text:
    (No. 75-CV-787
    In Re Application of Theophilus Sanders.

      Opinion filed March 7, 1977.

    Theophilus Sanders, Pro Se.
    William J. Scott, Attorney General of Illinois; Gary D. Abrams, Assistant Attorney General.
   Per Curiam.

This claim arises out of an alleged criminal offense that occurred on December 30, 1974, at approximately 3:40 p.m., at 639 West 59th Street, Chicago, Illinois. Theophilus Sanders, victim, seeks compensation pursuant to the provisions of "Crime Victims Compensation Act,” Ill.Rev.Stat., 1973, Ch. 70, §71, et seq. (hereinafter referred to as the "Act”).

Evidence in this cause was taken at a hearing conducted by Joseph P. Griffin, a Commissioner of this Court, following Claimant’s objection to the decision of the Court of Claims denying recovery to Claimant. This Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Court, and a report of the Attorney General of the State of Illinois which substantiates matters set forth in the application, and the evidence introduced at the aforesaid hearing. Based upon these documents and evidence, the Court finds:

1. That the Claimant, Theophilus Sanders, age 38, allegedly was the victim of a violent crime as defined in §2(c) of the Act, to wit: "Battery,” Ill.Rev.Stat., 1973, Ch. 38, §12-3.

2. That on December 30, 1974, at approximately 3:40 p.m., the Claimant and his brother-in-law were engaged in an argument at 639 West 59th Street, the Claimant’s apartment. According to the police investigation report, during this argument the Claimant’s brother-in-law, Brooks Tate, age 24, of 5651 South Halsted, stabbed the Claimant in the back and side.

3. That the police report further indicates that the Claimant then took his pistol and chased his brother-in-law. Thinking that his brother-in-law ran into a tavern, the Claimant entered the tavern with a gun in his hand, whereupon tavern patrons, suspecting a robbery, called the police. When police arrived, they transported the Claimant to St. Bernard Hospital. A warrant was later issued for the offender, Brooks Tate, who was arrested on January 17, 1975, and charged with battery. In April, 1975, he was convicted and sentenced to 1 week in Cook County Jail.

4. That the Claimant incurred medical expenses, but it appears from the evidence introduced at the hearing that the bills were paid by Claimant’s insurance company.

5. That Claimant was off work as a result of his injury for a period of 67 days, during which period his employer paid him the sum of $1,160.29. Claimant’s claim for lost wages under the Act amounts to $1,067.00, and it therefore appears that he was reimbursed by his employer in an amount greater than his claim.

6. That according to § 3(c) of the Crime Victims Compensation, Ill.Rev.Stat., 1973, Ch. 70, §73(c), a person is entitled to compensation if:

. . . the appropriate law enforcement officials were notified of the perpetration of the crime allegedly causing the death or injury to the victim as soon after its perpetration as was reasonably practicable under the circumstances;

7. That the Claimant did not comply with § 3(c) of the Act by failing to report the crime to police but choosing instead to pursue his assailant into a public place with a weapon in hand.

8. That pursuant to §3(e) of the Crime Victims Compensation Act, Ill.Rev.Stat., 1973, Ch. 70, §73(e), a person is entitled to compensation if:

. . . the victim and his assailant were not related and sharing the same household.

9. That the Claimant does not comply with §3(e) of the Act in that he is related to his assailant (brother-in-law) and further there is evidence to indicate that the argument resulting in the Claimant’s injury was over the use of the Claimant’s household by the assailant.

10. That it appears from the evidence that the Claimant was not without a wrongful act or substantial provocation of his assailant, pursuant to § 3(f) of the Act.

It is therefore the finding of this Court that the Claimant has failed to meet required conditions precedent to his right to compensation under the Act, and that, in any event, Claimant has not suffered a loss compensable under the Act.

Therefore, this Court finds that no compensation in this claim is authorized under the aforesaid Act. Accordingly, this claim is hereby denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 75-CV-799
    In Re Application of Alice Taylor Clark, Mother of Mary Cornelia Clark, a Minor.

      Opinion filed December 2, 1976.

    Alice Taylor Clark, Pro Se.
    William J. Scott, Attorney General of Illinois; Robert Dobritchanin, Assistant Attorney General.
   Per Curiam.

This cause having been set for hearing before the Commissioner of the Court of Claims, the Court finds:

1. That on June 1, 1976, an Order was entered by the Court of Claims denying the claim of Alice Taylor Clark, mother of Mary Cornelia Clark, victim (minor), for reimbursement under the Illinois Crime Victims Compensation Act, (Ill.Rev.Stat., 1975, Ch. 70, Pars. 71, et seq.).

2. That a hearing was set for October 13, 1976, at Claimant’s request.

3. That Claimant failed to appear for the hearing on October 13, 1976.

Wherefore It Is So Ordered:

1. That, for failure to appear and substantiate, Claimant’s application for benefits under the Crime Victims Compensation Act is hereby denied;

2. That the Order of the Court of Claims of the State of Illinois hereby stands as final judgment in this case.


text:
    (No. 75-CV-836
    In Re Application of Frank J. Reznar.

      Opinion filed May 11, 1977.

    Frank J. Reznar, Pro Se.
    William J. Scott, Attorney General of Illinois; Beatrice Heveran, Assistant Attorney General.
   Per Curiam.

This claim arises out a criminal offense that occurred January 4,1975, at 55th and Lawndale, Chicago, Illinois. Frank R. Reznar, the victim, seeks compensation pursuant to the provisions of the "Crime Victims Compensation Act,” (Ill.Rev.Stat., Ch. 70, Pars. 71, et seq.), hereinafter "the Act.”

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, the report of the Attorney General, and the testimony taken on February 28, 1977, before the Commissioner to whom the case was assigned for hearing. Based upon the foregoing, the Court finds:

1. That the Claimant, Frank Reznar, age 32, was a victim of a violent crime, as defined in 2(c) of the Act, to wit: "Aggravated Battery,” as defined by Ill.Rev.Stat., 1973, Ch. 38, 12-4.

2. That on January 4, 1975, at approximately 3:00 a.m., while driving on Lawndale Avenue in the City of Chicago, Illinois, Claimant was "tailgated” for several blocks by another car. When Claimant reached the intersection of Lawndale and 55th Street, the traffic signal was red and he stopped. The driver of the other vehicle pulled around Claimant’s car at a diagonal, making it impossible for Claimant to proceed. Claimant got out of his car and said to the driver of the other car, "What is the matter with you, are you crazy or something?” Thereupon the driver of the other car and two passengers in the rear seat got out of the car and beat Claimant with hockey sticks and karate equipment.

3. That the act of Claimant in getting out of his car and addressing the driver of the other vehicle as he did was not "substantial provocation of his assailant” within the meaning of the Act.

4. That Claimant was taken to Holy Cross Hospital in Chicago, Illinois, for emergency treatment and lost two weeks of work.

5. Claimant reported the incident to the police, but his assailants have never been apprehended.

6. That Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

7. That the Claimant seeks compensation for medical expenses and for loss of earnings.

8. That the sole medical expense incurred by Claimant without reimbursement therefor is the following:

$15 Ralph H. Rusco, Jr., D.O.

9. That Claimant was employed by LaBuda Cartage Company, of Chicago, Illinois, as a truck driver prior to the incident. His net weekly earnings were $210.54. As a result of his injuries he lost two weeks of work, his net wage loss being $421.08. He received $150.00 in disability benefits, leaving a compensable wage loss of $271.08.

10. That Claimant is entitled to an award based upon the following:

Compensable loss of earnings $271.08 Net medical expenses 15.00 Less statutory $200.00 deductible (200.00) Total recovery $ 86.08

It Is Therefore Ordered that the sum of Eighty-Six Dollars and Eight Cents ($86.08) be awarded to Frank Reznar as the innocent victim of a violent crime.


text:
    (No. 76-CV-19
    In Re Application of William D. McNamara.

      Opinion filed March 7, 1977.

    Ivan M. Rittenberg, Attorney for Claimant.
    William J. Scott, Attorney General of Illinois; Beatrice Heveran, Assistant Attorney General.
   Per Curiam.

This claim arises out of a criminal offense that occurred on May 3, 1975, at approximately 2:00 a.m., near 9400 South Sawyer Avenue, Evergreen Park, Illinois. Claimant seeks compensation pursuant to the provisions of the "Crime Victims Compensation Act”, Ill.Rev.Stat., 1975, Ch. 70, Sec. 71, et seq., (hereinafter referred to as the "Act”).

This course was heard before the Honorable Joseph P. Griffin, a Commissioner of this Court, following Claimant’s objection to the opinion heretofore entered by this Court on July 6, 1976, denying the application for compensation. The sole contested issue presented to the Court is whether the conduct of the Claimant in giving chase to his assailants constituted "wrongful conduct” within the meaning of Section 3(f) of the Act.

It appears from the evidence introduced at the aforesaid hearing that on May 3, 1975, at about 2:00 a.m., Claimant was a passenger in an automobile being driven by one Donald Walsh. At approximately 74th Street and Southwest Highway certain youths in an automobile threw empty beer cans at the vehicle in which Claimant was riding. The driver of the automobile in which Claimant was riding, Donald Walsh, testified that he followed the offenders’ car to 94th Street and Sawyer Avenue, a distance of over two miles, for the purpose of obtaining their license number which he intended to give to the police department. He pulled up to the rear of the offending car when another car pulled in back of him sandwiching his car in between the two vehicles. From seven to nine youths emerged from the two vehicles and proceeded to beat Donald Walsh and the Claimant.

