all the way down to the iron bar. Tim saw the iron bar. He also stated that he had operated a car eastbound on 1-70 a week earlier and had not seen the hole.

Trooper Ellis investigated the accident. He observed the hole in the pavement being approximately 5 feet by 5 feet and 10 inches deep. The motorcycle received extensive damage. Ellis saw rocks, pebbles and asphalt lying around the hole, but not large chunks of concrete. Ellis reported the pavement damage to the Department of Transportation. Ellis stated that the hole was located in the passing lane. The motorcycle was 450 feet away from the hole.

Phillip Schneider, a Department of Transportation employee with the bureau of maintenance, maintained that he acquired knowledge of this accident on the following day or the day after in the course of his discussion with his immediate supervisor, field engineer Ponce. Ponce told Schneider that there was a pavement blow-up. Emergency repairs had been made on the evening of the 16th and permanent repair of the site was made a couple of weeks later. Schneider recounted that work crews are sent to that stretch of Interstate 70 “one or two times in the year, if then,” but there had been ongoing repairs done on that stretch of Interstate 70 during the spring of the year when the accident occurred. At the time of the accident, routine repairs were going on in the general vicinity of this accident “a couple of miles east in that area.” Schneider traveled this portion of 1-70 during the times that repairs were being made. He related that based upon the description of the hole, he would have noticed it. If he had heard of such a hole, an immediate response to repair it would have been made. Schneider traveled 1-70 in that area two or three times a week during the spring of the year.

J. Robert Ponce, a maintenance field engineer with the Department of Transportation, recounted that he was working on the day of the accident. He was called at home by a Department of Transportation radio dispatcher who advised him of the pavement problem at mile marker 16 that needed attention. Ponce called a foreman to go and make whatever repairs were necessary. A “blow up” is a buckling or a traumatic occurrence of the pavement which usually happens in the warm time of the year, summer or spring months. This condition occurs from heat and moisture causing stress on the pavement which causes it to raise up or blow out. Ponce stated that the Department of Transportation can, in some seasons or some summers, “account for maybe 20 of these.” A need study is the only formal procedure for inspecting the roadways other than normal traveling to and from different locations for road business. Ponces opinion that this was a “blow up” was based on what the repair crew told him and his observations of the area where he observed a “slight hump” and “the heavy part of it.” The hump referred to by Ponce was approximately 2-3 inches higher than the normal elevation of the pavement and spread out over an area of 3-4 feet wide. Ponce reported that there is no way to predict where a concrete blow up will occur. Blow ups have occurred at temperatures around 70 degrees. The concrete at the location in question was of a type known as continuously reinforced concrete pavement that has heavy reinforcing steel through the center of it which takes up expansion and contraction. Ponce stated that it was his experience that there are fewer blow ups on this type of pavement than on the type of pavement with expansion joints.

Harry E. O’Connell stated that he was an eyewitness to the accident in question. In his travels to and from work, Mr. O’Connell travels Interstate 70 at the location of the accident returning from work each day, and was traveling that same route on the day of the occurrence. O’Connell was in the driving lane and there was an 18-wheeler and two or three cars behind it, and then the two boys on the motorcycle. O’Connell guessed he was about a quarter of a mile behind the track. He guessed that the truck hit the bad spot in the pavement and threw up a white powder or dust. O’Connell thought he had dropped a sack of flour. O’Connell then saw a concrete piece rolling under the track’s wheels, and that the pavement had been torn up. O’Connell stated that he knew that the boys on the motorcycle could not see that because their vision was restricted by the track and by the two cars following the truck. O’Connell saw the accident coming and knew what was going to happen. When the boys on the motorcycle hit the spot in the road, they started fish-tailing on the road and lost control. The truck had caused pieces of concrete to roll under its wheels. O’Connell described the hole as being half the size of a table to a full-size table. He stated that the chunks of concrete may have rolled off to the shoulder, but he could not remember. O’Connell believed that particular stretch of 1-70 was “terrible” and that it seemed like the area was always subject to potholes and busted up pavement, but on his previous trips he did not recall seeing anything in the same area where the accident occurred that would appear to be similar to what he saw the evening after the accident.

The issue is whether or not Respondent, State of Illinois, had actual or constructive notice that a hazardous condition existed in the median lane eastbound 1-70 at the 16.5 mile marker. The State owes a duty to all users of the highways to maintain them in a reasonably safe condition. (Berry v. State (1968), 26 Ill. Ct. Cl. 377.) Claimants must show that the State had actual or constructive notice of a defect in order to recover on a negligent highway maintenance claim. Piggott v. State (1968), 26 Ill. Ct. Cl. 262.

