author: Holderman, J. Holderman, J.

text:
    (No. 77-CC-0329
    Anthony Carev, Claimant, v. The State of Illinois, Respondent.

      Order filed October 28, 1981.

      Order on denial of rehearing filed January 21, 1982.

    Jenner & Block (Christopher J. McElroy, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Paul Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is an action in tort brought by Claimant for damages he sustained when he was a prisoner at the Joliet Correctional Center, Joliet, Illinois, and was set upon and beaten by two other inmates.

Claimant’s theory of his case is set out succinctly in his complaint, reproduced in part as follows:

“1. This is an action in tort pursuant to the Court of Claims Act, 37 Ill. Rev. Stat. § 439.8 (d).
2. On or about August 16, 1975, and prior thereto, the State of Illinois, respondent herein, owned, controlled and operated the Joliet Correctional Center, Joliet, Illinois.
3. On or about August 16, 1975 Officer Leon Pollard was employed by respondent as a guard at Joliet Correctional Center.
4. On or about August 16, 1975, claimant was incarcerated in Joliet Correctional Center.
5. On or about August 16,1975 Officer Pollard, acting within the scope of his employment, informed claimant that there was a visitor to see him. Officer Pollard opened claimant’s cell and immediately left the area. Officer Pollard did not have a visitor ticket for claimant. Claimant is informed and believes that Officer Pollard was acting only upon a statement made by a porter (an inmate) that claimant had a visitor. Claimant is further informed and believes that Officer Pollard’s conduct was contrary to established prison procedures. In so conducting himself, Officer Pollard was acting negligently and without due care for the safety of claimant’s person.
6. Shortly after Officer Pollard opened claimant’s eighth gallery cell, claimant proceeded toward the sergeant’s desk on the main floor. As a direct and proximate result of Officer Pollard’s conduct, claimant was viciously attacked and injured by two unidentified assailants while he was descending to the main floor.
7. Claimant is informed and believes that no one had actually come to visit him at the time of the foregoing acts.
8. At all times herein mentioned, claimant was in the exercise of due care for his own safety.
9. By reason of these facts, claimant suffered great bodily injury, with accompanying pain. Claimant is informed and believes that his face will be permanently scarred. Claimant also has no sensation around part of his nose. By reason of these facts, claimant also was unable to work at his job as a machinist in the M&M Machine Shop at Joliet Correction Center between August 16, 1975 and October 1, 1975,”

Before discussing the testimony of the witnesses it will be helpful to consider some of Claimant’s documentary evidence admitted into evidence by agreement and designated collectively as the departmental report.

Claimant’s exhibit No. 1 was a letter dated September 29, 1975, from the employee’s review board to warden Ernest E. Morris concerning Officer Pollard’s role in the incident under litigation.

“A Review Board Hearing was held on this date with Officer Levon Pollard relative to three charges submitted against him, two of these charges were for violation of rule #66 of the employee’s rule book, failure to notify the institution of his intended absence; the third charge was for not following rules and regulations on his assignment. Present at his hearing were Asst. Warden William Welch, Major A. Anderson, Lt. Gaylon Yates and the Union Representative, Mrs. Ruth Haggerty. . . .
Capt. C. Bryan reported under date of August 16,1975, at approximately 8:45 a.m., Officer Pollard was assigned to front and back keys of #5, #6, #7 and #8 galleries in the west cellhouse. Officer Pollard opened cell #830 and let a resident out of his cell for a visit. Mr. Pollard did not receive any notification from the cellhouse office that there was a visit for this resident, he acted on what he had been told by a resident assigned to cellhouse help. As a result this resident was seriously injured on the flag in front of #7 and #8 gallery. This entire incident appeared to be set up by other residents.
The above report was read to Mr. Pollard and he was asked if the report was true as read and if he had any comment to make in his behalf. The officer did not admit or deny his guilt in the above charge. . . .
.... In view of the seriousness of his violation of not following the rules and regulations with regard to permitting a resident out of his cell without notification from the cellhouse officer and taking the word from a resident that the resident in cell #830 had a visit, the Board recommends the following:
The Board is of the opinion that Officer Pollard is guilty on two charges; not remembering why he was absent under date of August 10,1975 and failed to notify the institution. Guilty of allowing a resident out of his cell without notification of the cellhouse office, negligent in the knowledge of his assigned duties.
The Board recommends (1) day of suspension for not notifying the institution of his absence, (15) days suspension for negligence in the performance of his duty, to be imposed on Officer Levon Pollard.”

Memorandum dated September 19, 1979, from Dennis J. Wolff, warden, to Liz Krug, administrative assistant legal services division.

“Subject: VISITING PROCEDURES AT THE TOLIET CORRECTIONAL CENTER
Per your request, there are no written procedures pertaining to the movement of a resident from the Cellhouse for a visit. Upon checking with several employees who worked in the Cellhouse during 1975, Captain Norris, Lieutenant Cantrill, Lieutenant Hannah, and Sergeant Burnett, the following is the procedure that was followed:
Upon receiving notification of a visit, a resident Call Ticket was filled out, by an Officer in the Cellhouse Office or the Cellhouse door. This ticket was then given to a resident runner who carried the ticket to the Gallery Officer. The Gallery Officer would go to the resident’s cell, give the resident the ticket and release the resident from the cell. The resident would then report to the Cellhouse door, where he was logged out and sent to the Visiting Room. At no time has it been the policy of this Institution to release residents from their cells for a visit without a Call Ticket.”

Claimant arrived at the Joliet Correctional Center in July of 1975, and during the first or second, week of August 1975 was assigned to the facility machine shop. He had come from the Cook County jail.

Called as a witness by Respondent under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), Claimant testified that while in Cook County jail he had been attacked by a black prisoner. He recognized this prisoner in the machine shop at Joliet Correctional Center, and the prisoner recognized him and threatened him. This incident occurred on the afternoon of Friday, August 15,1975, as the inmates were leaving the machine shop to be returned to their cells. Claimant decided that he would wait until Monday to tell the authorities that he didn’t want to work at the machine shop.

“Q — did you then tell any of the officers or employees of the Administration that you had seen a person who possibly attacked you in Cook County?
A No, sir. I had no time. What happened was this was right when we were leaving in the afternoon, and we are shuttled up to the cells. I stayed in my cell. This was on a Friday evening, and I didn’t leave it. I didn’t have a chance, because on the weekend, there’s nobody there you can really talk to.
You cannot — you’ve got to put in a request form, I’m pretty sure, to speak to somebody, and then I was going to wait until Monday when everybody came in to say that I didn’t want to work at the Machine Shop and explain why, but Saturday morning, this incident happened. That’s it.”

On arriving at the diagnostic center from Cook County jail Claimant had told several counselors that he had been attacked while in the jail. It should be pointed out, however, that there is nothing in the record to indicate that Claimant gave the name of his attacker or any other information to the counselors to alert the institution that his attacker in the Cook County jail might already be an inmate at the Joliet Correctional Center.

Ernest E. Morris, warden of Joliet Correctional Center on August 16, 1975, testified that when a call ticket is issued for a prisoner the prisoner’s name and number and destination are recorded on a movement chart. He also testified that at any time there are prisoners moving freely in a cellhouse.

“Q Well, how would it happen then that those two men were sitting on the stairs? How did they get there?
A They are — in each cellhouse, I cannot give you the exact number, but there are approximately anywhere from 15 to 30 residents assigned that are in that cell house, not locked up, who are detailed to clean that cell house, called ‘cell house help’.
There’s also residents coming and going up and down the steps on their movement, unescorted, returning from either a call ticket or in line coming back. And according to the reports that I read, much as I could remember, there were still some lines coming back from breakfast into that cell house, approximately 8:40. But there are approximately 15 to 30 residents assigned on the galleries, on the catwalks, on the landings doing the necessary cleaning.”
“Q So at any time, anyone who would be released from the cell could be attacked by these individuals who were out of their cells? Is that possible?
A Yes, it is, with or without an officer present.”