Claimant, William D. McNamara, called as witness, testified that he was hit and knocked to the street, and that he sustained an injury to his leg which later was determined to be a fracture.

The Court feels that Claimant, as a passenger in an automobile having no control over the driver, was not involved in a chase. The Court feels that the evidence introduced at the hearing does not show that the Claimant, William D. McNamara, was engaged in any wrongful act which contributed to his injury.

Claimant seeks compensation for the time he lost from work. His hospital bills and any other expenses were paid for by his union’s insurance carrier. It has been determined that Claimant was off work fifteen (15) weeks. On the basis of the computation at $500.00 per month as per statute, the full amount he is entitled to recover is $1,875.00. Claimant received from his union the sum of $100.00 per week for a total of $1,500.00. The statutory deduction added to this provides a deduction of $1,700.00, so that the full amount to which Claimant is entitled is $175.00.

Claimant is therefore awarded the sum of $175.00.

Claimant has filed suit against William J. Pisano, the driver of the second vehicle involved in this matter, and this suit is presently pending in the Circuit Court of Cook County, No. 75 L 12304. The Respondent, State of Illinois, is subrogated in the amount of $175.00 against any recovery in said suit.


author: Berlin, C.J.

text:
    (No. 75-CC-0833
    John Doubling, Claimant, v. State of Illinois, Respondent.

      Order filed January 2, 1976.

   Berlin, C.J.

This is one of several actions pending in the Court of Claims wherein inmates of Illinois penal institutions are seeking damages for the alleged loss of items of personal property incurred when they were transferred between institutions.

The complaint herein alleges that on February 1, 1974, the Claimant had in his possession at the Illinois State Penitentiary, Menard Branch, certain items of personal property having a value of $183.82; that in mid-February he was ordered transferred to the State-ville Branch of the Illinois State Penitentiary; that he was not permitted to take his personal property with him during the course of the transfer, and that he accordingly delivered that property to an agent of the Department of Corrections for subsequent delivery to him at Stateville.

The complaint further alleges that when he arrived at Stateville Claimant was informed that his property was missing and could not be returned to him.

Claimant seeks damages for the value of that property, on the theory that it was negligently converted by Respondent’s agents. Respondent has moved for a dismissal of this claim, contending that the complaint fails to state a cause of action upon which relief can be granted. Respondent asserts that the State of Illinois is under no duty to inmates of its penal institutions to utilize due care in safeguarding their property.

We have held in Bargas, et al. v. State of Illinois, 32 Ill.Ct.Cl. that the State does not owe a duty to inmates of its penal institutions to safeguard property which they keep in their cells from pilferage by other inmates. The instant case presents a substantially different situation, however. Here it is alleged that at the instance of the State, Claimant was required to deliver his personal property to an agent of the State pending his transfer to another penal institution.

In this circumstance, where the State has taken actual physical possession of an inmate’s property during the course of his transfer between penal institutions, a duty does devolve upon the State to utilize reasonable care to safeguard and return the property to an inmate once he reaches his new institution.

We hold only that the complaint herein does state a cause of action. The burden rests upon the Claimant to prove, by a preponderance of the evidence, that the property described in the complaint was in fact delivered to an agent of Respondent; that it was not returned to Claimant; that Respondent did not utilize reasonable care to insure its return; and the value of the property allegedly lost.

It is therefore ordered that Respondent’s motion to dismiss this action be, and hereby is, denied.

This cause coming on to be heard on the motion of Claimant’s attorney to dismiss, without prejudice;

And the Court being fully advised in the premises that Claimant has moved and can no longer be located.

It is hereby ordered that this cause be, and hereby is, dismissed without prejudice.


text:
    (No. 3025
    Elva Jennings Penwell, Claimant, v. State of Illinois, Respondent.

      Opinion filed August 11, 1977.

    Gosnell, Benecki, Borden & Enloe, Ltd., Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

Claimant filed her petition for reimbursement for moneys expended for nursing care and health medical services and expenses from January 1, 1975, through December 31, 1975, praying for a total award of $12,524.42. This amount was subsequently reduced by a joint stipulation of the parties to $12,083.17.

Claimant was seriously injured in an accident while employed on February 2,1936, as a supervisor at the Illinois Soldiers’ and Sailors’ Children’s School, at Normal, Illinois, and the complete details on this injury can be found in the original cause of action, Penwell v. State of Illinois, 11 Ill.Ct.Cl. 365, in which the Court retained jurisdiction for the purpose of granting future awards.

The joint stipulation by the Claimant and the Respondent was filed herein waiving their right to the filing of briefs and the making of arguments. Since the filing of the Claimant’s petition, the Claimant has expired. Attorney, Maurice A. Rickelman, has been appointed as executor of the estate of Elva Jennings Penwell, deceased, estate number 76-P-116 in the Fourth Judicial Circuit, Effingham County, Illinois. However, the firm of Gosnell, Benecki, Borden & Enloe, Ltd., continues to represent the interests of the estate in conjunction with Mr. Rickelman. Having reviewed the record and the stipulation of the parties, an award is hereby made to the Claimant in the amount of $12,083.17 for the period of time from January 1,1975, through December 31, 1975. The matter of further claims is reserved by this Court for future determination.


author: Polos, C.J.

text:
    (No. 5305
    Samuel Stevenson, Et Al., Claimants, v. State of Illinois, Department of Public Works and Buildings, Division of Highways, Respondent.

      Opinion filed November 7, 1977.

      Lyman R. Fort and Driszer, Stansell & Crister, Attorneys for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

This is an action in 32 counts, brought on behalf of 59 individual Claimants to recover damages to the properties of Claimants damaged by the flooding of the Mississippi River in 1965. Claimants seek a total of $1,275, 959.03 in damages for loss of crops, livestock, buildings, farm personality, cost of repairs and depreciation in land value.

Because of the large number of Claimants, the complexity of the proof of damages, and the amount of damages claimed, issues of liability and damages were segmented. The sole issue before the Court is whether the State is liable for the damages incurred by Claimants. Should the Court find for Claimants on that issue, the case would be remanded for further hearings on the damage issue.

The record herein establishes that on November 24, 1925, the Illinois Commerce Commission promulgated Order No. 14492 permitting the Illinois Department of Public Works and Buildings, Division of Highways, to tunnel under the tracks of the Chicago, Burlington and Quincy Railroad Company, at a point about seven miles southwest of Gladstone, in Henderson County, Illinois, for the purpose of constructing a subway through which State Bond Issue Route No. 8 (later known as Route 34) could pass. The order was issued upon the Commission examining and approving an agreement entered into between the railroad and the Department of Public Works and Buildings covering the construction, maintenance and expense of the undercrossing thus to be formed. The railroad at this point was built across low lying lands and the tracks were built upon an embankment which, although not constructed for that purpose, acted as a secondary levee against high water along the Mississippi River. The main levee was about a mile to the west along the banks of the Mississippi River. Along with the underpass, there was to be built as per the above agreement, a horseshoe shaped levee in the river side of the railroad tracks for the purpose of preventing flood waters from flowing through the underpass and onto the low lying lands south of the tracks.

As seen from a photograph in the record identified as Respondent’s Exhibit 1, and an engineer’s drawing identified as Claimant’s Exhibit 1, the levee commenced by abutting onto the north side of the railroad tracks at a point where the tracks ran roughly east and west. From its point of origin it ran in a straight line northerly 787 feet to a point where it met Route 34. It then followed the east side of Route 34 back to the railroad tracks a distance of 970 feet, as Route 34 curved south-easterly in an arc to the underpass, the underpass being located approximately 625 feet east of the levee’s point of origin.

The term “horseshoe” levee is somewhat misleading. From the air the structure presented more the appearance of a right triangle with a “curved” hypotenuse, the railroad tracks serving as the base of the triangle, the west arm of the levee serving as one side of the triangle, and the curve of Route 34 abutted by the east arm of the levee constituting the hypotenuse.

The levee was eight feet wide at the top, 70 feet wide at the base, 20 feet high on the river side, with a sand core, and rested on a sand base. Within the triangular space formed by the two arms of the levee and the railroad embankment was a small body of water known as the “fish hatchery pond.”

The levee held at all times until April 27,1965. The primary levee system had failed a day earlier, and flood waters of unprecedented height were forced against the horseshoe levee. Portions of the levee were undermined and washed away .Attempts by the Division of Highways to plug the underpass failed and the low lying lands of the Claimants were subjected to the uncontained flood waters of the Mississippi River.