Respondent contests the existence of either actual or constructive notice. This Court has consistently held that each case involving constructive notice must be decided on its own particular facts. (Bugle v. State (1967), 26 Ill. Ct. Cl. 173.) In Wagner v. Illinois (1978), 32 Ill. Ct. Cl. 50, this Court denied recovery where the decedent lost control of his motorcycle on account of loose gravel on an interstate highway ramp. This Court found no evidence of actual notice in the testimony. Knowing that the State may be charged with constructive notice where, through the exercise of due diligence, a condition should have been discovered, this Court found that there was no evidence on how long the gravel had been lying on the pavement, and thus, no constructive notice. In the instant case, there was no testimony that the hole or the buckling of the highway was seen at any time before the day of the accident. State employees had routinely observed the section of highway in question. No hole or buckling was seen. After receiving actual notice of the condition as a result of the accident, the State made temporary repairs to the highway immediately.

There is no evidence in this record to indicate that the Respondent, in the exercise of reasonable care and diligence, should have known of the condition which caused the accident. This Court cannot conclude that the defect in this case existed for a sufficient period of time to be discovered by the State.

Wherefore, it is hereby ordered that this claim is denied.


author: Sommer, C.J.

text:
    (Nos. 84-CC-3228, 84-CC-3398, 84-CC-3565, 84-CC-3602, 85-CC-0001, 85-CC-0137, 85-CC-0197, 85-CC-0208 & 85-CC-0355 cons.
    The Counties of McLean, Livingston, Tazewell, Kane, Woodford, Stephenson, DeWitt, Lake, and DeKalb, Claimants, v. The State of Illinois, Respondent.

      Opinion filed December 23, 1994.

    Ronald C. Dozier, for Claimant McLean County; Ronald Bernardi, for Claimant Livingston County; Bruce W. Black, for Claimant Tazewell County; J. Patrick Jaeger, for Claimant Kane County; G. Patrick Riley, for Claimant Woodford County; Charles R. Hartman, for Claimant Stephenson County; Stephen H. Peters, for Claimant DeWitt County; Fred L. Foreman, for Claimant Lake County; T. Jordan Gallagher, for Claimant DeKalb County.
    Roland W. Burris, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

These nine counties have requested reconsideration of an order in which this Court pro-rated to them the amount of money remaining in the relevant appropriation and denied the balance of their claims for lack of appropriated funds. Because the legal issues in all nine claims are identical, we will select the first such claim, McLean County v. State (84-CC-3228), as an example of the factual scenario typical to these claims.

McLean County seeks an award for one hundred two thousand eighty-eight dollars and thirty-two cents ($102,088.32) as reimbursement pursuant to former section 7 — 5 of the Juvenile Court Act of August 5, 1965, now codified at 705 ILCS 405/6 — 10 (formerly Ill. Rev. Stat. ch. 37, par. 707 — 5), for sums which it expended for the care and support of juveniles ordered to be placed in shelter care by the judges of its circuit court.

After the Department of Children and Family Services (hereafter “DCFS”) audited McLean County’s claim, it determined that the proper dollar amount was slightly less than that sought:

FISCAL YEAR AUDITED AMOUNT

1982 $ 5,025.39

1983 44,739.86

1984 47.149.71

TOTAL $96,914.96

Nonetheless, DCFS was unable to pay these audited sums because it had expended more than the appropriations made to it by the General Assembly and only had a total of $13,670.69 in funds remaining to apply to McLean County’s claim as well as to the aggregate $344,194.72 in similar audited claims made by the eight other counties. Accordingly, this Court pro rated the total $13,670.09 in available DCFS funds to each of the nine counties. McLean County’s share was $2,762.80, slightly less than 3% of its audited total claim.

Thereafter, all nine of the counties asked this Court to reconsider its decision, arguing that some language taken from a 1917 Illinois Supreme Court decision authorized this Court to award the full amount of their claims. The case which the counties cited is Fergus v. Brady (1917), 277 Ill. 272, 115 N.E. 393. Because a thorough understanding of the Fergus opinion is crucial to its application in these proceedings, we will begin our analysis with a review of the record from the Fergus litigation.

I. Background drawn from the supreme court record in Fergus v. Brady, No. 11147.

This case originated in Sangamon County Circuit Court (general no. 31721) on July 9, 1915, when the complainant (Fergus), a taxpayer, sought an injunction against tire state treasurer (Russel) which was later amended to include the state auditor (Brady) as an additional party defendant.

In pertinent part, Fergus objected to $408,823.87 in so-called “deficiency bills” passed by the 49th General Assembly which made additional appropriations to various state offices for the amounts by which they had exceeded or otherwise spent above and beyond the funds previously appropriated to them by the 48th General Assembly. There were 14 such deficiency appropriations which were the subject of Fergus’ suit:

Fergus maintained that these deficiency appropriations were unconstitutional for numerous reasons, including: (1) they exceeded the revenue of the State authorized to be raised by taxation during the period ending September 30, 1915; (2) the appropriations attempted to grant additional and extra compensation, fee, and allowance, without express authority of law, and after service had been rendered and after contract had been made; and (3) because the various offices of the State government had exceeded their authority in purchasing supplies and employing personnel and otherwise becoming obligated, the heads of such departments as public officers thereby then and there became personally responsible for the sums, and the deficiency appropriations by the State to pay these bills was an attempt upon the part of the State to assume the now personal debts and liabilities of such public officials.