Only when a prisoner is placed in protective custody (or in segregation) is he personally escorted by an officer.

As of August 1975, to be placed in protective custody a prisoner merely had to request it. After a prisoner is placed in protective custody, he would appear before a committee to show justification why he should be kept there.

Warden Morris did not know whether incoming prisoners at Joliet Correctional Center were advised during their indoctrination that protective custody was available to them.

Mr. Morris also testified that in situations where the call ticket method had been properly used, other prisoners on their way to see a visitor had been attacked.

“Q Mr. Morris, do you know of other incidents where the procedure of taking a ticket to a particular cell guard, according to the procedures of visitation, have resulted in attack on a prisoner?
A I am not without knowledge of records. I have in my mind — I know of dozens of cases, not only of attack, but riots. I will elaborate that one of the biggest escapes from Stateville occurred because of that.”

He also testified that prior to the incident in question, on weekends, when the guards were not at full strength, prisoners were sometimes let out to see visitors without a call ticket, and that on such previous occasions no prisoners had been attacked.

He further testified that after the incident Claimant asked for protective custody.

In reply to the question, “What is the purpose of the call ticket system?”, the witness replied:

“The purpose of a call ticket is to insure that the staff knows where that resident is designated to go. And they log him out at the time that he was leaving, and log him when he arrives there. But according to the counselor’s statement, it does not insure that man’s safety en route, unless he is under direct supervision.”

Earlier he stated:

“It’s not designed primarily for the protection, per se, for the resident. It’s for control; to make sure, to insure that a resident doesn’t wander or roam around the institution at will.”

The documentary evidence establishes that Officer Pollard negligently disregarded the regulations of the institution in letting Claimant out of his cell without written notification from the cellhouse officer that Claimant had a visitor. For this he received a 15-day suspension.

But Officer Pollard’s negligence is not the issue in this case. The issue is whether his negligence was the proximate cause of Claimant’s injuries.

True, Capt. C.A. Bryan, acting shift commander, in a report to Major Anderson stated,

“But had Officer L. Pollard followed the rules and regulations of this institution, this incident could never have happened.”

This statement is true but it does not dispose of the issue of proximate cause.

The subject of proximate cause is discussed in chapter 5 of Illinois Law & Practice as follows:

§ 109. — Foreseeability of Acts

“Where the conduct of more than one person serves to bring about an injury or damage, the test which should be applied in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening act as a natural and probable result of his own . negligence.
The test which should be applied in determining the question of proximate cause where the conduct of more than one person serves to bring about an injury or damage is whether the first wrongdoer might have reasonably anticipated the intervening act as a natural and probable result of his own negligence. If he could not, in the exercise of reasonable diligence, have anticipated the third person’s act and the third person was not under his control, the negligence of the first wrongdoer was not a proximate cause of the injury or damage.
This principle was applied in the case of Dabrowski v. Illinois Cent. R. Co., 1940, wherein two small boys found a fusee on a railroad right of way and took it home and the smaller boy subsequently obtained the fusee and set it afire, with the result that it set his sister’s dress afire. The Appellate Court held that .the alleged negligence of the railroad company in permitting the fusee to remain on its right of way was not the proximate cause of the girl’s injury since the company could not have foreseen the acts of the boys.”

§ 109 NEGLIGENCE

“On the other hand, the negligence of the first wrongdoer is the proximate cause of the injury or damage where it contributed thereto and the intervening act of the third person was of such a nature that it could have been reasonably anticipated by the first wrongdoer as a result of his own act or omission. In such a case the intervening act of the third person does not break the causal connection between the negligence of the first wrongdoer and the injurious result and does not serve to excuse such negligence.
The fact that the third person’s intervening act or omission is, in itself, a negligent act or omission does not make it a superseding cause of the injury or. damage where the first wrongdoer, at the time of his negligent conduct, should have realized that a third person might so act, or a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person acted in the manner in which he did or where the intervening act was a normal response to a situation created by the first wrongdoer’s conduct and the manner in which it was done was not extraordinarily negligent.”

§ 110. — Illegal or Criminal Acts

“The defendant’s negligence is too remote to constitute a proximate cause of an injury or damage where an independent illegal or criminal act of a third person, which could not reasonably have been foreseen, and without which the injury or damage would not have been sustained, intervenes to bring it about, there being no duty to anticipate the illegal or criminal acts of others by which damage is done unless they are of such a nature that they can reasonably be foreseen.
However, the intervention of a criminal act by a third person does not necessarily interrupt the relation of cause and effect between negligence and injury, and where an independent illegal or criminal act of a third person is of a nature which might have been anticipated, and which it is the defendant’s duty to provide against, he may be held liable for a breach of such duty, notwithstanding the production of injuries by the intervention of such illegal or criminal act. Under such circumstances, the chain of causation between the negligence for which the defendant is responsible and the injurious result is not broken by the intervening act.” '

Clearly the two men who assaulted Claimánt were not under Officer Pollard's control, and our opinion is that he had no reason to anticipate that anyone was trying to get Claimant released from his cell for the express purpose of assaulting him.

The regulation in question was not designed for the protection of residents but to control their movement. There was no reason for Officer Pollard to anticipate that third persons would commit a criminal act against Claimant as a result of his breach of the regulation.

Claim denied.

ORDER ON DENIAL OF REHEARING

Holderman, J.

Claimant contends in his motion for rehearing that a prima facie case is made in favor of him based on certain departmental reports cited. It is true that Rule 14 of the Court of Claims provides that such reports are prima facie evidence of the facts set forth therein. However, any conclusion arising from the facts is still open to the Court’s judgment. The fact that a report stated that the incident could never have happened except for the failure of the officer to follow procedural rules, in effect, is a determination that doesn’t circumvent the Court’s jurisdiction to determine liability. It is true that the incident wouldn’t have happened but for the conduct of the officer but that doesn’t make his conduct conclusively a proximate cause.

We have determined after a full hearing that the conduct of the officer was not the proximate cause and from this conclusion we do not now deviate.

Motion for rehearing overruled.


source: Caselaw Access Project

author: Roe, C. J.

license: Public Domain

text:
    (No. 77-CC-0416
    Douglas Allen Baker, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 23, 1981.

    Phillips, Phebus, Tummelson & Bryan (George G. Bryan, of counsel), for Claimant.

      Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

In the afternoon on March 16, 1975, the Claimant, Douglas Baker, and three friends drove to Starved Rock Park, where they spent four hours hiking through the park viewing scenic and historic sites. They apparently did not pay anything to enter the park. They walked the paths of. Starved Rock and then walked to Lover’s Leap. While in the vicinity of Lover’s Leap with his three friends, the Claimant fell off the cliff onto a lower path area. As a result of the fall he sustained serious injuries for which this claim is made.

It is obvious from the testimony of the witnesses that the trails through the park were muddy, but not slippery, and that it was not a time the park ordinarily was visited by a great number of visitors. Although there had been a number of people using the paths in question on the day in question, according to Mr. Baker it was a clear day, the weather was wet, and the sun was shining, but it had been freezing and thawing through the week.