The levee collapsed because of a process known as piping. The pressure of the flood waters outside the west arm of the levee was sufficiently great that the water was able to open a subterranean channel beneath the levee and create a boil in the low pressure area of the fish hatchery pond located inside the levee. At the time of the boil there was a difference of 15 to 20 feet between the height of the water on the river side of the levee and the water in the pond, with a resulting discrepancy in the respective water pressures. When the boil was first discovered it appeared as a swollen spot in the pond, in about four to six feet of water, about 12 to 15 feet from the nearest levee embankment. To contain a boil properly it should be ringed with sandbags to build up the pressure within the contained area, but the men working at the site had no way to reach the boil. All they could do was try to seal it by throwing sandbags on top of it from the embankment. Within a short time a vortex had developed on the flood side of the levee so that the flood waters rushed into the vortex, ran underneath the levee, and boiled up like a fountain in the fish hatchery pond. Sandbags thrown into the vortex were carried underneath the levee and tossed up into the air on the pond side of the levee. The subterranean piping of the water eroded the base of the levee sufficiently so that a portion of the west arm of the levee sank into the opening beneath it and left a gap through which the flood waters entered the entire inner area. They entered with such force that they blew out and splintered a wooden plug which had been installed in the Route 34 underpass to contain them.

Thereafter other portions of the levee gave way. Photographs in the record show the extensive damage done by the flood waters to Claimants’ land and buildings as they poured through the Route 34 underpass onto the adjoining low lands.

Claimants charge the State for their loss in the following language appearing in each Count of the complaint:

“5— that Respondent in violation of its duty and in violation of Illinois Commerce Commission Order No. 14492, failed to adequately maintain said horseshoe levee for a long period of time prior to April 27,1965; that on April 26, 1965, the Mississippi River broke over the levee on the West, Northwest of the horseshoe levee and into the Henderson Creek area and that in its normal flow and course, it proceeded to the Chicago, Burlington and Quincy right of way levee and the horseshoe levee herein referred to; that then in the afternoon hours of April 27, 1965, the horseshoe levee, which was to be constructed and maintained by Respondent so as to restrain and hold back the flood waters of the Mississippi River, broke and gave way as a direct and proximate result of Respondent’s failure to maintain it in violation of Illinois Commerce Commission Order No. 14492, so that .the lands to the south and southeast therefrom, including Claimants’, were flooded and placed under water with resultant damage.”

It is thus Claimants’ theory of this case that Respondent violated Illinois Commerce Commission Order No. 14492, and its contract with the Chicago, Burlington and Quincy Railroad, by failing to properly maintain the levy. Claimants assert that they are the third party beneficiaries of that order and agreement, and that they therefore have the right to bring suit for damages sustained by them as a result of Respondent’s alleged breach of that order and agreement.

Respondent contends that Claimants were not the intended third party beneficiaries of the aforesaid order and agreement and that they therefore have no standing to sue. Respondent also asserts that it did not breach any of its obligations under the order and agreement with respect to maintenance of the levy.

We do not find it necessary to reach the issue of whether Claimants were the intended third party beneficiaries of the aforesaid agreement and order, and therefore have standing to sue for their breach. If Claimants are to prevail on their breach of contract theory, they must prove by a preponderance of the evidence that the levee was not properly maintained, and that the failure of Respondent to maintain the levee was the proximate cause of the damage to Claimants’ lands.

Claimants’ witnesses testified that the west arm of the levee was overgrown with trees and brush, and that there were ground hog holes on the west side. However, brush and ground hog holes did not cause or even contribute to the collapse of the levee. The record is clear that the levee failed because of a subterranean process known as “piping.” A1 Malmquist, a Maintenance Field Engineer for the Department of Transportation, was an eyewitness to the collapse of the levee. He testified that water did not come thru ground hog holes on the slopes of the levee, but rather that it boiled up within the fish hatchery pond too far from the banks of the levee for the State workers to contain the boil by surrounding it with sandbags. Similarly, the brush and trees on the top of the levee had nothing to do with its collapse, as all interfering brush and trees were removed by bulldozers in time to permit State employees and volunteers to build the levee to an additional height prior to its collapse.

The Court therefore finds that the “horseshoe” levee failed not because of the allegedly faulty maintenance, but rather because of the piping of the flood waters of unprecedented intensity underneath the levee. This incident was unrelated to the condition of the levee, and Claimants have thus failed to prove that any breach by Respondent caused the damage to their lands.

It is therefore ordered that this claim be denied.


text:
    (No. 5360
    Mildred L. Laine, Et Al, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 29, 1977.

    Smith & Munson, by Lester Munson and Robert Emmett Byrne, Attorneys for Claimant.
    William J. Scott, Attorney General; Morton Zaslovsky, Martin Soll and Saul Wexler, Assistant Attorneys General, for Respondent.
   Polos, C.J.

This action arises out of an automobile accident that occurred on February 18,1966, at about 3:30 p.m. on Illinois Route 132 near Gurnee, Illinois. Mildred Laine was driving east on Illinois Route 132 with her two sons, Brian and Randolph sitting next to her in the front seat of the car, when the tires on the right side of her car left the highway. When she attempted to reenter the road she lost control of her car, swerved into the oncoming lane of traffic, and collided with a westbound car. Mrs. Laine was seriously injured and her two sons were killed.

Claimants contend that the State was negligent in maintaining the shoulder of the road so that a dangerous and unsafe condition existed where her car left the highway, and that this negligence was the proximate cause of injuries to Mrs. Laine and the deaths of her two children.

Respondent denies that it was negligent in maintaining the roadway, and argues that the negligence of Mildred Laine was the proximate cause of the accident.

Called as a witness on her own behalf, Mildred Laine testified that on the day of the accident she was traveling to Waukegan from her home in Round Lake Heights, Illinois. As she proceeded east on Route 132 traffic was light and she was driving at approximately 30 miles per hour. She said it was raining lightly, when she hit a bump or hole in the road, and her car went off the road onto the shoulder. She stated that the two right wheels of her car sank into the soft shoulder, and that as she attempted to get back on the road, the back end of the car slid sideways. She said that she tried to bring the car back into her own lane and she struck head-on a car proceeding in the westbound lane.

As a result of the accident, Mrs. Laine suffered a cerebral concussion, a nasal fracture, multiple lacerations of the face, fractures of the left fifth metacarpal, a complete fracture of the right humerus with severe overriding which required three bone graft operations, a severe nine inch laceration of left thigh, and fractures of the left leg and sixth rib. Mrs. Laine testified that as a result of these injuries she has limited use of her right arm and a shortened left leg, and that her normal activities were substantially encumbered.

Brian Laine was dead on arrival at St. Therese Hospital in Waukegan, and Randolph Laine expired at the hospital shortly thereafter.

Orin Anderson, the Chief of Police of Gurnee, Illinois, was called as a witness for Claimant. He testified that he was at the scene of the accident immediately after the occurrence, and that Route 132 was “wet and slippery” on the day of the accident. He said that the shoulders were “muddy” and contained a number of holes and ruts. He estimated that there was a difference of about six inches between the level of the paved portion of the road and the shoulder of the road.

Emerson Kropf, a Lake County Deputy Sheriff, also testified that there was a drop-off in the level part of the paved portion of the road and the shoulder. However, he could not recall the depth of the drop-off, but he had previously testified at a coroner’s inquest that there was a three to four inch drop-off from the road to the shoulder.

Charles Larson, the Captain of the Lake County Sheriffs Police, testified that he examined the shoulders of the road in question and that they were narrow and lacked gravel. He said there were a number of chuckholes adjacent to the pavement, which were muddy in spots in wet weather. Larson also said that prior to the accident he had written the Illinois Division of Highways, the Lake County Superintendent of Highways and Governor Kerner complaining generally of the conditions of roads in Lake County. The letter, which was admitted into evidence, refers to all roads in Lake County, and it does not specifically refer to Route 132.

Orin Anderson, the Chief of Police of Gurnee, who previously testified as a witness for Claimant, was also called as a witness for the Respondent. When asked to describe the condition of Route 132 he stated, “The road was blacktopped approximately a year or two years before that, in pretty good shape, not a bad road to drive on.” He was further questioned as follows:

Q. “Chief, did you personally see any cracks, holes or bumps in the paved portion of the highway between Edic Road — between Route 132 and the place of the impact, the impact point?
A. I did not see it at all, any holes. To the best of my recollection, there were no holes there.
Q. All right. Now, did you see any cracks there, Chief?
A. To the best of my recollection, there were cracks across the blacktop road.
Q. And how far — what is the width of this crack; do you know?
A. It’s well, it runs the whole length of the road here, going all the way to here. (Indicating).
Q. And how wide is it?
A. Oh, maybe an inch or two inches.
Q. Okay. Now do you consider that a road hazard, a hazardous road?
A. No, sir.”

Rudolph R. Albores was employed by the Department of Public Works in the Division of Traffic at the time of the accident. He testified for Respondent that he investigated the accident about one week after the occurrence. He said that the condition of the roadway was normal. His report of the investigation stated that the shoulder of the road was four feet wide and covered with gravel, and that the shoulder was soft. He said he did not note that the shoulder was lower than the paved portion of the highway.

He testified further that he did not see any bumps or holes in the shoulder or deficiencies in the eastbound lane shoulder.

Louis Lesniak, employed as a maintenance field engineer by the Department of Transportation of the State of Illinois in the Lake County area, was called as a witness for the Respondent. He testified that he investigated the accident on the day following the accident, and that he observed the surface of the road to be in good condition. He said that it was smooth and that there were no cracks or holes in the paved portion of the highway. He also testified that the shoulder of the road was about one-and-a-half inches below the paved portion of the road, and that there were no ruts or holes in the shoulder.