The trial court rejected Fergus’ arguments and held: (1) that the term “revenue” included all revenue from any source; and (2) that the deficiency appropriations were constitutional and legal.

II. Synopsis of the supreme court’s opinion in Fergus v. Brady as correlated to the trial court record.

The supreme court affirmed the trial court’s construction of the term “revenue” and held that deficiency appropriations are constitutionally permissible for State expenditures which were within the direct, definite, and explicit scope of the “particular and specific” mission of the State officer or department involved. (277 Ill. at 278-280, 115 N.E. at 396.) As an example of an expenditure deemed constitutionally worthy of a deficiency appropriation, the supreme court cited in dicta one of the appropriations which the 49th General Assembly had made to the Southern Illinois Penitentiary:

“The authorities in control of the penitentiary are required by law to receive, feed, clothe, and guard prisoners convicted of crime and placed in their care, involving the expenditure of money, which may vary on account of the cost of clothing, food, and labor beyond the control of the authorities, and which could not be accurately estimated in advance for that reason or by determining the exact number of inmates.” 277 Ill. at 279; 115 N.E. at 396.

Because the penitentiary dicta was selected by the supreme court as its benchmark for a constitutionally permissible deficiency appropriation and was later looked to by the Court of Claims to develop its own Fergus doctrine, some additional scrutiny of that appropriation is warranted. The Southern Illinois Penitentiary’s deficiency appropriation amounted to $19,035.50. Of that sum, a total of $13,750.72 had been granted by the auditor and paid by the treasurer prior to the initiation of Fergus’ suit, and there remained $3,783.37 in unpaid and outstanding warrants drawn against the deficiency appropriation, detailed in part as follows:

The record does not provide an itemization of the $13,750.72 previously paid, but recites that it was for generally similar expenses:

“to engage and employ a large number of clerks, assistant wardens, keepers, engineers and other servants”; and
“to contract with various persons and for numerous articles and supplies and to obtain services from various corporations and individuals, including contracts for office supplies, printing, stenographic services, express and other matters.”

Thus, these are the sort of expenditures which the supreme court considered to be within the direct, definite, and explicit scope of the “particular and specific” mission of the Southern Illinois Penitentiary.

III. The Fergus doctrine as articulated in the Court of Claims.

Although the supreme court’s opinion in Fergus v. Brady clearly stated that it was the legislature which possessed the constitutional authority to make deficiency appropriations, our predecessors on the Court of Claims used the supreme court dicta concerning the Southern Illinois Penitentiary’s deficiency appropriation to evolve a doctrine through which the Court of Claims either awarded or denied claims stemming from deficiency expenditures of various state agencies'. All of these “pseudo-Fergus” claims, it must be emphasized, related to expenditures not addressed by deficiency appropriations from the General Assembly; rather, the “pseudo-Fergus” claimants bypassed the legislature and came directly to the Court of Claims. The Court, in turn, then compared each claim against the prison dicta in Fergus to reach conflicting, seemingly irreconcilable results. Examples abound, but four cases from the Court of Claims are noteworthy for the problems caused by this doctrine of the Court s own creation:

(1) Beane v. State (1976), 31 Ill. Ct. Cl. 155: After the Fair Employment Practices Commission had exhausted both an original appropriation as well as a deficiency appropriation, its hearing officers and court reporters brought claims for the remaining $13,737.19 not covered by the two appropriations. Following five pages of discussion of the Court of Claims' prior applications of Fergus, this decision turned on a single inquiry which was summarily answered in the affirmative:

“Was the obligation under ° ° ° the Fair Employment Practices Act analogous to the situation where the prison officials had no choice but to feed, clothe, and house the prisoners assigned to their care?" We believe that they were. 33 Ill. Ct. Cl. at 161.

Awards were made.

(2) Kankakee County Sheriff’s Police Department v. State (1979), 33 Ill. Ct. Cl. 276: These claims were for expenditures which the sheriff had made for travel to other jurisdictions to return fugitives for prosecution. As with all “pseudo-Fergus” claims, there were insufficient funds remaining in the appropriation to reimburse the sheriff. In an opinion reciting verbatim much of Beane’s discussion of the Fergus doctrine and its progeny, the Courts analysis again was based on a summary comparison to the prison dicta:

° ° This Court is of the opinion that the decision to incur the [extradition] expense for which claim is here made is discretionary and not analogous to the situation where the prison officials had no choice but to feed, clothe and house the prisoners assigned to their care. It would therefore follow that the claims should be denied." 33 Ill. Ct. Cl. 281.