The Claimant testified that they were walking around the Lover’s Leap area sightseeing and that as he turned to leave, “I took a step and just dropped.” Claimant’s exhibits Nos. 6 and 7 portray the area of the path in which he was walking when he fell, as it existed on the day of the accident except for the fence shown in Claimant’s exhibit No. 7. He stated the walk was approximately five feet wide. According to the Claimant there was not a lot of vegetation on the ground on the day of the accident, but brown grass was visible. On cross-examination the Claimant testified that the others of his party had turned to leave and he took one step and down he went. He stated he stepped forward. He was turning to leave. He pivoted on his right foot first. He further stated that he didn’t believe that he slipped. He said, “my feet did not slip.” He stated that the cause of his fall was that the ground broke away and he went straight down. He stated the mud was ankle deep in the area where he fell. He marked an “x” on the map where he fell. On re-direct examination he stated that the area where he was standing and fell was kind of like an overhang from the ground looking up. It tips out of the top like an indentation outwards at the top. Immediately before the fall he was standing on the path as he turned to start to leave and that is when he fell. Apparently Mr. Baker and his friends were aware of the fact that a cliff existed for they had been viewing the,.area for some time before they turned to leave.

In Vaughn v. State of Illinois (1977), 31 Ill. Ct. Cl. 465, the Court held that section 8(d) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(d)), stated that the defenses available to private persons or corporations in a civil suit are available to the State of Illinois in the Court of Cláims. The Court further held in the Vaughn case that section 3 of the “Recreational Use of Land and Water Areas Act” (Ill. Rev. Stat. 1979, ch. 70, par. 33) provides that a private person or corporation who provides land for recreational use, without the payment of a fee, owes no duty to keep the premises safe for entry or use by any persons for recreational purposes, or to give any warning of a dangerous condition, the use, structure, and activity on such premises to persons entering for such purposes. It would therefore appear that the State is not liable to Mr. Baker in this case before this Court.

The Claimant raised the question of wilful and wanton misconduct on the part of the State in its argument to the Court, but did not plead it in the complaint. After consideration of all the evidence the Court does not feel that the State is guilty of wilful and wanton misconduct in this matter.

This Court further is of the opinion that the record does not establish by preponderance of the evidence how the Claimant fell over the cliff. Claimant’s exhibit No. 7 would indicate that the Claimant was off of the path at the time of his fall.

In a scenic park of this nature there apparently are cliffs, hills, exposed tree roots, and other natural conditions which would make walking in the area hazardous if care is not used, but the State cannot be held liable if a person does not exercise the proper care while making use of and enjoying the natural habitat of a park. The nature paths in the park could be blacktopped and, of course, screens could be erected around all of the cliffs. This would help protect visitors, but it would destroy the natural beauty of the park. Visitors to parks must use care that they do not stumble or fall, or that they do not expose themselves to falling from a cliff. It does not seem prudent that on an extremely muddy day a person would stand so closely to the edge of a cliff that the edge could give way causing injury.

Even if the edge of the cliff gave way causing the Claimant to fall it was not an obvious defect that the State of Illinois could have done anything about. It should have been obvious to the Claimant that he was in an area which required extreme caution on his part, and that it was not prudent to approach too closely the edge of the cliff.

Based upon precedent it appears that the Claimant should be denied any recovery in this matter based upon the Recreational Use of Land Act, but even in the absence of said Act it is the opinion of this Court that the Claimant’s claim should be denied based upon the fact that the State of Illinois was not guilty of negligence and the Claimant was guilty of contributory negligence. It is so ordered.


text:
    (No. 77-CC-1114
    Hoel-Steffen Construction Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 25, 1982.

    Moser, Marselak, Carpenter, Cleary, Jaeckel, Keaney & Brown (Russell F. Watters, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim arises from a contract between Hoel-Steffen Construction Co., Claimant, and the Illinois Capital Development Board. Claimant is a corporation engaged in the business of constructing various types of commercial buildings as a general contractor. On February 15, 1974, Claimant entered into a contract with the Capital Development Board (CDB) to construct a one-story building at the Wabash Valley College in Mt. Carmel, Illinois. Prior to the entering of this agreement, the CDB furnished several documents to Hoel-Steffen Construction Co. upon which Hoel-Steffen was to base its bid. The differences of interpretation of these documents, which make up part of the contract agreement, is the basis of the dispute.

Most of the claim is based on several instances in which Claimant says it was authorized by the CDB to do extra work not included in the original contract. Claimant charges that it has performed the work and has not been compensated. Respondent argues that all of the work done by Claimant was either contained in the original contract price or performed without authorization. There is no dispute as to the quality of the work.

Originally CDB furnished Claimant with specifications, supplemental drawing details and two addenda and actual architectural drawings for the project so as to make its bid. The two addenda clarified parts of the drawings and specifications. Also submitted as part of the contractual documents was a document entitled “General Supplementary Conditions of the Contract for Construction.” This is a standard form prepared by the American Institute of Architects and generally defines in contract terms the rights and obligations of all parties. It further provides that the contract documents consist of “the agreement, the Conditions of the Contract (General, Supplementary and other Conditions), the drawings, the Specifications, all Addenda issued prior to execution of the contract, and all Modifications thereto.”

I

On August 6, 1975, architects issued to Claimant a field order directing Claimant to do two items of extra work. The second item on the order directed Claimant to provide adapter frames for light fixtures in a certain area so as to accommodate existing fixtures at the job. The whole field order was “subject to an equitable adjustment in the contract amount and/or performance.” Claimant was paid for the first item but not for the adapters. Claimant states that the adapters became necessary to correct an error in the shop drawings. According to Mr. Williams, vice president of Claimant, the original light fixtures did not fit into the ceiling design because of a lack of coordination between the architect and the prime electrical contractor and therefore the adapters had to be installed. Claimant argues that the error was caused by negligence on the part of the architect.

It is the generally accepted rule of law that the rights and obligations of the parties to a contract are determined from the plain, unambiguous wording of the contract. (Touhy v. Twentieth Century-Fox Film Corp. (1969), 69 Ill. App. 3d 508, 387 N.E.2d 862.) Sections 4.13.3 and 4.13.4 of the General and Supplementary Conditions state:

“By approving and submitting shop drawings and samples the (claimant) therefore represents that he has determined and verified all field measurement, field construction criteria, materials, catalong numbers and similar data or will do so, and that he has checked and coordinated each shop drawing and sample with the requirements of the work and contract documents.” (Emphasis added)

Furthermore, section 4.13.5 provides that, “The Architect will review and approve shop drawings and samples . . . only for conformance with the design concept of the project with the information given in the Contract Documents. The Architect’s approval of a separate item shall not indicate approval of an assembly in which the items function.” (Emphasis added). The shop drawings which contained a description of the light fixtures were approved by Claimant, and it was therefore the responsibility of Claimant to coordinate these fixtures with the type of ceiling. Mr. Williams testified that it was his understanding the parties had orally agreed that the architect had the final responsibility. However, there is no evidence to support this. In fact, Respondent’s refusal to pay for the adapters after it had paid for the first item in the field order indicates such a lack of agreement. No oral modification of the clear terms of a contract will be valid without the consent of both parties to the contract. Hulcher v. Adcock (1960), 25 Ill. App. 2d 255, 166 N.E.2d 168; Faith v. Martoccio (1974), 21 Ill. App. 3d 999, 316 N.E.2d 164.

II

The second area of dispute concerns $4,400.00 worth of expenses incurred by Claimant for plumbing work five feet outside the building lines. The confusion arose because of an addendum sent from the CDB to Claimant before the actual bids were submitted. The addendum states that the plumbing and fire protection work had already been bid, that the low bidder for the plumbing and fire protection work was H & H Plumbing and that the bid was $65,356.00. A notation following states:

“H & H Plumbing price includes $7,800.00 for plumbing and fire protection work 5'00" outside of the building lines. This work is under the General Construction contract as stated in the Site Utilities §02550. H & H mistakingly (sic) included this in their base price.”

Respondent asks us to read only the underlined portion of the statement. However, the addendum must be read in its entirety and in the context in which it occurs.