Photographs of the accident scene, and detailed photographs of the shoulder of the road, were introduced into evidence.

The State owes a duty to those using its streets and highways to keep those roads in a reasonably safe condition. Schuck v. State, 25 Ill.Ct.Cl. 209. This duty extends to properly maintaining the shoulders of a highway for the uses for which they are reasonably intended. Lee v. State, 25 Ill.Ct.Cl. 29; Welch v. State, 25 Ill.Ct.Ct. 270. In order to recover in this action, Claimant bears the burden of proving, by a preponderance of the evidence, that Respondent breached this duty of reasonable care; that the Respondent’s breach was a proximate cause of the accident; and that Mildred Laine was herself in the exercise of due care and caution for her own safety and well being.

However, we need not consider more than the threshold issue of whether the State breached its duty of reasonable care. Although Mildred Laine testified that she was forced off the roadway when her car hit a hole in the road, every witness who examined the road shortly after the accident testified that the road was in normal condition, and that there were no defects in the road which constituted a hazard to traffic.

With respect to the condition of the shoulder, it is clear that it was soft due to the rain. However, the Claimant’s own witnesses were contradictory with respect to the amount of the drop-off from the road to the shoulder. Orin Anderson said he found a six inch drop-off, while Emerson Kropf testified to a three to four inch drop-off.

Respondent’s witnesses each testified that there was only a minimal difference between the height of the road and the shoulder.

This conflict in the testimony can be resolved by reference to the photographs of the accident scene which were introduced into evidence. Those same photographs show in clear detail the relationship of the road to the shoulder, and it is clear that there was only a slight drop-off from the road to the shoulder. This Court has previously held, in Lee v. State, 25 Ill.Ct.Cl. 29, that a difference in three or four inches in the levels of the road and a shoulder does not constitute a dangerous condition per se. Here it is clear both from the testimony of the witnesses, and the photographs of the accident site which were introduced into evidence, that there was not a substantial drop-off from the road to the shoulder, which would have caused a reasonably prudent driver to lose control of a vehicle which had left the roadway.

In sum, from our examination of those photographs, and our consideration of the testimony of all the witnesses, the Court must conclude that the Claimant has failed to establish by a preponderance of the evidence, that Respondent was negligent in maintaining either the highway or the shoulder.

The Court regrets this tragic occurrence, but for the foregoing reasons, this claim must be denied.


text:
    (No. 5405 and 5675
    J.L. Simmons, Inc., Claimant, v. State of Illinois, Respondent.

      Opinion filed November 2, 1977.

   Polos, C.J.

This cause coming on to be heard on the joint motion to consolidate and the stipulation of the parties hereto to settle the two causes of action, and the Court being fully advised in the premises.

It is hereby ordered that the j oint motion to consolidate be and the same hereby is granted.

It is further ordered that the stipulation executed by Claimant, J. L. Simmons Company, Inc., Capital Development Board of the State of Illinois, and the Attorney General of Illinois, be and the same hereby is entered, and the Court having heard arguments in support thereof hereby accepts and adopts the statements contained therein and judgment is herewith entered in favor of J. L. Simmons Company, Inc. in the amount of $400,000.00 pursuant to the aforesaid stipulation, in full settlement of any and all claims presented in case Nos. 5405 and 5675.


author: Holderman, J.

text:
    (No. 5638
    William Schatz, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 26, 1978.

      Reed, Armstrong, Gorman & Coffey, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant, William Schatz, brought this action against the State of Illinois, as the result of an automobile accident. The claim consists of two counts. Count I alleges negligence on the part of the State of Illinois, and asks for $25,000.00 in damages for injuries to Claimant. Count II is in the nature of the third party action in which Claimant, William Schatz, is praying for damages because of money paid to Jerry W. Hunter, a minor, and Jerry E. and Jean Hunter in settlement of a personal injury action concerning the same automobile accident.

An automobile accident occurred on Sunday, April 23,1967, between 1:00 and 2:00 p.m. on the Great River Road approximately one mile west of Clifton Terrace, Madison County, Illinois. Two automobiles were involved. Claimant, William Schatz, was driving a blue, 1963 Buick from Grafton, Illinois to Alton, Illinois. His wife, Brenda Schatz, was the only passenger.

The other automobile was a maroon, 1964 Chevrolet driven by Jerry E. Hunter. His passengers were Jean Hunter and a minor child, Jerry W. Hunter. The Hunter car was traveling west from Alton toward Grafton.

At the location of the accident, the Great River Road, was a road with four lanes generally running east and west with the Mississippi River running alongside on the south.

A new asphalt section of road ran into an older patched section of road and this is where the accident took place.

On the day of the accident, the road was wet and it had been raining for some time.

Claimant testified that his car was in good mechanical condition with practically brand new tires and that he had no problem steering or any other difficulties with his car.

From the accident area to Alton, the road had a number of dips in it which is not too uncommon for an asphalt road. Claimant was familiar with the area, having traveled the road many times before. He alleged that he was going 50 miles per hour on the new road surface and had slowed down to approximately 40 miles per hour as he approached the older section of the road. Claimant testified that as his auto went off the new road onto the old, it “stopped” as if hitting a hole in the road. The car then hit a series of ripples, causing the front end to bounce. He further testified that his vehicle then started sliding toward the river.

At this point, it appears there was not any guardrail between the road and the river. Claimant testified that he was trying to turn his car to the left and when he went off the paved road, he went onto the gravel shoulder and his car swerved from the eastbound lane into the westbound lane, hitting the Hunter automo: bile.

A State Trooper, Donald Johnson, testified that he investigated the accident and described the scene as a four lane road with a dirt and gravel shoulder, and a dirt center median. There was a juncture between the new and old portions of the highway. The new road was smooth blacktop, with curbing, guardrails, and a nine inch high concrete divider, and he testified there was a “bit of a drop” of elevation from the new to the old road. He described the drop as not abrupt but feathered out.

Hueston Smith, a consulting engineer, testified that he examinated the accident scene approximately seven months after the accident. It was his opinion there were differences in grade between the old and new sections which created a hazard.

Evidence was introduced to the effect that Claimant’s insurance company had paid a considerable amount of money to the Hunter family for damages to their automobile and for personal injuries.

This Court has passed on similar situations many times. The law is very thoroughly reviewed in 30 Ill.Ct.Cl. 32. Claimant must prove in cases like the present one that the State is guilty of negligence, and that it had reasonable notice of the dangerous condition and failed to warn the motoring public. Claimant must also prove that he was free from any contributory negligence and that the negligence of the State was the proximate cause of the accident.

The record is completely devoid as to any notice on the part of the State that a dangerous condition existed.

This Court has repeatedly held that the State is not an insurer of every accident that occurs on its highways. The accident in question occurred because Claimant lost control of his car while going over a section of road he was familiar with on a day when it was raining to the extent that windshield wipers were necessary and the asphalt pavement was slippery.

Taking these facts into consideration and the lack of notice by the State as to there being a dangerous condition, if, in fact, there was such a condition, relieves the State of liability in the present case.

Award is hereby denied.


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    (No. 5660
    Antionette R. Bochenek, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 30, 1977.

    Brody and Gore, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul Wexler, Assistant Attorney General, Attorney for Respondent.
   Polos, C.J.

This wrongful death action has been brought by Antionette R. Bochenek, as Administrator of the Estate of Stanley Bochenek, deceased. Claimant alleges that Stanley Bochenek, while mentally incompetent and a patient at the Chicago State Tuberculosis Hospital, was improperly supervised, in that he was permitted to acquire smoking materials with which he burned himself extensively. Claimant further alleges that those injuries resulted in his death.

Respondent contends that it was not negligent in its care and supervision of the deceased; and that in any event Antionette Bochenek, the wife of the deceased, was contributorily negligent. Respondent also asserts that the deceased’s burns did not cause his death.

On June 7,1968, Stanley Bochenek fell while working at the Chicago Post Office, and sustained a skull fracture. He was admitted to Presbyterian St. Luke’s Hospital for treatment. On July 19,1968, he was transferred to Chicago State Tuberculosis Hospital. His admission diagnosis at Chicago State showed advanced pulmonary tuberculosis, the recent skull fracture, chronic brain syndrome, cirrhosis of the liver, and a history of alcohol addiction.

At about 6:00 a.m. on January 14,1969, while the deceased was still a patient at Chicago State, he incurred severe burns on the upper part of his body, as a result of his smoking or handling matches and smoking materials. He was found by a hospital attendant ■ with his hospital gown aflame. The attendant also saw smoke coming from the deceased’s bedside table. The deceased was treated at Chicago State and attempts were made to have him transferred to specialized burn treatment centers. However, because of overcrowded conditions at the centers, he was not transferred and he died on January 24,1969.

Antionette R. Bochenek, the wife of the deceased, had visited her husband two days prior to the accident. She testified that he had been incapable of holding and lighting a cigarette since December, 1968, and that he was unable to smoke without assistance. She said that since December, 1968, he was unable to leave his bed, and was generally in a confused mental condition. She said it was her habit during her visits to give her husband a cigarette, and hold it for him while he smoked. Mrs. Bochenek said that she never left any cigarettes or matches with her husband after Christmas, 1968. She said that she examined his night table on January 12, 1969, as she did on all her visits, and did not find any smoking materials.