(3) Clifton F. Hall, M.D. v. State (1979), 35 Ill. Ct. Cl. 1: This claim was initially reported at 33 Ill. Ct. Cl. 364 as an unpublished opinion but then was later published in volume 35. The doctor had rendered $314 in medical services to inmates at the Stateville prison. The Court repeated large portions of its Fergus discussion from Beane and summarily commented that the doctors services were “in line with the example set out by the Illinois Supreme Court in Fergus v. Brady.” (35 Ill. Ct. Cl. 9.) However, in reaching its decision, the Court carefully avoided Fergus and went on to rely on the State Finance Act. The Court found that the particular appropriation at issue had not been exhausted and held that sufficient funds actually remained available to pay the doctor’s claim.

(4) Eastern Cyclone Industries, Inc. v. State (1984), 37 Ill. Ct. Cl. 197: This claim related to laundiy equipment installed at a State hospital for which, as always, insufficient funds were appropriated. The Court reiterated portions of its Fergus doctrine discussion as originally set forth in Beane but began to realize the constitutional infirmities inherent in the Fergus doctrine:

«o o = For us t0 make an award 0 ° ° could only be described as making a deficiency appropriation and a usurpation of the legislative prerogative.
° ° ° [The Fergus] exception ' ‘ ' is extremely narrow and must be cautiously applied.” 37 Ill. Ct. Cl. at 204.

However, in resolving the Fergus issues against the claimant, the Court chose to attempt to articulate clearer standards for the doctrine instead of invalidating it altogether:

“Authorization for virtually every expenditure of State funds can be traced to a statute or an inference to be drawn from [a] statute. The question is often one of degree. The situation here ° ° * we do not feel, rises to the level described in Fergus, supra. The obligation should contain the same element of need and exigent circumstances or at the very least be a clear and unequivocal directive to pay or incur an obligation. ° * °
We cannot make an award ° ° ° despite the obvious equities in favor of the Claimant under the facts of this case. To do so would be to condone irresponsible overspending by State agencies.” 37 Ill. Ct. Cl. at 205-206.

The Court dealt a glancing blow to the Fergus doctrine which for a decade now has begged the constitutional question.

IV. Is the Fergus doctrine, as utilized by the Court of Claims, a constitutionally invalid usurpation of the General Assembly’s prerogative to make deficiency appropriations?

The following colloquy between the Court and counsel for one of the other counties having a similar claim for partially-unfunded DCFS shelter care expenses frames the issue:

“Judges Poch: The legislature appropriates the money.
[Tazewell County attorney]: That's correct, Judge.
Judge Poch: And you are now asking the Court to set an amount for the legislature to pay?
(Tazewell County attorney]: That is pursuant [to Fergus v. Brady]
Judge Poch: They first have to legislate. They have to appropriate ° °
Judge Patchett: How is it any different [from] a child [who] is a ward of the State [and receives] Public Aid, for instance? [We] have thousands of claims that come in for public aid where a child is taken to a hospital or somebody is given medical treatment, and the claim comes through here, and we order it paid out of appropriated funds or funds that have funds. But what if the Public Aid Department didn’t have any money appropriated sufficient to handle that medical claim? We would have to deny the claim, I think ” °
Do you follow me? We can really run into a hundred million dollars. If the State runs out of money, and they only appropriate so much, [and] the Public Aid Department places $100 million [more] for medical care than the legislators appropriate, how would this Court order the State to pay that? It can be projected well beyond this one little problem [of your county] “ °
I don’t see how we can continually tell [the General Assembly that] they have to pay money after they refuse to appropriate sufficient funds.
[Tazewell County attorney]: I believe the legislature [put sufficient safeguards in the shelter care statute to avoid ‘rampant overspending’] because they recognized that they are dealing with an area that cannot be accurately forecast as far as expenditures. They know they can’t predict how many minors are going to be detained and placed [in shelter care] during any given year.
Judge Patchett: The legislature did a good job in doing all that. But the legislature consistently refuses to [properly fund] their own statute[s]. And, you know, maybe that is a political decision. They made a political decision when they passed the statute and they make a political decision each and every time they don’t appropriate sufficient money [to fund it].”

Indeed, as Judges Poch and Patchett correctly inferred, the Constitution of 1970 unilaterally gives the General Assembly the authority to make deficiency appropriations. Two portions of Article VIII, read in conjunction with section 30 of the State Finance Act, mandate such a result:

“The General Assembly by law shall make appropriations for all expenditures of public funds by the State. ° ° °” Constitution of 1970, Article VIII, section 2(b).
“The State 0 * ° shall ° 0 ° make payments from public funds only as authorized by law 0 ° Constitution of 1970, Article VIII, Section 1(b).
“No officer, institution, department, board or commission shall ° ° ° assume to bind the State in an amount in excess of the money appropriated 0 ° 30 ILCS 105/30.