According to Mr. Williams, the purpose of an addendum as it is commonly used in the construction industry is to inform the general contractor, before he submits his final bid, as to additions or deletions in the contract. Before Claimant received this addendum, it was prepared to submit a bid which included the plumbing work five feet outside the building lines. After it received the addendum, Claimant assumed that this was to inform Claimant of a deletion. Had Respondent not sent the addendum, Claimant clearly would have submitted a bid sufficient to include this work. Respondent argues that Claimant should have written into its bid that it was deleting section 02550. While this would have clarified matters, the initial confusion was caused by Respondent. If Respondent had simply indicated that section 02550 is still under the general construction contract and should be bid, or that $7,800.00 should be deducted from H & H Plumbing’s bid for work five feet outside the building lines, there would have been no confusion. The contract and addendum were prepared by Respondent, and any ambiguities are to be construed against Respondent. Epstein v. Yoder (1979), 72 Ill. App. 3d 966, 391 N.E.2d 267.

Respondent also argues that it should not be required to pay Claimant since it has already paid H & H Plumbing $7,800.00 for the same work. This argument is inconsistent with Respondent’s position. If Respondent believed that section 02550 was under the general contractor’s responsibility, it should not have paid H & H Plumbing $7,800.00 for work not in H & H’s contract, nor should it have directed Claimant to do the work. However, Claimant was directed by CDB to perform the site work. Claimant subcontracted this work to H & H Plumbing, although Claimant protested at the time to CDB that it was not required to do so under the contract documents. Claimant paid H & H Plumbing $4,000.00 for this work, and under the contract terms is entitled to a 10% general contractor’s fee. The claim of $4,400.00 should be allowed.

Ill

The third area of dispute is compensation for enclosing two plenum chambers. Claimant argues that there was no note detailing its responsibility to drywall the two plenum chambers. However, the contract specifically states “the general contractor is to provide the gypsum wall board as shown on the drawings and specified herein . . .”. Shop drawing M-3 clearly provides for the gypsum drywall in the plenum chambers.

Mr. Phillips, an employee of the drywall subcontractor, testified that he did not include in his bid for subcontract work any provision for the two plenum chambers. He reviewed the specifications and found no reference to plenum chambers. The reference to such plenum chambers was contained in the mechanical drawings. Phillips stated that he did not review the mechanical drawings because “normally. . . we just don’t get involved in them unless there is something specifically noted someplace in the specifications or within the architectural plans.” There was no such notation. The general contractor is responsible to make certain its subcontractors are given all information necessary to do their work. The failure of this subcontractor to receive information as to the enclosure of the plenum chambers with drywall is clearly the fault of Claimant. This portion of the claim should be denied.

V

The fifth item of dispute involves a 5% general contractor’s fee on the amount of a field order revision. There is no dispute that Claimant is entitled to its 5% fee. The dispute is over the correct amount of the field order work. The only evidence on this was the testimony of Claimant’s vice president that the final bid by the plumbing contractor was $5,381.65 and that this was accepted by CDB. No other evidence was presented that any other figure was reached. Claimant should therefore be awarded its 5% fee, or $269.08.

VI

The final portion of Claimant’s claim is for $204.14. This represents expenses incurred by Claimant when it attempted to submit the above disputes to arbitration with the American Arbitration Association. The contract contains a provision that any disputes arising from the contract be submitted to binding arbitration. Respondent moved to dismiss the arbitration on the grounds that by statute it cannot be bound by an arbitration provision. This motion was apparently allowed because the arbitrator determined he could not proceed without the consent of both parties.

The Illinois legislature has adopted the Uniform Arbitration Act (Ill. Rev. Stat., ch. 10, par. 101 et seq.). The purpose of the Act is to discourage litigation and foster voluntary resolution of disputes through arbitration without the strict formalities of court proceedings. (Flood v. Country Mutual Insurance Co. (1967), 89 Ill. App. 2d 358, 232 N.E.2d 32; Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62.) The Act authorizes the circuit courts of this State to enforce any arbitration agreement and to enter judgment on an arbitration award. Ill. Rev. Stat., ch. 10, par. 116.

On the other hand, the legislature has granted exclusive jurisdiction to the Court of Claims to determine “all claims against the state founded upon any contract entered into with the State of Illinois.” (Ill. Rev. Stat., ch. 37, par. 439.8.) This is a response to article 13, section 4 of the Illinois Constitution of 1970, which provides that sovereign immunity is abolished in Illinois, “except as the General Assembly may provide by law.” The General Assembly has provided that the State may not be made a party defendant or party in any court except as is provided in the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.1 et seq.). If the Uniform Arbitration Act were to apply to the State, then that Act would authorize suits in the circuit courts against the State either to enforce the provision to arbitrate or to enter judgment on an award. Since such action is precluded by the Constitution and by “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1977, ch. 127, par. 801), it is obvious that the legislature did not intend to allow the State to bind itself to arbitration through the Uniform Arbitration Act. Respondent therefore had the right to refuse to arbitrate, and this portion of the claim should be denied.

In summary the following is our disposition of the various elements of this claim:

1. Adapter frames for light fixtures........denied;

2. Plumbing work.......... .. $4,400.00 awarded;

3. Plenum chambers........

4. Stainless steel counter top . ____$605.00 awarded;

5. 5% general contractor’s fee ____$269.08 awarded;

6. Arbitration expenses .....

So ordered.


author: Holderman, J.

text:
    (No. 77-CC-1219
    Mooney Construction Company, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed February 4, 1982.

    Maureen J. McGann-Ryan, for Claimant.
    Tyrone C. Fahner, Attorney General (Francis Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon motion of Claimant for default judgment.

This has been a case of many continuances and of long duration. Respondent has not filed any objection to Claimant’s motion for default judgment.

At the time of oral argument in this matter, Respondent objected to the entry of a default order. Respondent stated at that time that the facts in the case have been made of record and there was sufficient evidence in the record for the Court to make a decision on the merits of the claim.

The Court has reviewed the abstract of record, brief and argument of Claimant, oral arguments made by both parties, and is of the opinion that the motion for default order should be granted.

An award is hereby entered in favor of Claimant in the amount of $8,839.26.


author: Roe, C.J.

text:
    (No. 77-CC-1431
    Margie A. Self, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 5, 1982.

    Stephen R. Frank and Jon Gray Noll, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant brought this claim seeking compensation for several items of personal property which were destroyed by Respondent. A hearing on the matter was held before a commissioner of this Court on May 11, 1979. Following the hearing the commissioner reviewed with counsel the rules for briefing the case, informed them that if they chose to waive briefing he wanted to be notified as soon as possible, and recommended that briefs be filed. Nothing in the record indicates that either party did anything following the conclusion of the hearing. Because the time for filing briefs has long since passed we find that counsel have waived briefing and will proceed with making a determination.

On or about June 22, 1977, the Claimant, Margie A. Self, arrived by taxi at the William G. Stratton Building, a State office building next to the State Capitol. Claimant was employed as a legislative assistant to a State representative and had arrived in Springfield the previous evening to bring office supplies requested by her boss and to generally assist him the following day.

Upon arriving at the Stratton Building she made two trips back and forth from the taxi because she was unable to carry both the boxes of supplies and her suitcase in one trip. Although not exactly clear in the record, she arrived at approximately 1:30 p.m. Upon entering the building she approached the elevators. The elevator was crowded and she was unable to manage both the suitcase and the supplies at the same time. Therefore, not wanting to create confusion and not wanting to leave the suitcase there in the hall without telling anybody, she said she asked a nearby security guard if it would be all right if she left her suitcase there until she returned and told him it would be about 15 or 20 minutes. She testified that he said it was all right. She then boarded the elevator and proceeded to deliver her supplies with the understanding that during the interim the suitcase was in the possession or under the supervision or surveillance of a security guard. The security guard was never identified by name nor was he produced as a witness by either side.