She testified that she was never told not to give her husband cigarettes, and that other patients in his room who were able to leave their beds often smoked in the room. She said that ashtrays were placed throughout the room. She talked to her husband immediately after he was burned, but he was unable to tell her how the accident happened.

Stanley Bochenek’s daughter, Sandy Plouzek, also visited him on January 12, 1969. She said that his mental condition was poor, and that he was not able to hold a cigarette or matches. She also said that he had been unable to smoke without assistance since December, 1968, and that she never left cigarettes or matches with her father. She testified that she did not see cigarettes or matches in her father’s room on her last visit.

Crispina Bullido, the supervising nurse in charge of the deceased at the time of the accident, was called by Claimant as an adverse witness. She testified that she looked in on the deceased at about midnight on the night prior to the accident, and found him resting. She examined the deceased’s room after the fire had been extinguished, and observed cigarettes and matches on his night table. She said that she had never before found cigarettes or matches on his night table. She said it was her practice to search the night tables of those patients too ill to smoke without supervision. However, she said she had not searched the deceased’s night table in January, 1969, or December, 1968. She said to her knowledge it was not hospital policy to search the night tables of those patients who were unable to smoke without supervision.

Aldona Simonaitis was the head nurse at Chicago State Hospital at the time of the accident. She testified it was the rule of the hospital that no smoking was permitted in beds, and that patients not confined to their beds were not allowed to smoke in their rooms.

She said she instructed all her nurses and aids to remove cigarettes and matches from all bedridden patients, and that this was a standard rule at the time of the accident, posted on a bulletin board at the nursing station on the floor.

In January, 1969, she would enter the deceased’s room two to three times daily. She said the deceased was confused, and was permitted to smoke only when assisted by a hospital aid. His cigarettes, and those of other bedridden patients, were kept in the nursing station outside his room.

Dr. Herbert Neuhaus, the Medical Director and Superintendent of Chicago State Tuberculosis Sanitarium at the time of the accident, was called as a witness by Respondent. He testified that it was hospital policy that there was to be no smoking in patients’ rooms; but that bedridden patients could smoke in their beds if there was a hospital attendant present. Debilitated patients were also prohibited from keeping cigarettes or matches at their bedsides.

Dr. Neuhaus further testified that it was hospital policy for nurses to search the bedsides of bedridden patients for smoking materials, and that such searches were to be made “as often as possible, at least once each shift.”

Dr. Jerome J. Kearns, a pathologist for the Coroner of Cook County, examined the body of the deceasedl'He determined that the primary cause of death was toxemia, and that in his opinion the toxemia resulted from the burns suffered by Stanley Bochenek on January 14, 1969.

The standard of care owed by the State to patients in its hospitals was set forth in Karulski v. Board of Trustees, 25 Ill.Ct.Cl. 295. There we said,

“A hospital is not an insurer of a patient’s safety, but owes the patient the duty of protection, and must exercise reasonable care, as the patient’s known condition may require... The extent and character of the care which a hospital owes its patients, depends on the circumstances of each particular case. However, this rule is limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.”

In order to recover for the death of the deceased, Claimant must prove that the State breached this standard of care; that the deceased was not contributorily negligent; and that the State’s negligence proximately caused his death.

The Claimant has established that Chicago State Hospital did not use reasonable care in supervising the deceased. Hospital personnel were shown to have violated hospital rules calling for frequent searches of bedridden patients for smoking materials. Dr. Neuhaus, the superintendent of the hospital, testified that it was hospital policy for nurses to search the bedsides of bedridden patients for smoking materials at least once each shift. Aldona Simonaitis, the head nurse at the hospital, also stated that she had instructed her nurses to remove cigarettes and matches from all bedridden patients. Yet Crispina Bullido, the nurse in charge of the deceased at the time of the accident, testified that she had not searched the deceased’s nightstand for smoking materials during December, 1968 or January, 1969. She had looked in on the defendant approximately six hours prior to the accident, and found him sleeping. Had she followed hospital policy and searched his nightstand for smoking materials, it appears that the accident would not have occurred.

The Court therefore concludes that Claimant has established the negligence of Respondent, and that such negligence was the proximate cause of the injury to Claimant. It is also clear that the deceased was mentally incompetent at the time of the accident, and was unable to care for himself. We therefore find that he was incapable of contributory negligence.

The Court further finds that the weight of the evidence establishes that the burns suffered by the deceased on January 14, 1969, proximately caused his death.

Respondent contends that Antionette R. Bochenek, the wife of the deceased, was contributorily negligent. Respondent relies upon the testimony of Aldona Simonaitis, who said that Mrs. Bochenek told her that she had given smoking materials to the deceased two days before the accident. Mrs. Bochenek denied that this conversation ever took place, and denied that she gave the deceased smoking materials.

It is not a defense to a wrongful death claim that the death of the deceased was caused in part by the contributory negligence of one or more beneficiaries of the deceased. A next of kin found to be negligent, however, may not share in any award of damages. Sheley v. Guy, 29 Ill.App.3d 361, 330 N.E.2d 567.

Here, even if Mrs. Bochenek did give the deceased smoking materials during her visit of January 12, such an act was not a proximate cause of his injury. It was hospital policy to search the bedsides of mentally confused and bedridden patients at least once each shift, and had this rule been followed the smoking materials given to Mr. Bochenek would certainly have been discovered by hospital personnel before January 14, the date of the accident. We therefore find that even if Mrs. Bochenek did give smoking materials to the deceased two days before the accident, her action was not a proximate, contributing cause to his injury.

It is quite clear from the record that the deceased was in very poor physical condition at the time of the accident. He was suffering from tuberculosis, cirrhosis of the liver, a recent skull fracture, and chronic alcoholism. Although he was six feet tall, he weighed only 95 pounds. He was 54 years old, and prior to the accident was unable to work because of his physical condition. When he was able to work, he earned approximately $65.00 per week.

Under the “Wrongful Death Act,” any recovery is to be distributed by the Court to each of the widow and next of kin of the deceased, in proportion to their relative dependence upon the deceased. Here the deceased left surviving a widow and two adult children, all of whom were in part dependent upon him for support.

Given the age and deteriorated physical condition of the deceased at the time of the accident, and the minimal contribution he was capable of making to his family, the Court finds that the sum of $5,000.00 should be awarded to the Claimant herein, to be distributed as follows:

(a) the sum of $3,500.00 to Antionette Bochenek, the widow of the deceased; and
(b) the sum of $750.00 to each of Paul Bochenek and Sandra Bochenek Plouzek, the adult children of the deceased.


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    (No. 5692
    Kay Lawley, Claimant v. State of Illinois, Respondent.

      Opinion filed December 30, 1977.

    Routman & Lawley, by Robert T. Lawley, Attorney for Claimant.
    William J. Scott, Attorney General; William Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Kay Lawley, seeks to recover the sum of $38,732.35 from Respondent for her services as a court reporter. Claimant was employed by the State from September 1,1963 to April 30,1969 as an official court reporter of the Circuit Court of Sangamon County, Illinois. She was assigned to perform court reporting services for Judge Creel Douglas during this period.

In the course of her employment, Claimant was the court reporter assigned to report all proceedings in a lengthy criminal trial heard by Judge Douglas entitled, People v. Bassett, et al. Pre-trial motions were heard in the case in May, 1966, and ended on August 30, 1966. Post trial motions were heard in September, 1967, and sentencing occurred in October. At issue is whether Claimant is due additional compensation for her services rendered during those proceedings.

Claimant was the sole witness to testify in this action. She said that at the conclusion of the Bassett trial the prosecutors and defense attorneys requested that a rough draft of the transcript be prepared for use in preparing their post-trial motions. Claimant prepared an original and six copies of rough draft transcript, totalling 10,441 pages, which was completed in May, 1967. Claimant submitted a bill to the State for that transcript, computed at the rate of $3.20 per page, and totalling $33,411.20. The bill was approved by the trial judge, and the Department of Public Safety paid the full amount billed. The bill was computed at the same statutory rate as a final transcript.

Subsequently, Chief Circuit Judge William H. Chamberlain challenged this billing, and Claimant submitted a revised bill for the draft transcription, showing a credit of $2,088.20 due to the State.

In January, 1968, Claimant attended a meeting between Judge Douglas and all counsel, to determine how many copies of the trial transcript were needed for preparation of the appeal. It appears that a special Assistant Attorney General requested an original and eight copies, but that Judge Douglas rejected the request as being too costly. Instead, Judge Douglas directed Claimant to prepare one original and one copy of the final transcription. Judge Douglas further directed Claimant to turn the copy over to the State Police headquarters so that they could Xerox as many of the final transcript copies as were needed by counsel in the case.

Claimant used the rough draft transcript in preparing the final draft transcript, and delivered a copy to the State Police as directed by Judge Douglas. The final transcript totalled 11,068 pages. The State Police delivered the Xerox copies back to Claimant. Claimant said she sorted and bound them, and mailed them to the respective parties.