Thus, the Court of Claims Act cannot confer jurisdiction to make deficiency appropriations, for that is a function which is exclusively within the legislatures domain. See also, Illinois Education Association v. State (1973), 28 Ill. Ct. Cl. 379, 386.

Interestingly, in Mr. Fergus’ arguments to the Illinois Supreme Court back in 1916, he warned of the fiscal evils which could result from a failure to properly construe the Constitution:

“[Opposing] Counsel in their brief have laid much stress upon an inevitable calamity which would befall the State if the prison officials were not allowed to go in debt for supplies. [T]hey draw a terrible picture of murderers, robbers, and thieves who are turned loose to prey upon the public. This is the old argument so often made — the hard case which would make bad law. The court is asked to legislate to change the Constitution to meet a contingency.”

In Chicago v. McDonald, 176 Ill. [404,] 409, [52 N.E. 982, 983 (1898)] the court said:

“The question has frequently arisen whether a municipal corporation can incur an indebtedness in excess of 5 percent of its taxable property for necessary supplies, such as light and water.”

The argument there presented was that the city could not exist without light and water, but the court said:

“To so construe the Constitution would be to add a provision in the nature of an exception to the Constitution, which the framers of that instrument did not see proper to insert.”

We note that little is said in the argument concerning the appropriations to the [thirteen] other departments of the state government. Counsel do not find a great calamity if the insurance superintendent, or other officers, are not allowed to incur debts. We do not believe it is possible to draw a distinction between one class of over-buying and another class. Under the Constitution, they are all right or all wrong. If they are all right, then every public official has a legal right to secure as much credit as he desires, and the legislature has full power to make [deficiency] appropriations for any of these debts, and the State of Illinois will never at any time know the nature or extent of its outstanding obligations.

Similarly phrased in terms of the Fergus doctrine which has evolved in the Court of Claims, one would logically conclude that, if the doctrine were constitutionally sound, no proper distinction could be drawn between one class of deficiency expenditure and another class. In other words, if it could have been permissible under Fergus for the Court of Claims to award a deficiency appropriation to a penitentiary for such sundry items as lawn mower repairs, postage stamps, a florist, and a gardener (see pages 7-8 above), how then could this Court possibly deny reimbursement of a county sheriffs expenses in returning fugitives for prosecution or deny a State hospitals laundry equipment expenses? Or, to use the better hypothetical posed by Judge Patchett, how could this Court differentiate the $100 million medical expense deficiency from McLean County’s $96,914.96 shelter care expenses? The obvious answer is that if any one such deficiency expenditure were proper, all would have to be proper, and no restraint could be imposed by this Court on a department or agency’s disregard of its budgeted appropriation.

The law, thankfully, is otherwise. The Constitution gives the General Assembly — not the agencies, not the departments, and not even the Court of Claims — the exclusive authority to exercise its discretion in determining whether to make deficiency appropriations and, if so, in what amounts. True, those who deal with State offices which exceed appropriated expenditures may find themselves becoming involuntary, unpaid creditors of those agencies. But that is what the Constitution allows. That is the very protection which the Constitution provides to control against overspending, and it is not for this Court to re-draft the Constitution.

V. Conclusion.

The Court of Claims’ Fergus doctrine is a constitutionally infirm principle which had its origin in nothing more than dicta taken out of proper context. As such, the Fergus doctrine never should have been adopted, and it is hereby abolished. This Court’s practice of referring deficiency appropriation claims to the General Assembly is the only constitutionally-proper procedure.

Accordingly, the Court finds that it does not have subject matter jurisdiction to award any sums beyond the $13,670.69 in pro-rations previously made to these nine counties. It is ordered that the motion to reconsider is denied. Should these nine counties choose to approach the General Assembly for a deficiency appropriation, we find the net dollar amount of their deficiency to be $427,438.99 ($441,109.68 DCFS’ aggregate audited total less the $13,670.69 awarded by this Court’s previous order).

       Entered in Woodford County v. State, 85-CC-0001 (Cons.).

       The other counties' claims are:

       Fergus separately objected to other appropriations which were part of an Omnibus Bill. Since tire Omnibus Bill was not related to the 14 deficiency appropriations, it will not be examined in this discussion of Fergus’ litigation.

       However, the trial court did sustain Fergus’ objections to the appropriations made in the Omnibus Bill and enjoined their payment. The appeal to the supreme court was filed by the auditor and treasurer as to those items, and Fergus took a cross-appeal on the 14 deficiency appropriations which the trial court had upheld.

       It should be noted that these pro-rations were made prior to this Court’s adoption of the first-in/first-out (“FIFO”) policy set forth in Aurora College v. State (1985), 37 Ill. Ct. Cl. 321, 323 and that lapsed balances are no longer pro-rated among all claimants. In denying the instant motion to reconsider, the Court is not in any manner reversing its policy as articulated in Aurora College.


author: Per Curiam. Holderman, J.

text:
    (No. 85-CC-0001
    The Counties of De Kalb, De Witt, Lake, Livingston, McLean, Stephenson, Tazewell, Kane and Woodford, Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 15, 1985.