During Claimant’s absence the receptionist on the first floor noticed the suitcase. Around noon that same day there was a bomb scare on the third floor of the building but the bomb was never located. Mr. Louis McHenry, building manager of the Stratton Building, testified that the receptionist became excited and scared about the possibility that the suitcase contained a bomb and notified him of the presence of the suitcase and that it had been there for about an hour. He called the Secretary of State’s security personnel and told them about the suitcase. He was instructed to evacuate people from the area and what evacuation procedures to take. No efforts were taken to ascertain the owner of the suitcase.

Sergeant Clyde L. Parliament, a staff sergeant with the investigation division of the Secretary of State’s office responded to the call. He had knowledge of the earlier bomb threat and was also concerned because a certáin ethnic group had been demonstrating that day and there had been disturbances in other cities prior to that day by persons of the same ethnicity. Before leaving to go to the Stratton Building he had requested that investigator Paul Finley meet him over there. Both had had special training in the area of hazardous devices including bomb disposal and removal and it was their responsibility to handle bomb situations.

Upon his arrival at the Stratton Building, Sergeant Parliament was met by Mr. McHenry and a couple of uniformed personnel on the first floor. He had them clear the floor and stop people from entering the building. He then approached the suitcase and examined it for any indication that it might contain a bomb, including looking for wires and listening for ticking. At that point investigator Finley arrived along with Lieutenant Robert J. Howlett and two other security persons. After being advised of the circumstances, investigator Finley also did a closeup investigation of the suitcase. Although neither noticed any indication that the suitcase might contain a bomb, the matter was discussed and it was determined that the suitcase should be removed by remote means.

A system of pulleys and rope was rigged through doors and around trees stretching nearly 100 yards. Upon making sure that the persons on the lower floors of the building were evacuated and the persons on the upper floors were relocated to the far side of the building, the suitcase was pulled on out to a point where it hung suspended from a tree. Lieutenant Howlett, a decorated marksman was then instructed to shoot a twelve gauge slug into the suitcase in an attempt to open it. He donned a safety helmet and from a safe position behind a large pilaster fired the shot. This caused the suitcase to open only partly so Lieutenant Howlett, at Sergeant Parliament’s direction, fired a double aught buckshot round into the suitcase. The suitcase dropped completely open and its contents spilled out. Fortunately for all, and especially the Claimant, no explosive device was found.

At no time during the foregoing scenario was there any evidence of attempt to identify ownership of the suitcase, other than testimony that it contained no identification tag. Also, conspicuously absent or silent during this whole time was the security guard who was said to have told Claimant that it was all right to leave the suitcase.

Meanwhile, upon delivering the supplies to the representative’s office, Claimant received a message to go to the capítol building, and went from the office over to the capítol. From the capítol she then headed back to the Stratton Building but was prevented from entering the building. From rumors travelling among the crowd which had since gathered due to the evacuation and excitement she eventually realized that her suitcase might be the cause of all the commotion.

She then went to the far side of the office building where the disarmament was occurring. At approximately the same time she arrived at the scene the shots were fired and the suitcase along with its contents were destroyed. She informed the nearest security officer that she thought it was her suitcase that was just shot. He told her to go over to the police car where by now the suitcase had been placed and if it was her suitcase she was to get in the car and wait.

From Claimant’s complaint it appears she seeks recovery under a tort or bailment theory. Facts constituting elements of duty, breach of duty, causation, damages, and freedom from contributory negligence were alleged.

We find that Respondent did have a duty to exercise due care with respect to the property of Mrs. Self. She was an employee of Respondent engaged in activities within the scope of her employment. While on State property and going about her business as a State employee she left her suitcase in the possession of or under the supervision and surveillance of the security guard, another employee of Respondent. Under the circumstances it was not unreasonable for her to do so. The security guard indicated that it was all right for her to do so. We also find that this acquiescence was not outside the scope of his employment as a security guard. Security guards have many responsibilities. It is not relevant that he could have told her not to leave the suitcase behind. The fact is that he did indicate to her that it was all right and we find that the surrounding circumstances were such as to indicate that he did assume responsibility for it. The only evidence in the record rebutting her version of the essential sequence of events was testimony regarding the color of the uniforms worn by security guards. Respondent did not produce as a witness any security guard on duty at that place and time.

We do not find it necessary to set forth what standard of care the security guard was bound to exercise for we find that the exercise of very minimal care on the part of the security guard would have prevented this unfortunate series of events from taking place. If he was present and properly looking after the suitcase he could have easily allayed the fears of the receptionist or the building manager or the bomb squad, etc. There is nothing to indicate he did anything. Before everybody jumped to conclusions he could have caused some attempt to be made to locate the owner or otherwise prevent the chain of occurrences. We do not think that under the circumstances the suitcase should or would have been opened by “violent eruption”, as it was described by the bomb technicians, had they known that the owner was a little late in coming back to claim it and the circumstances surrounding how it got there in the first place. The only evidence as to any attempt made to locate the owner was testimony by Sergeant Parliament that he was told by Mr. McHenry that he attempted to learn to whom the suitcase belonged (tr. 51,1-2) but Mr. McHenry himself stated earlier in the hearing that he made no attempt to ascertain ownership (tr. 30, 15-17).

We do not find that the security personnel who played a part in the disarmament were negligent. We are satisfied from careful analysis of the record that they exercised their best judgment and acted properly under the circumstances.

Causation is clear. At no time did any party other than agents of Respondent have control over the suitcase after Claimant boarded the elevator. The acts or omissions of the security guard ultimately resulted in the admitted destruction of the suitcase and it is foreseeable that lack of exercise of due care over a suitcase left in a hallway of a public building would cause it to meet with some peril.

Nor do we think that the actions of Claimant constituted contributory negligence. At all times she was acting pursuant to directions from her boss and within the scope of employment. She did seek and receive permission from the security guard to leave her suitcase behind and it would not be unreasonable for her to assume that it would be safe with him even if she was a little late in returning to pick it up.

That the suitcase and its contents were damaged is beyond dispute. However, the record does not support the value placed on the damaged items by Claimant. The itemized list of damages in the bill of particulars totals $330.00. No receipts or other physical evidence was introduced to corroborate that figure. Based on her testimony on direct and cross- and re-cross-examination we think that damages in the amount of $250.00 were sustained. Claimant also seeks to recover costs of her suit. Absent a statute expressly subjecting the State to costs, recovery of such is improper. No such statute was called to our attention, we could not locate one, and there is no precedent in this Court for awarding costs in an action of this type.

Claimant is hereby awarded the sum of $250.00 (two hundred fifty dollars and no cents) in full satisfaction of any and all claims arising out of this cause of action.


author: Poch, J.

text:
    (No. 77-CC-2093
    Gallagher Electric Company, Claimant, v. The State of Illinois, Respondent.

      Order filed April 16, 1982.

    Robert B. McGee, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimant corporation filed its complaint for additional costs incurred in the execution of a contract entered into with the Capital Development Board for electrical work on the Sunnybrook Middle School in Lansing, Illinois.

The parties have submitted a stipulation which provides, in part, that Claimant entered into the above mentioned contract in the net amount of $318,350.00 for the electrical work on the Sunnybrook Middle School; that the contract required the coordination and supervision of the general contractor; that the Claimant agreed to finish its work 400 days after July 29, 1975, on September 3, 1976; that the general contract was not certified as complete until April of 1978, due to unforeseen difficulties in enforcing and meeting contractual requirements on the part of certain sub-contractors; that Claimant’s work was thus delayed as being dependent on the general contractor.