Claimant submitted periodic billings to the State during her preparation of the final transcript based upon a charge of $1.80 per page. Claimant testified that she computed this charge on the basis of $.60 per page for the original and $.30 per page for each of four copies, even though she was only preparing one copy. Claimant said she charged the State for four copies, despite the order of Judge Douglas that only one copy was to be prepared by her, because she felt she was entitled to charge for a copy for each defendant.

Despite Judge Douglas’s order, the bills submitted by Claimant for final transcription based upon preparation of an original and four copies of the final transcript and totalling $19,922.40, was paid in full.

Claimant completed the final transcription of the trial testimony on December 20,1968. She testified that she was fully paid for her work through that date; but that her billings to that date did not include any work in transcribing the post-trial motions and sentencing.

Claimant said that in January or February, 1969, she contacted one Ray Terrell, a Special Attorney General who had newly been assigned to the Bassett case, and asked for instructions on preparation of the transcript of the post-trial motions and sentencing. She said she was told to prepare a rough draft and then a final draft, as she had done in transcribing the trial testimony. Claimant said she prepared an original and five copies of the rough draft of the post-trial motion proceedings. In March, 1969 she took the draft and her bill to the Department of Public Safety, but she was advised that they did not want the copies and would not pay for them. Claimant was subsequently advised by the Department that they had not ordered the rough draft copies of the transcript, and that they would pay only for one copy in finished form.

Claimant then stopped typing the transcript of the post-trial proceedings, but upon the request of Judge Douglas did finish the transcript. Claimant filed an original and three copies of the post-trial proceedings, three copies of which were supplied to defense counsel.

Claimant has not been paid for any of the transcription work on the post-trial proceedings, for which she had submitted a bill of $5,482.35.

Claimant’s claim before this Court is two-fold. She first asserts that she is due the sum of $32,225.00, representing her statutory charge for four additional copies of the final transcript of the trial proceedings. In essence, it is Claimant’s position that because her “work product” was used by the parties to the case, she should be compensated for the four additional copies of the trial transcript furnished to the Department of Public Safety, at the rate of $.75 per page per copy.

Claimant also seeks payment of $3,713.85 for the original and five copies of the rough draft of the post-trial proceedings transcript, and payment of $1,768.50 for the work on the original and three copies of the final post-trial transcription.

Claimant’s claim for additional fees for work on the final transcription is founded upon the proposition that she had a propriety interest in those transcripts, and that the parties to the trial proceeds had no right to use those transcripts unless they paid her for the privilege.

This contention clearly has no legal basis. In Tansor v. Checker Taxi Company, 27 Ill.2d 250, 188 N.E.2d 659, at 633, our Supreme Court said:

“Any notion that a court reporter or a litigant may have a propriety interest in a transcript of the evidence introduced in a judicial proceeding cannot survive the statute which provides for official court reporters. That statute authorizes each J udge of the Circuit and Superior Courts to appoint an official shorthand reporter, and provides that the salaries of a reporter so appointed shall be paid by the State... under this statute, neither party can claim a propriety interest in the official reporters notes or transcripts.”

Claimant admitted that she was fully paid for her work in preparing the rough and final transcriptions of the trial testimony. She had no propriety interest in that transcript, and there is therefore no basis for her claim that she is entitled to additional compensation because four Xerox copies were made of that transcript and used by the litigants. Her claim for $33,225.00 for the four additional copies of the final trial transcript must accordingly be denied.

We now turn to Claimant’s contention with respect to her work on the post-trial proceedings. Claimant seeks payment for preparing an original and five copies of the rough draft of those proceedings, and additional payment for preparing an original and three copies of a “final draft” of those proceedings.

Initially, the Court notes that it is difficult to comprehend why it was necessary to prepare both a rough and final draft of the post-trial proceedings. The Court also notes that in preparing multiple copies of the rough and final transcripts, Claimant violated the spirit and intent of Judge Douglas’ express direction that only an original and one copy of the transcript was to be prepared.

Claimant argues that Judge Douglas was without authority to direct that Xerox copies of the transcript be used by the indigent defendants and the State. However, if Claimant had a quarrel with that order, such rights as she may have had should have been asserted at that time and in another forum. Instead Claimant ignored the order of Judge Douglas, and billed the State for an original and four copies of the trial transcript, although she had herself only prepared an original and one copy. For some reason Claimant was paid for the original and four copies of the trial transcript, notwithstanding the trial judge’s express instructions.

Claimant similarly ignored the order of Judge Douglas when she prepared more than one original and one copy of the rough and final transcripts of the post-trial proceedings. Had Claimant heeded the instructions of Judge Douglas and prepared an original and one copy of the rough and final transcripts, she would have been due $1,061.11 for each of the transcripts, or a total of $2,122.22. The Court does not feel that Claimant should profit by her failure to obey the instructions of the trial judge, and finds that Claimant’s recovery for work performed on the post-trial proceedings should not exceed the amount she would have charged had those instructions been obeyed.

Claimant admits that she overcharged the State the sum of $2,088.20 for the rough draft of the trial transcript, and that there is a credit owing to Respondent in that amount. Offsetting the State’s credit for the overcharge against the amount we have found due to Claimant for her work on the post-trial proceedings, we hereby award Claimant the sum of $44.02.


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    (No. 5796
    Alphie Schmied and Country Mutual Insurance Co., Claimants, v. State of Illinois, Respondent.

      Opinion filed August 25, 1977.

    Anthony J. Manuele, Attorney for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Polos, C.J.

This action arises out of an accident that occurred on March 26, 1969 on Interstate 55, about three miles north of Springfield, Illinois. A tractor-trailer owned by Alphie E. Schmied, and driven by one Amos Deininger, was southbound on Interstate 55, when it skidded on the Sangamon River Bridge and collided with the concrete railings located on the sides of the bridge.

Claimants contend that the resultant damage to the tractor-trailer was caused by the negligence of the State, in failing to keep the bridge clear of ice and snow, and to warn the public of its slippery condition. Alphie E. Schmied seeks damages in the amount of $2,500.00 for the loss of use of the tractor-trailer while it was being repaired, and the additional sum of $500.00 which is the deductible provision of the policy of insurance on the tractor-trailer carried with the Country Mutual Insurance Company.

In a separate count of the complaint, Country Mutual Insurance Company, as subrogee of Alphie E. Schmied, seeks damages in the amount or 4,200.00, being the amount it paid out under its policy for damages to the tractor-trailer.

The evidence shows that on March 26, 1969, at approximately 6:30 a.m., Amos Deininger was driving a 1962 International Tractor and pulling a 1959 Fruehauf trailer, owned by the Claimant, Alphie Schmied, in a southerly direction on Interstate 55 and was approaching the Sangamon River Bridge.

In his testimony, Amos Deininger stated that he had been driving since 4:00 a.m. that morning. There had been freezing rain, and the road was slippery as he approached the bridge. At the time of the accident it was misting. He indicated that the roads that morning were “kind of slippery,” and that he had driven over icy spots before reaching the bridge. At the time of the accident the truck was traveling at approximately 40 m.p.h. He testified that he was familiar with the Sangamon River Bridge and had traveled it many times. He could not remember whether there were any signs indicating the upcoming bridge or a warning of icy conditions. At the time of the accident the trailer he was hauling was empty. Deininger stated that a tractor-trailer truck with an empty trailer “will slide a lot easier on — and quicker on ice than a loaded one will.”

As the tractor-trailer entered upon the bridge it slid and collided with the concrete railing located on both sides of the bridge. The trailer was destroyed and the tractor was badly damaged.

Deininger said that when he exited from his damaged truck, he found no indication that salt or cinders had been spread on the bridge floor.

William Pickett and Arthur Peratt, who were employed by the State as road maintenance personnel on the date of the accident, testified that they had applied a mixture of salt and cinders to the Sangamon River Bridge three times on the morning of the accident between 12:30 a.m. and the time of the accident.

In order for a Claimant in a tort action to recover against the State he must prove that the State was negligent, that such negligence was the proximate cause of his injury and that the Claimant was in the exercise of due care and caution for his own safety. McNary v. State, 22 Ill. Ct. Cl. 328; Bloom v. State, 22 Ill. Ct. Cl. 582. It is also well settled that the State is not an insurer against accidents occurring on its streets and highways, but is charged only with using reasonable diligence in keeping roads under its control in reasonable safe condition.

The Claimants have waived the filing of briefs and have advised the Court that they are relying upon Bovy v. State, 22 Ill.Ct.Cl. 95. We find that case to be clearly distinguishable. In Bovy, the State had actual notice that a bridge under its jurisdiction and control had been improperly constructed, and was subject to swaying and slipperiness in damp and icy weather. The State knew that the bridge would ice over when the pavement and other bridges in the area were merely damp, yet took no special precautions to clear ice from the bridge.

Here there was no proof that the Sangamon River Bridge had a tendency to ice over faster than other surrounding bridges, or the surrounding pavement, or that the State had actual notice of any unusual condition on the bridge. Moreover, the record is clear that the bridge was treated with salt and cinders on three occasions within six hours of the time of the accident. We think this demonstrates that the State did use reasonable diligence in maintaining the bridge; and we find that the Claimants have failed to establish negligence by the State.

This claim is accordingly denied.


text:
    (No. 5897
    Edwin Dixon, Claimant, v. State of Illinois, Respondent.