      Order filed June 17, 1985.

    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Per Curiam.

The record in this cause indicates that this is a lapsed appropriation claim. The Attorney General has submitted a Respondent’s stipulation based upon a report of the Department of Children and Family Services.

The purpose of the expenditure was for amounts due the respective counties pursuant to section 5 — 5 of the Juvenile Court Act, providing for State reimbursement of funds (Ill. Rev. Stat. 1985, ch. 37, par. 705 — 5), regarding care and support of dependent children placed in shelter care by the county courts. These were properly authorized expenditures.

Unfortunately, the departmental report indicates that there were insufficient funds remaining in each fiscal year appropriation to pay these claims. There are nine counties claiming $441,109.68 against $13,670.66 remaining in the appropriation. There were no funds remaining for fiscal year 1984.

The Department of Children and Family Services has audited and pro rated these claims, and their results are attached to this order, along with the appropriation numbers. Precedent for pro rating funds in this manner is found in the case of Board of School Inspector for the County of Peoria v. State, 12 Ill. Ct. Cl. 17. This Court agrees that this is the proper manner for payment of these claims, as to pay the entire amount requested by each county would be deficiency appropriation which is the realm of the Legislature and is both constitutionally and statutorially prohibited for this Court.

It is hereby ordered that Claimants be hereby awarded, in full accord and satisfaction of these claims as follows:

ORDER

Holderman, J.

This matter comes before the Court upon Claimants’ motions to reconsider and vacate the dismissal order heretofore entered by this Court and Respondent’s motion in opposition to Claimants’ motion for reconsideration.

The Court hereby grants Claimants’ motions for reconsideration and vacates the order heretofore entered by this Court. These cases are ordered set for hearing before a Commissioner.


author: Patchett, J.

text:
    (No. 85-CC-0626
    Michael Blair and Cynthia Blair, Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 30, 1994.

    Michael F. Bonamarte III, for Claimants.
    Roland W. Burris, Attorney General (Cara Lefevour Smith, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This is a claim which arose from a motorcycle accident which occurred on October 18, 1983, at the intersection of Route 43 and Route 41 in Park City, Illinois. The Claimant, Michael Blair, was driving a 1976 Honda 750 cc motorcycle north on Route 43 near the point of merger with Route 41. Randy Vogel had been driving behind Blair for over a mile in his 1979 Camaro. He testified that Blair was not speeding, weaving, or driving erratically. When both drivers started to merge onto Route 41, Vogel looked over his right shoulder to check for traffic. He looked forward again and did not see the motorcycle. He realized that it must be down. He then saw Blair on the road.

An ambulance subsequently took Blair to St. Therese Hospital where he underwent extensive medical treatment, including a frontoparietal craniotomy. Blair’s injuries included bruises, contusions, abrasions, epidural hematoma, subdural hematoma, gastrointestinal bleeding, and a fractured skull. Blair was discharged from the hospital on November 8, 1983, and continued to treat with Dr. Gamez. On February 14, 1984, he underwent cranioplasty surgery to install an acrylic plate in his skull. His medical bells totaled $30,031.35. He incurred at least $6,960 in lost wages. His wife and children had to miss work and school on various occasions in order to help him. The motorcycle which Blair was riding was a total loss. The motorcycle had a value of approximately $800.

It was stipulated that the place of the accident was owned and controlled by the State of Illinois and under its maintenance jurisdiction. There were numerous potholes and seams in the road at the point of the accident. One of the potholes was approximately three feet by two feet in size and between eight and fifteen inches deep. The pothole existed for at least two months prior to the date of the accident, and possibly as long as two years. This was established by the eyewitnesses’ testimony. There were no signs posted warning of its existence.

There is no dispute that the State has a duty to maintain its streets and highways in reasonably safe condition for the purposes for which they are intended. (Robertson v. State (1983), 35 Ill. Ct. Cl. 643. Further, the State has a duty to persons using its streets and roads to exercise reasonable care. Baren v. State (1974), 30 Ill. Ct. Cl. 162.

Vogel, the occurrence witness, testified that he was familiar with the roadway and location of the accident because he drove through that area fives times a week for almost two years. He testified that on the date of the accident, the roadway where the accident occurred was in poor condition. He further testified that the pothole which he believes Blair struck was at least three feet in size.

Michael Luff, the lieutenant of police for City Park, Illinois, at the time of the occurrence, also testified. He testified that he was familiar with the condition of the road at the accident location and the pothole in question. He testified that the condition of the pothole on October 18, 1983, had existed unchanged for at least two months prior thereto. He further stated that the pothole was eight to fifteen inches deep and approximately three feet in size. He indicated that it was located about 110 feet from the place where the pavements of Route 43 and Route 41 merge.