The stipulation further states that “respondent, in the absence of a contractual agreement to the contrary, has been held liable for such a delay occasioned by one prime contractor to another. Kaiser v. State of Illinois, (1932), 7 CCR 99; Divane Bros. Electric Co. vs. State of Illinois, (1957), 22 CCR 546.”

The parties have agreed as to the amount of loss incurred by Claimant, as follows:

“It is further stipulated between the parties by their respective attorneys that a judgment order be entered in the amount of forty-five thousand dollars and no cents ($45,000.00) in favor of claimant and against respondent, and respondent agrees said amount is due and owing claimant.”

There being no further questions to be determined by this Court, Claimant is hereby awarded the sum of forty-five thousand dollars ($45,000.00) in final, full and complete satisfaction of his claim.


text:
    (No. 77-CC-2104
    M. & E./Alstot, March & Guillou, Inc., Claimant, v. The State of Illinois, Chain of Lakes, Fox River Commission and Department of Transportation, Division of Water Resources, Respondent.

      Order filed August 19, 1981.

    John J. Bennett, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a claim for payment for professional services rendered, material furnished and charges related thereto under three contractual relationships between Claimant and Respondent. Said agreements were entered on the following dates: January 24, 1975, December 12, 1975 and April 30, 1976.

This matter was before a commissioner when the parties entered into a stipulation on an agreed statement of facts and briefs in lieu of a hearing.

From the report of the commissioner, joint stipulation of the facts and briefs of both parties, the Court finds that there is no question that the Claimant performed the work satisfactorily and that the charges were reasonable and appropriate for the services provided. Therefore the claim is a just and lawful one and should be compensated as follows:

Under agreement of January 24,1975 $12,836.94
Under agreement of December 12,1975 $ 5,926.35
Under agreement of April 30,1976 $ 18.82
Total $18,782.11

Claimant’s request, for additional compensation for loss of services, loss of interest, attorney fees will be denied. Claimant is hereby awarded the sum of eighteen thousand seven hundred eighty-two and 11/100 dollars ($18,782.11).


text:
    (No. 77-CC-2290
    George E. Parsons, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 23, 1981.

    Awerkamp and McClain (Lucinda Awerkamp, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this cáse is attempting to collect compensation from May 9, 1977, through June 30, 1977, with the exception of June 23, 1977.

The record shows that Claimant requested retirement as of July 1, 1977, and accepted the benefits of retirement on that date. Claimant requested vacation as of May 9, 1977, which was granted.

It appears from the record that Claimant was a very dedicated individual and extremely interested in his work. During the period of his vacation, Claimant, according to his testimony, spent a great deal of time doing work that he was accustomed to doing while in the performance of his duties for the State.

Claimant was paid for six (6) days by a warrant issued in the amount of $300.00 which Claimant did not cash because he was afraid it would jeopardize his retirement by accepting a warrant issued after the commencement of his retirement.

The record discloses that Claimant did not keep a timely record of the periods of time he was supposed to be working. In his letter of retirement, Claimant indicated he would retire only if a certain individual was appointed to fill the vacancy caused by his retirement.

By letter dated May 11, 1977, Claimant was informed that his use of vacation time from May 9, 1977, to July 1, 1977, was approved, and that Mr. William Phillips would be responsible for the supervision of the District IV staff, which was the staff of Claimant.

The record fails to disclose any agreement or contract by which the State agreed to compensate Claimant for work allegedly done while on vacation, part of which time was spent lobbying to get the Commission’s bills passed and also endeavoring to secure the appointment of the man he wanted to be his successor. The record is also completely devoid of any authorization from his agency requesting he do any of the work he allegedly did while on vacation.

While it was commendable that Claimant was interested in his work and thought enough of it to work during his vacation, this in itself does not create an obligation on the part of Respondent.

Claimant should be paid the sum of three hundred ($300.00) dollars, representing the warrant that he turned back, which was for days he actually worked.

Claimant having failed to prove he is entitled to extra vacation pay, other than the three hundred dollars above mentioned, said case is dismissed.


text:
    (No. 77-CC-2375
    Fidelity and Deposit Company of Maryland, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 11, 1982.

    McNeela & Griffin, Ltd. (Terrance A. Vaisvilas, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant, Fidelity and Deposit Company of Maryland (Fidelity), pursuant to section 8(b) of the Court of Claims Act (Ill. Rev. Stat. 1975, ch. 37, par. 439.8(b)) and Rule 5D (Lapsed Appropriations) of the Court of Claims of Illinois, seeks to recover from Respondent, (State), the sum of nine thousand three hundred thirty-four and 47/100 dollars ($9,334.47), which represents the cost of certain exterior disconnect switches which were additions to a construction contract between William Adams Engineers, Inc. (Adams) and the Capital Development Board (Board) on public building project No. CDB 768-190-001, for construction of a certain public improvement known as the Davea Center, located in Addison, Illinois. Fidelity is the surety of Adams.

An evidentiary hearing was held on June 4, 1981. Counsel for Claimant has filed its post-trial memorandum. The Assistant Attorney General for Respondent has waived filing of its brief.

The issue presented is whether the Capital Development Board authorized the installation of exterior disconnect switches on the roof-top air handling units at the Davea Center, and by its words and conduct, waived the contract requirement of a written change order authorizing the installation of the extra switches.

Evidence introduced by Claimant at the trial of the cause of action did not demonstrate that Claimant was authorized to install the exterior disconnect switches on the roof-top units, and that Respondent did not waive the requirement of a written change order authorizing the installation of the extra switches.

The record reflects that pursuant to the stipulation of facts filed with this Court and marked commissioner’s exhibit No. 1, Respondent conceded that the installation of the exterior disconnect switches on the roof-top units was not required pursuant to the terms of the contract between William Adams and the Capital Development Board. Therefore, there is no dispute that the installation of the exterior disconnect switches constituted extra work.

The only defense raised by Respondent to Claimant’s cause of action is that Claimant’s contractor-agent performed the extra work without prior authorization from the Capital Development Board. Article 5 of the agreement dated May 24, 1973, between William Adams and the Capital Development Board specifies the contract documents that form the entire contract. One of the contract documents is the general conditions. Article 12, paragraphs 12.1.1 and 12.1.2 of the general conditions state, in pertinent part, as follows:

“12.1.1 The Owner without invalidating the Contract may order Changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and the Contract Time being adjusted accordingly. All such Changes in the Work shall be authorized by Change Order, and shall be executed under the applicable conditions of the Contract Documents.”
“12.1.2 A Change Order is a written order to the Contractor signed by the Owner and the Architect, issued after the execution of the Contract, authorizing a Change in’the Work or an adjustment in the Contract Sum of the Contract Time . . . .” (Respondent’s exhibit No. 1).

Claimant conceded that no written change order was executed pursuant to the applicable provisions of the contract documents.

Further, testimony was given that even if the exterior disconnect switches were not installed on these units, the Claimant would have complied with the national electrical code. In addition, Respondent’s witness testified that the exterior disconnect switch duplicated a similar disconnect switch. Therefore, the installation of the exterior disconnect switch was unnecessary.

Wherefore, it is hereby ordered that petitioner’s claim be, and hereby is denied.


text:
    (No. 77-CC-2445
    James T. Barry, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 7, 1982.
    Keith L. Young, for Claimant.
    Tyrone C. Fahner, Attorney General (Edward C. Hurley, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim is made against.the State of Illinois in tort under the provisions of section 8(d) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(d)), and Claimant seeks damages for medical and hospital expenses, loss of earnings, pain, suffering and disability.