      Opinion filed July 18, 1977.

    Donald L. Johnson and Phillip M. Basvic, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, Attorney for Respondent.
   Polos, C.J.

This is a claim against the State for time unjustly served in prison, brought pursuant to Section 8(c) of the “Court of Claims Act” Ill. Rev. Stat. Ch. 37, §439.8(c). The case is to be decided pursuant to Section 8(c) as in effect prior to its amendment, effective October 1,1973, which made obtaining a pardon on grounds of innocence, a condition precedent to maintenance of an action for unjust imprisonment.

As effective prior to its amendement, Section 8(c) provided that this Court had jurisdiction to determine, “. . . all claims against the State for time unjustly served in prisons of this state, where the persons imprisoned prove their innocence of the crime for which he was convicted, and the amount of damages to which he is entitled.” See, Tate v. State, 25 Ill.Ct.Cl. 245; Pitts v. State, 22 Ill.Ct.Cl. 258. As the Court said in Dirkins v. State, 25 Ill.Ct.Cl. 343, 347,

“It is the studied opinion of this Court that the legislature of the State of Illinois in the language of Ill. Rev. Stat., Ch. 37, §439.8(c) intended that a Claimant must prove his innocence of the “fact” of the crime. It was not, we believe, the intention of the General Assembly to open the treasury of the State of Illinois to inmates of its penal institutions by the establishment of their technical or legal innocence of the crimes for which they were imprisoned.”

As appears from the record herein, on January 26, 1967, an armed robbery occurred at Ray’s Groceries, located at 1228 South Wood Street, Chicago, Illinois. The owner of the grocery store, one Raymond Ross, and an assistant, one Willie Blunt, both identified Claimant and another individual as the perpetrators of the crime.

Claimant was indicted, tried and convicted for the robbery. On September 28,1967, he was sentenced to a term of five to ten years in the Illinois State Penitentiary.

Claimant appealed, but his conviction was sustained. He subsequently filed a petition for post conviction relief, which resulted in him being granted a new trial. At the time of the second trial Willie Blunt, who had testified at the first trial, was deceased. Raymond Ross, who also identified Claimant at the first trial, testified at the second trial that he was unable to recall who robbed him on January 26, 1967, because he had suffered a head injury in July, 1970, and had been robbed so many times since the first trial. Claimant’s second trial ended in a directed verdict of acquittal.

In all, Claimant was incarcerated in a prison of the State of Illinois from February 16, 1968, to March 20, 1970, which he was remanded to the custody of the Sheriff of Cook County, Illinois pursuant to a subpoena ad testificandum.

Claimant testified in his own behalf, and denied any participation in the robbery. He was 29 years old at the time of his conviction, was married and had five children.

Respondent did not present any witnesses, but did make a showing of diligent, unsuccessful efforts to subpoena Raymond Ross. Respondent then introduced into evidence without objection by Claimant, a transcript of the testimony at Claimant’s first trial, wherein Ross identified Claimant as one of the robbers.

The Court has carefully weighed Claimant’s testimony against that of the witnesses, Ross and Blunt, who identified Claimant at the first trial. The Court has also considered certain discrepancies between Claimant’s testimony before this Court, and at the initial trial. On balance, we must conclude that Claimant has failed to sustain his burden of proving by a preponderance of the evidence that he did not commit the crime for which he was convicted.

It is therefore ordered that this claim be, and hereby is, denied.


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    (No. 6165
    Glenn D. Squires, Claimant v. State of Illinois, Illinois Youth Commission, Respondent.

      Order filed April 18, 1978.

   Holderman, J.

Claimant filed a claim against the State of Illinois for damages sustained to his automobile in an accident with another vehicle driven by an escapee from the New Salem Juvenile Camp. Rex McGuire was a juvenile inmate at the New Salem Camp operated by the Illinois Department of Corrections.

On August 25, 1970, which was the day the accident occurred, Rex McGuire was on a work detail with two other boys and under the supervision of Mr. Smith, an employee and supervisor of boys at the New Salem Camp.

Rex McGuire was riding in the back of a truck when he jumped off and escaped and later stole the car which he was driving when it ran into the car of Claimant.

Mr. Smith promptly notified the camp of the disappearance of Rex McGuire, who in turn notified law enforcement officials of the escape. Mr. Smith had been a supervisor at the camp for ten years and up to this time had not lost an inmate. Mr. Smith’s supervisor indicated he was very security conscious and at the hearing Mr. Smith stated that he had no trouble with Rex McGuire until the time of the escape.

In the case of American States Insurance Company v. State, 22 Ill.Ct.Cl. 47, 50, this Court stated that “each of these escape cases rests upon their own peculiar set of facts and circumstances.” Furthermore, the Court stated that it was not the occurrence of the escape which was to be controlling, but rather what condition existed prior to the escape.

There is no evidence in the record to indicate that the escapee was troublesome or likely to escape.

A certain amount of discretion should rest with the officials in charge of such an institution in pursuing a rehabilitation program, but it is not a defense to rely solely on the contention of rehabilitation without establishing what Respondent did in exercising a reasonable restraint of such a person. United States Fidelity and Guarantee Company v. State of Illinois, 23 Ill.Ct.Cl. 188, 191.

In Elgin Salvage and Supply Company, Inc. v. State of Illinois, 26 Ill.Ct.Cl. 278, where recovery was allowed, the Court stated:

• “It is the opinion of the Court that the evidence offered by Claimant is sufficient to establish a prima facie case of negligence on the part of the Respondent.” Berdine, in view of his past record should have been kept under greater surveillance than the ordinary inmate. The evidence does not indicate that Respondent took any special steps to prevent this escape, even though the record indicated prior escapes. Respondent offered no testimony on the point. The facts pertaining to the surveillance and escape of the inmate were in the exclusive control of the Respondent and lead, the implication that said evidence would have been presented had the same been favorable to the Respondent.”

In this case, the Respondent did introduce testimony regarding the degree of supervision over Rex McGuire. Rex McGuire had only been in the Camp for approximately one week, so he was placed in the hands of the most security conscious supervisor, Mr. Smith. Rex McGuire escaped from the custody of Mr. Smith in a most unexpected and unpredictable manner.

If minimum security institutions, like New Salem, are to function properly, then cannot be held strictly liable for the escape of any inmate at any time under any conditions. In this case, the State did not provide adequate supervision over inmate Rex McGuire.

The record does not disclose that the State was negligent in their supervision of Rex McGuire, therefore, this claim is denied.


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    (No. 6230
    Helen B. Bitner and Donald W. Bitner, Claimants, v. State of Illinois, and State of Illinois Department of Public Works and Buildings, Respondent.

      Order filed June 15, 1978.

   Holderman, J.

This matter comes before the Court on a motion filed by Respondent for summary judgment to which no answer has been filed by Claimant. Neither party has filed briefs in said cause.

This action is brought as a result of an accident which took place on Illinois Route 116, approximately nine-tenths of a mile to one mile west of Hanna City. Hanna City is approximately 15 miles west of Peoria on Route 116.

On August 22, 1969, at about 4:00 p.m., Helen B. Bitner, one of the Claimants, while driving a 1966 Chevrolet in a generally easterly direction towards Peoria, Illinois, and Sharoll Wilcox, driving a 1963 Dodge in a generally westerly direction towards Farmington, Illinois, collided on Route 116 in the eastbound lane.

Claimant alleges that immediately prior to the collision, Sharroll Wilcox hit a triangular-shaped hole in the seam of Route 116, which caused his car to go out of control onto the shoulder of the road and into Mrs. Bitner’s lane.

The evidence of the Claimant showed that at the time of the accident, there was a seam on the right hand side of each lane of Route 116. The seam was created when the highway was widened in the mid 1950’s. Each edge of this seam was eventually, through time, chipped away until a groove existed on each side of the highway. This groove existed on both sides of the road approximately from Hanna City to Farmington and had existed for a substantial length of time and was from two to four inches wide and a couple of inches deep. Claimant also established there were no warning signs on the sides of the highway to indicate the grooves in the road.

The car that struck the automobile of Claimant was driven by 16 year old Sharroll Wilcox who had been driving approximately two months. Evidence indicated he was familiar with the road and was aware of the existence of the groove in the road.

In direct testimony, Mr. Wilcox stated, “I was coming up on a curve and I hit a hole in the pavement. I lost control of the car, run off the road and come back on. The next thing I knew I was about a quarter of a mile down the road with the front of my car ripped off.”

In a Police Report made shortly after the accident, Mr. Wilcox stated that “I believe in the accident report I said I run off the road and lost control.” No indication of a hole in the road was made at that time.

Under cross examination by Mr. Webber, Counsel for Respondent, the following conversation took place:

Q. “Mr. Wilcox, I understand you said you had been driving down this depression or this groove, or how did you characterize it?
A. It was a low spot in the highway.
Q. You say you had been driving down that all the way from Hanna City?
A. Yes, off and on. It was because I usually —
Q. And I understood you to say that was not what caused the accident. What caused the accident was when you hit this hole in the road, is that right?
A. Yes.”

The record indicates that Claimant adequately proved the existence of a groove in the road and also there was sufficient evidence to show actual and constructive notice on the State, but there was no evidence showing the existence of a hole and Claimant failed to show that the State had notice of a hole if, in fact, there was such a hole.