We find the evidence more than sufficient to establish constructive notice of a defective condition on the part of the State.

The Claimants called an expert witness, Robert Lippman. He testified that based upon review of the photographs, police reports, and depositions, the pothole was of sufficient size and depth to cause a motorcycle to lose control. He testified that its location in the middle of the lane made it very hazardous to motorcycles as opposed to automobiles.

Blair, who was seriously injured in the accident, could not remember anything about the accident. Vogel did not actually see the accident because he was looking for traffic on Route 41. The expert testified that the final resting point of the body and the motorcycle were entirely consistent of a motorcycle striking a pothole. His opinions are based upon and unequivocally consistent with the depositions, police reports, and photographs of the scene. He stated that based upon a reasonable degree of engineering and accident reconstruction certainty, the pothole was the proximate cause of Blairs accident. The Respondent produced no expert testimony to contradict Lippman s testimony. We therefore find that the pothole in question was the proximate cause of Blairs accident.

Blairs wife, Cynthia Blair, has a claim for loss of her husbands consortium, companionship, and society. She and her husband testified that she had to feed him, help him walk, bathe him, clean his open and exposed head wound, care for the children, and continue to work to support their family as a result of the accident. We award Cynthia Blair the sum of twenty thousand dollars ($20,000) for loss of consortium.

As previously stated, Michael Blair incurred medical expenses in the amount of $30,031.35 and lost wages of $6,960. We will award the Claimant, Michael Blair, the sum of one hundred thousand dollars ($100,000). However, there was testimony before the court that part of the medical bills had been paid for by the State of Illinois. Therefore, the State is entitled to a set-off as to the amount of the medical bills. The Illinois Department of Public Aid paid for all medical expenses except for $1,700. Therefore, we deduct the amount of $1,700 from $30,031.35, which leaves a balance of $28,331.35. When this amount is deducted from the award of $100,000, it leaves a balance of $71,668.65.

We therefore award Michael Blair the sum of seventy-one thousand six hundred sixty-eight dollars and sixty-five cents ($71,668.65). We make a specific finding that by deducting the sum of $28,331.35 from the $100,000, we have satisfied the States lien. The State should have no further liens against the proceeds of the award.


author: Frederick, J.

text:
    (No. 86-CC-0255
    Brian C. Burke, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 30, 1994.

    Harvey L. Warner & Assoc. (Debra I. Millman, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Lino MenCONI, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Brian C. Burke, filed his cause of action in the Court of Claims alleging a tort claim on August 8, 1985. Claimant alleged he was injured through the negligence of Respondent on Greenbay Road at or near its intersection with Ridge Avenue in Evanston, Illinois, when he struck a large pothole while traveling north on his motorcycle.

The evidence at trial indicated the collision occurred on August 13, 1984, at 5:10 p.m. Claimant was traveling northbound on Ridge Avenue on his motorcycle. The Claimant was stopped for a red light behind another vehicle prior to the occurrence. When the light changed, the Claimant proceeded northbound behind the other vehicle until Claimant hit a hole or bump in the roadway. Claimant could not see the hole or bump because he was behind the other vehicle and because the defective area was on a downhill curve which curved to the left and then straightened out. When Claimant hit the hole, he lost control and his vehicle jumped the median. The hole that Claimant believed caused the accident was measured at 15 inches long, 13 inches wide, and over 3 inches deep. Willard Alroth, a traffic engineer and Claimants expert, determined the hole had to be in existence for several weeks. Mr. Alroth opined the hole was dangerous to motorcyclists likely to use the road. It appeared that the hole was caused by asphalt material wearing away and causing a depression. City of Evanston police officer Lenart testified the accident occurred from northbound Ridge Avenue unto northbound Greenbay Road. He believed the bumps in the roadway had been there for at least four years.

Claimant sustained a broken right leg which required four surgeries. The first surgery was an internal fixation, requiring eight pins. Claimant also had plastic surgery. Claimant indicated he could not work for a year and still had pain and scars from the accident at the time of trial. He still cannot run. The Claimant was off work for 10 months due to the injury. He was earning $300 per week. The medical bills were in excess of $8,000. These bills were paid by Respondent through the Illinois Department of Public Aid. Damage to the motorcycle was approximately $1,200. Claimant sold the motorcycle for $200.

In order for the Claimant to prevail, he must prove by a preponderance of the evidence that the State had a duty to maintain the roadway, a breach of that duty, that the State had actual or constructive notice of the dangerous or defective condition, and the negligence of the State was the proximate cause of the Claimants injuries. (West v. State (1987), 40 Ill. Ct. Cl. 3.) The State of Illinois is only required to maintain its roads and highways in a reasonably safe condition, since the State is not an insurer of the safety of the user of the highways and the burden is on the Claimant to show the State had actual or constructive notice of the defect as a condition of the State being held liable. Cotner v. State (1987), 40 Ill. Ct. Cl. 70.