The complaint alleges that on the 30th day of May 1977, the State of Illinois owned and managed the Kankakee River State Park in Kankakee, Illinois. The complaint further alleges that Claimant was a visitor at the park on the above date and was injured when a wooden stairway, which extended from the top of a cliff to the bottom of a ravine, was in an unsafe condition, and that as a consequence thereof, Claimant fell from the stairway and suffered personal injuries.

The issues in this case are whether Respondent • violated its duty with respect to the care and maintenance of the park and whether it was the result of said violation that Claimant suffered the injuries complained of; also whether the doctrine of comparative negligence applies to this particular case.

Claimant argues that the doctrine of comparative negligence, as decided in Alvis v. Riber (1981), 85 Ill. 2d 1, 421 N.E.2d 886, is applicable herein. The Alvis decision applies to all cases commencing on or after June 8,1981. The date of the trial in this cause was May 18, 1981, prior to the Illinois adoption of the comparative negligence doctrine, and therefore, the comparative negligence doctrine does not apply to this cause.

The facts in this case show that Claimant visited the Kankakee State Park on May 30, 1977, with Tom McKenna, Paul Furlong, and Jane Renolds. They arrived at the park between 7:45 and 8:00 p.m. After arriving at the park, the group walked one-half to three-quarters of a mile to the Rock Creek area of the park. Rock Creek is a canyon with a waterfall and the bottom of the canyon is reached by an L-shaped set of stairs running from top to bottom. The staircase consists of two sets of stairs interrupted by a four to five foot square platform. The stairs are uniformly four to five feet wide, six to nine inches deep, and six to nine inches high, with handrails on both sides of the stairs and platform. There are approximately 80 to 90 stairs total, with the platform being roughly midway down the stairs. The stairs turn at the platform and are commonly used by people after swimming or wading in the creek and are slippery when wet.

There were signs posted in the park that no swimming was allowed but evidently this restriction was disregarded by the public and was not strictly enforced by Respondent.

At the time of the accident, Claimant was climbing the stairs on the opposite side to the side he had originally descended. His right hand was on the railing and he carried half of a cooler in his left hand. Paul Furlong was carrying the other half of the cooler and was walking to Claimant’s left. According to Claimant, as he left the platform his foot slipped and the handrail gave way in his hand whereupon he fell a distance of 30 to 35 feet. Paul Furlong felt a tug at the cooler and looked up to see that Claimant had fallen through the railing.

It is interesting to note that in the report of the accident by the watchman at the park, dated May 30, 1977, it stated that Claimant “fell from canyon ledge onto set of stairs by Rock Creek waterfalls breaking railing and stairs when falling.” This is the only instance where the accident is described as above stated. It was not gone into by either Claimant or Respondent so the Court will ignore any question on this account of the accident in this opinion. Suffice it to say that if this account was correct, it would have a great deal of weight in the Court’s decision in this cause.

There is a direct contradiction in the testimony of the Claimant and his witnesses and that of Respondent’s witnesses as to the condition of the railing. The evidence shows that this stairway was built in 1970 of specially treated lumber with the expectation that it would last 15 years or more.

Respondent introduced evidence to the effect that this railing was inspected weekly and that the individual who inspected the railing the day after the accident, Barry Thomas, testified he weighed over 215 pounds, that he inspected the stairway weekly, and that he put his weight upon the stairway to see if it showed any signs of breaking or giving way. He directly contradicted the testimony of Claimant and his witnesses when they stated that the upright post that supported the part of the railing that came loose was rotten.

Claimant suffered rather severe injuries, was off work for a considerable period of time, and evidently has some permanent damage to his left knee.

This Court has, in many decisions, laid down the rule as to what duty of reasonable care is required of the State to protect its visitors to State parks. It has also laid down the criteria as to the proof that must be made by a claimant before recovery can be made.

In 32 Ill. Ct. Cl. 546, an opinion was entered on December 26, 1978, in which the Court laid down the, following rules:

“Negligence. Burden of Proof. In a negligence action Claimant has the burden of establishing by a preponderance of the evidence that Respondent was negligent, such negligence was the proximate cause of the accident, and that Claimant was not contributorily negligent.
Same — Duty of Care. Visitors to State parks are invitees to whom the State owes a duty of reasonable care in maintaining the'premises.
Same — Notice of Defect. Respondent may be charged with constructive notice of a dangerous condition when, from all the circumstances in a case, it is determined that Respondent should have been aware of the existence of the condition in the exercise of reasonable care.”

The same rule was followed in 24 Ill. Ct. Cl. 181, and in 22 Ill. Ct. Cl. 485, where the Court held that before the State can be held liable for an injury on property maintained by it, it must have actual or constructive notice of the dangerous or hazardous condition, and that such notice must be proved before the State is liable. This record is devoid of any such proof.

Claimant having failed in his burden of proof, an award is hereby denied.


text:
    (No. 78-CC-0021
    Romel Wilson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 10, 1982.

    Romel Wilson, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant, an inmate at the State penitentiary in Pontiac, Illinois, brought this claim seeking compensation for the value of a ring allegedly confiscated during a shakedown and never returned to him or sent to an address provided by him or held for him pending release. Attached to Claimant’s complaint was a copy of a shakedown receipt showing that a ring was confiscated by an officer named Eslinger. A hearing on the matter was held before a commissioner of this Court.

The record establishes that the ring did come into the exclusive possession and control of Respondent and thus a bailment was created. The burden of showing due care shifted to Respondent. The Respondent could not locate the ring or otherwise provide an indication of its disposition.

It is Respondent’s contention that the ring was contraband and as such need not be returned to the owner. This argument was specifically dealt with in Packnett v. State (1979), 33 Ill. Ct. Cl. 179, wherein a distinction was drawn between contraband which was so classified because it was dangerous per se or presented a health hazard and contraband which was such because Respondent in maintaining an orderly administration of its prison system by regulation prohibited its possession. Therefore, because of the nature of the contraband in this case, it was incumbent upon Respondent to follow its own administrative regulations and send the ring to Claimant’s home.

However, we find that the Claimant failed to prove the amount of damages he seeks. By his verified complaint Claimant swore the ring had a value of $350.00. He described it. as gold with a ruby set in it and a gold Moslem emblem mounted on the ruby. However, on pages 24 and 25 of the transcript he states that: (1) he had no idea of the carat weight of the ruby, (2) he never had the ring appraised, (3) he never saw a sales receipt showing purchase price, (4) he did not know where it had been purchased, and (5) he could not say for sure that it was in fact a ruby. All he could say is that a visiting Moslem minister who gave it to him told him it had a value of $250.00 to $260.00. In spite of this alleged worth and being fully aware of the contraband nature of the ring, Claimant chose to keep it in his cell and did not grieve its confiscation until five months later. We have an obvious problem with Claimant’s credibility here.

In considering this case, the Court bears in mind the following quotation from Hunter, Trial Handbook for Illinois Lawyers, 4th ed., ch. LXXX, section 80:5, p. 815, relating to damages in general:

“Damages are not rendered uncertain because they are uncertain in amount, as distinguished from those which are too uncertain to be recovered because they are not the certain results of the wrong that has been committed.”

Based on the foregoing we must place a value on Claimant’s loss. We hereby award Claimant the sum of $75.00 (seventy-five and no hundredths dollars) in full satisfaction of any and all claims arising out of this cause of action.


text:
    (No. 78-CC-0037
    American Electric Construction Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 25, 1982.

    Karaganis & Gold (William J. Karaganis, of counsel), for Claimant.

      Tyrone C. Fahner, Attorney General (Edward C. Hurley, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause comes before the Court on a stipulation filed by the parties wherein it is requested that this Court make an award in Claimant’s favor in the amount of $59,388.15.

The Claimant, an electrical contractor, contracted with the State to perform electrical work on the construction of the Mental Retardation Facility in Tinley Park, Illinois.