The testimony of State Trooper John Grant, who was called by Respondent, is significant and is as follows:

Q. “Did you investigate as Mr. Wilcox was proceeding in a westerly direction, did you investigate east of the tire track? Did you investigate for holes at all, is what I’m asking? Did you have any reason to investigate for holes in the roadway there?
A. Yes, I would investigate where he had gone off the road. I would naturally look for these things as to why he went off the road. But to myself I didn’t see anything to signify that he hit a hole that caused him to go off, that is what I am saying.”

Mr. Wilcox testified that he went back later and found a place where he thought the hole was, and at that location there was a hole that had been patched.

The law involved in a case like this has been stated on many previous occasions. The State has the duty to maintain its highways in a safe condition or to warn traffic of the existence of unsafe conditions. Rickelman v. State of Illinois, 19 Ill.Ct.Cl. , 54. Also, if the State has knowledge, either actual or constructive, of a dangerous condition on its highways and fails to warn the public of the danger, then it must respond in damages for injuries received as a result. Bovey v. State of Illinois, 22 Ill.Ct.Cl. 95 at 108. However, the State is not an insurer against accidents on its highways. Bloom v. State of Illinois, 22 Ill.Ct.Cl. 582.

The Claimants have failed in their obligation to prove there was a hole in the road and that the State had actual or constructive knowledge of such defect and that such defect caused the accident complained of.

Motion for summary judgment is hereby granted and this cause dismissed.


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    (No. 6461
    Luke J. Grimelli, M.D., Claimant, v. State of Illinois, Respondent.

      Opinion filed March 29, 1978.

    Vito Daleo, Attorney for Claimant.
    William J. Scott, Attorney General; Saul Wexler, Assistant Attorney General, for Respondent.
   Polos, C.J.

This is a claim by Dr. Luke J. Grimelli to recover the sum of $380.00 which he contends he is owed for diagnostic consultations and laboratory tests performed on five patients at the request of the Division of Vocational Rehabilitation of the State of Illinois.

The parties waived the filing of briefs, and the only issue before the Court is whether Claimant is entitled to recover for the work he claims he performed.

The record establishes that Claimant was authorized by the Division of Vocational Rehabilitation to examine five patients and file reports to determine whether they were eligible for payments under the Federal Disability Program. In order to determine disability, time was of the essence so that those persons who qualified could receive payments as soon as possible. As to all five patients, the Claimant’s authorization was cancelled due to his delay in filing the reports. In three instances, no report was ever received from Claimant; in the other two cases, reports were received after the cancellation had been sent to Claimant.

A brief summary of evidence as to each of the five patients involved is as follows:

1. Geraldine Holland the sum of $75.00
Examined May 19,1970.
Tests performed May 26,1970.
Notice of cancellation sent July 6,1970.
Report mailed by Claimant August 20, 1970.
Report returned to Claimant.
2. Phronia Belcher the sum of $92.00
Examined June 18,1970.
No report received.
Claimant alleges report sent Sept. 18,1970.
Notice of Cancellation Dec. 8, 1970.
3. Julia Notaro the sum of $90.00
Examined June 12, 1970.
No report received.
Claimant alleges report sent Sept. 18,1970.
Notice of cancellation Dec. 8, 1970.
4. Ruby Roundy the sum of $64.00
Examined June 23,1970.
No report received.
Claimant alleges report sent Sept. 18,1970.
Notice of cancellation sent Dec. 8,1970.
5. Evelyn Zaborsky the sum of $59.00
Examined June 9,1970.
Cancellation sent July 8, 1970.
Report sent August 20 and returned to Claimant.

In none of the instances did Claimant recall receiving notice of cancellation, although he did recall having “received some mail . . . but I don’t know exactly what it was.” The Claimant tried to ascribe the delay in his preparing reports to the fact that patients often had to be sent to hospitals for tests, but on cross-examination, he admitted that all five of the patients involved were tested in “our building, our laboratories,” the same building in which Claimant examined the patients. Moreover, in every instance the patients were tested on the same day as the doctor examined them, and in one case, before the patient was examined by Claimant.

Because of Claimant’s delay in returning his reports, Respondent had to have the examinations, tests and reports on the five patients performed by other doctors, since the Division of Rehabilitation attempts to have determination of disability made within 30 days of the application date. Although Claimant allegedly mailed three reports before notices of cancellation were sent to him he admitted that he personally did not mail them, that he was in the process of moving his office, and that, in one instance, the date of mailing was two weeks after the report had been prepared.

In view of the fact that the Respondent had to engage other doctors to perform the services for which Claimant seeks payment, and in view of Claimant’s failure to provide these services in a timely manner, Claimant has failed to establish that he is entitled to recover on his claim.

It is therefore ordered that this claim be and hereby is, denied.


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    (No. 6494
    Thomas N. Grogan, d/b/a Illini Heat & Power, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 29, 1978.

    Horsley, Kimble, Lott & Surman, Attorneys for Claimant.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

This claim arises out of a contract awarded to Claimant for the installation of a 10,000 gallon underground gasoline storage tank in a parking lot of the Ottawa State Garage in Ottawa, Illinois. The contract called for the excavation of the site, installation of the appropriate footings and foundations for the tank, and the return of the parking lot and surrounding sidewalks to their original condition.

The contract was let for bidding, and Claimant’s low bid of $4,970.00 was accepted by the State. At issue is whether Claimant should be paid the additional sum of $13,076.00 to compensate him for the difficulties encountered in completing the work, which were not foreseen by either party when the contract was executed.

The facts are not in dispute. Prior to bidding on the contract in question, the Claimant visited the installation site and made three test borings, each to a depth of eight feet. He testified that he encountered no unusual conditions in his testing.

Claimant commenced work on the site on September 11,1970. On the first day of excavation, Claimant’s employees encountered solid rock under a portion of the excavation site. They also struck and damaged a sewer which ran diagonally across the excavation site. The broken sewer and exceptionally heavy rains flood-

ed the excavation, and caused part of the surrounding parking lot and a nearby fence and gate to collapse. Claimant was required to place pumps in the excavation during construction to control the flooding.

When Claimant became aware of the existence of the rock and storm sewer on the site, he so advised the supervising architect of the Department of General Services. On October 20, 1970, the supervising architect sent Claimant a letter, requesting that Claimant submit a proposal for rerouting the sewer.

Claimant submitted the proposal to the Illinois Auditor General, along with the affidavit of Robert McAlpine, the Superintendent of the Division of Vehicles of the Department of General Services. The affidavit certified that the relocation of the sewer, and correction of the flooding, were emergency matters. Submitted with the proposal was a requisition signed by McAlpine, and approved by the director of the Department of General Services, requesting that Claimant be paid the sum of $13,076.00 for his work in correcting the flooding, removing rock from the excavation site, and rerouting the sewer.

Claimant said that he undertook the additional work on the site only after Robert Manker, Superintendent of Building and Grounds of the Secretary of State, had assured him that he would be paid for his additional efforts. Claimant subcontracted the job of removing the rock from the excavation, which took approximately two weeks. In rerouting the sewer Claimant had to saw through the asphalt pavement of the parking lot, dig a ditch approximately 25 feet from the tank, and lay cast iron sewer pipe around the tank.

Claimant fully performed all work required under the contract, including rerouting the sewer and replacing the surface pavement. Claimant purchased all the materials used in rerouting the sewer, and has been paid only the original contract price of $4,970.00.

It is the position of the State that this claim for additional compensation is barred by the contract between Claimant and the State. With respect to Claimant’s contention that he should receive additional compensation for removal of the rock at the site, the State points to Sections 1-8 and II-7 of the contract, which, in substance, states that a contractor bidding on the job must familiarize himself with conditions at the site, and that the State would not be responsible for paying for additional work required by the failure of the contractor to note those conditions. With respect to the rerouted sewer, Respondent points to Sections II-5 and 11-26, which provide, in substance, that the State made no effort to discover underground utilities, and that it is the responsibility of the contractor to determine if difficulties would be encountered in completing the job because of underground utilities.

The State’s reliance upon these contractual provisions might be valid, had not the State previously engaged in a course of conduct clearly evidencing an intention not to hold Claimant to these terms. It is uncontradicted that before Claimant began excavating the rock and rerouting the sewer, he was assured by a person with supervisory authority in the Office of the Secretary of State that he would be paid for the additional work. In fact, the State went so far as to requisition the additional payment, and the director of the Department of General Services approved that requisition.

The Court feels that now that Claimant has satisfactorily performed the additional work, the State may not abandon its prior position, upon which Claimant relied in relocating the sewer and excavating the rock from the job site. The record is clear that after the contract in question was executed, Claimant and the State of Illinois agreed to a modification of its terms. Specifically, Claimant agreed to perform the additional work discovered to be necessary to install the gasoline tank, and Respondent agreed to pay him the additional sum of $13,076.00. This agreement was supported by sufficient consideration and in any event, Claimant clearly relied upon it to his detriment. The parties made a valid modification of their contract, and Claimant is entitle to additional compensation.

The State does not contest the reasonableness of Claimant’s charge for the additional work, and agrees that it was satisfactorily performed.

Claimant is therefore awarded the sum of $13,076.00.