It is the duty of the State to exercise reasonable care in the maintenance and care of its highways in order that defective and dangerous conditions likely to injure persons lawfully on the highway shall not exist. The exercise of reasonable care requires the State to keep its highways reasonably safe. (Kraemer v. State (1990), 42 Ill. Ct. Cl. 236.) The State can delegate its duty to maintain by written agreement with any other highway authority and relieve itself of liability. Henderson v. State (1991), 44 Ill. Ct. Cl. 180.

The first issue in the case to be considered is whether the State had a duty to maintain the road where the alleged defective condition existed. If this is not the States highway, the Claimant cannot recover. The Court has scrupulously examined the record and listened very closely to the oral arguments in an effort to fairly determine this issue. It is apparent that the intersection of Greenbay, Ridge, Emerson and the Metro Railroad tracks is a veiy difficult intersection to describe. After reviewing all of the testimony, maps, photographs, and other documentation, we find that if the hole or bump was not on Greenbay Road, north of Emerson Street, then the State did not have a duty to maintain that portion of the road, but if the hole or bump was on Greenbay Road, north of Emerson Street, then the State did have a duty to maintain that roadway. The evidence appears clear that the City of Evanston either owned or had previously agreed to maintain all of Ridge Avenue at the time of Claimants accident. The parties were in substantial disagreement as to whether the hole was on Greenbay Road or Ridge Avenue.

Ronald Levine, a highway systems manager with the Illinois Department of Transportation, testified that Green-bay Road north of Emerson Street was State-owned property. He further testified that the roadway south of the north edge of Emerson Street was within the jurisdiction of the City of Evanston. Mr. Levine testified that the whole intersection of Emerson Street and roadways south were the responsibility of the City of Evanston. He also testified that Greenbay Road ends at Emerson Street. Willard Alroth,' Claimants expert witness, testified that the accident occurred south of Emerson Street. The picture taken by Alroth, Exhibit No. 3, with the hole circled appears to be a picture of a hole south of Emerson Street. James Tonkinson, the City Engineer of the City of Evanston, testified that Greenbay Road and Ridge Avenue do not intersect. He agreed that Greenbay Road terminates at the northern property line of Emerson Street. Mr. Tonkinson also testified that Ridge Avenue in the area of the accident was under the jurisdiction of the City of Evanston.

To establish the States maintenance jurisdiction, the Claimant points to his testimony that he thought he was on Greenbay Road, that Mr. Levine testified the accident occurred north of Emerson, that the city map squeezes the word “bay” after “green” at or near the disputed area, and the police report says the accident occurred on Greenbay Road at the intersection with Ridge Avenue.

Whether the State owned or had a duty to maintain a particular highway is a question of fact. We find that the proofs show that it is more probable than not that the City of Evanston had a duty to maintain the roadway in question south of the north edge of Emerson Street where it meets Greenbay Road. We also find it is more probable than not that the accident occurred south of the north edge of Emerson Street. Brian Burke, who infrequently traveled this roadway, would hardly be able to give competent evidence as to this issue. He even understood the intersection was confusing. Mr. Levines testimony about where the accident occurred came during a confusing line of questioning and was based on a onetime reading of the traffic report. Mr. Levine also corrected that testimony saying, “It was right at the intersection if I remember right.” Mr. Levine also later in his testimony noted that the accident happened on Ridge Avenue. The demonstrative map and the police report are also entitled to little weight. The officials of the City of Evanston, Mr. Alroth and Mr. Levines testimony concerning jurisdiction are relied on by this Court to establish jurisdiction. Mr. Levine indicated that there is a connector to Ridge Avenue that goes left from Ridge Avenue and that the City held maintenance responsibility for this connector. It is most likely the accident occurred on the connector.

Mr. Alroth, the Claimants expert, did not view the scene until January 29, 1985. He took a copy of the police report and went to the area of Ridge Avenue and Green-bay Road. He found a hole that appeared several weeks to a month old. He had some photographs provided to him and he found what he believed to be the area of the accident. All of the pictures to which this witness referred appear to show the hole and expansion joint to be south of Emerson Street. In fact, Mr. Alroth specifically testified that Emerson Street was north of the pothole in question.

Claimant himself pointed to the circled area on Exhibit 3 as the place where the accident occurred. This places the Claimant south of Emerson Street at the time of the accident. The Claimant also specifically stated the pothole he hit was south of Emerson Street. The police officer indicated that the accident occurred under the viaduct which is south of Emerson Street. We, therefore, find that the Claimant has failed to prove by a preponderance of the evidence that the State had a duty to maintain the area of roadway wherein Claimant struck a bump or hole.

Based on the foregoing, we find this claim must be denied due to the Claimants failure to prove the State had a duty towards Claimant to maintain the area of roadway where Claimant was injured. We need not discuss further the remaining issues in this cause. It is, therefore, hereby ordered that this claim be, and is, hereby dismissed.