During the course of construction the Claimant performed certain work which it claimed was not called for under its contract. The major portion of this extra work (count I) involved making underground connections between the fire alarm system at the Mental Retardation Facility and the fire alarm system at the existing facility. According to Claimant’s compilation (exhibit A, attached to the stipulation), the value of this work totaled $48,455.00. Additionally, the Claimant performed 22 other tasks (count II), the value of which Claimant contends is $20,317.70 (exhibit R, attached to the stipulation). When attempts to resolve these problems failed, the complaint herein was filed.

As to the first count of the complaint, the Capital Development Roard agrees that an addendum issued by the project architects erroneously deleted all work required to connect the new fire alarm system with the old system. After inspecting the project site and examining Claimant’s cost figures, the Board values this work at $45,865.00. The Board concurs that this work is a valid extra.

Regarding count II, the board agrees that 17 of the 22 tasks do constitute work not covered by the contract. The value of this work is $13,522.15.

This Court has frequently held that deviations from plans may be orally authorized by the State notwithstanding a requirement that no extras will be allowed except as ordered in writing. Heil v. State (1976), 31 Ill. Ct. Cl. 386.

Herein the Board does not dispute the fact that the Claimant was directed to perform the work in question by its representatives at the project site.

While this court is not bound by any stipulation made by the parties to a case, such a stipulation will not be rejected out of hand. It appears that the parties herein have carefully considered the merits of this claim with the give and take which characterizes arms-length bargaining. Such being the case, the Court allows the stipulation of the parties.

It is hereby ordered that Claimant, American Electric Construction Company, be awarded the sum of $59,388.15 (fifty nine thousand three hundred eighty eight dollars and fifteen cents) comprising $45,865.00 (forty-five thousand eight hundred sixty five dollars and no cents) under count I and $13,522.15 (thirteen thousand five hundred twenty two dollars and fifteen cents) under count II of the complaint herein in full and final satisfaction of any and all claims arising under cause number 78-CC-0037.


text:
    (No. 78-CC-0267
    Evans Associates, a partnership, Claimant, v. Illinois Building Authority, a body corporate and politic of the State of Illinois, and Capital Development Board, an agency of the State of Illinois, Respondents.

      Opinion filed October 23, 1981.

    Livingston, Barger, Brandt, Slater & Schroeder (William R. Brandt, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondents.
   Roe, C.J.

The facts in this case are largely undisputed. The Board of Governors entered into two architectural service contracts with Claimants to provide services in connection with construction of the Governors State University.

The two contracts were identical when assigned to the Respondents. The Illinois Building Authority was responsible for building construction ánd their contract was changed at the time of the assignment by mutual agreement wherein subparagraph 1.3.11 was deleted.

The Board of Governors assigned the oldest contract to the Capital Development Board, which was responsible for the fixtures in the building.

The three agéncies shared in the payment of the architectural fees on a pro rata basis based upon what their share of the contract was with respect to the cost of the project. The Illinois Building Authority’s share was 83% and the Capital Development Board was responsible for 9%.

The decision of the Court with respect to the Illinois Building Authority and the Claimant will be binding on the Capital Development Board and the Claimant.

The Claimant contends it was to provide basic architectural services through July 11, 1973, and that when the contract extended beyond that point the “basic” services became “additional” services for which they were entitled to additional payment expressly under the contract. Due to the fault of the contractor the project did not move according to schedule. A meeting was held in August 1973 with representatives of all the parties present. New schedules and procedures for completion were discussed but the Respondent did not specifically promise or agree to the payment of additional fees to the Claimant because of the extension of time beyond the completion date. It is the contention that the building was only 70% completed on July 11, 1973, and it can only be assumed that Claimants and suppliers had only received 79% of their fees at that time. It was to the best interest of all of the suppliers of goods and services to proceed with the project.

The contract responsibilities of the Claimant did hot change after the meeting of the parties. (Record 58.) The Claimant continued to service the contract.

The Claimant contends that “time” determines what is a “basic” or “additional” service rather than the “nature” of the service. The Court does not agree with this contention. An examination of the contract specifically says the “time set forth as guidelines and not essential conditions of the contract.”

Based upon this provision there is no specific completion date. If the July 11, 1973, date was arrived by adding the total number of months in the completion schedule, which is 43, to the contract date to arrive at July 11, 1973, as a completion date, it is not a valid method.

The schedule determines what are basic services and they start with design and proceed through administration of the construction contract.

The subparagraph with respect to “additional services” provides for additional fees made necessary by the default of the contractor or performance of the construction contract and for providing contract administration if construction time exceeds contract time by 20% through no fault of architecture. The provision as to construction time exceeding contract time was deleted in the Illinois Board Authority contract. The deletion was agreed to by the Claimant. The situation could have been specifically covered by a provision in the contract. However, a Claimant witness testified that it was unheard of for construction to exceed the contract by 20%, so apparently the Claimant was willing to assume this risk to secure the contract.

The Court is of the opinion that the contractor in fact defaulted in the performance of the contract, but there is no breakdown or proof as to how this delay added to the cost of providing basic services by the Claimant or that the default added to the architectural costs.

The contractural relationship of the parties can be determined by the written contract so there is no necessity to imply a contract. The Claimant’s claim is therefore denied.


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    (No. 78-CC-0383
    Glenview State Bank, Claimant, v. The State of Illinois, Respondent.

      Order filed April 29, 1982.

    Miller & Huszagh, Ltd., for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon motion of Respondent for reconsideration of an order heretofore entered by this Court and Claimant’s objection to said motion.

The question involved in this case is whether or not the State of Illinois is liable to Claimant when the Secretary of State’s office issued a duplicate certificate of title, which title failed to indicate the existence of a lienholder.

The Court has previously dealt with this issue in four separate and distinct cases: Blake v. State, 21 Ill. Ct. Cl. 141; Bank of Lyons v. State, 26 Ill. Ct. Cl. 104; Wagoner v. State, 27 Ill. Ct. Cl. 127; and Brown v. State, No. 75-CC-1408.

In light of the opinions rendered in the above cases and the statutes of the State of Illinois which indicate the State is not to be held liable for any mistakes made by the Secretary of State’s office, it becomes incumbent upon the Court to follow the rules heretofore laid down and also the statutes involved. A particular statute is Section 3 — 114(h) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95M, par. 3 — 114(h) which states as follows:

“The Secretary of State shall not be held civilly or criminally liable to any person because any purported transferor may not have had the power or authority to make a transfer of any interest in any vehicle.”

It appears the only remedy for this situation would be with the legislature of the State of Illinois and not with the Court of Claims. The Court finds the State of Illinois is not responsible and this cause should be dismissed.


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    (No. 78-CC-0504
    Harold Kemper, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 8, 1982.

    Mitchell, Brandon & Schmidt, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim is brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.8(d)), for negligence. Claimant alleges that at the time of this accident on June 1, 1977, Claimant was an inmate and incarcerated at the Menard Correctional Center. Claimant had been assigned to the roofing detail and was working by carrying buckets of hot tar from the point at which they were placed on the roof to the point where the hot tar was being used.

During his work, Claimant was caused to trip and fall and he was injured. Claimant charges that Respondent failed to provide Claimant with adequate footwear for the type of work he was doing and failed to provide Claimant with adequate places to walk while carrying hot tar for roofing purposes and he claims violations of the Illinois Structural Work Act.

The evidence revealed that on June 1, 1977, while Claimant was a resident at the Menard Correctional Center, he had been assigned to work on a roofing detail on the kitchen building at Menard. Claimant states that he objected to being assigned to this job for the reason that he had no previous experience. Claimant states he had no choice but to accept the job or receive discipline by being placed in segregation. Claimant states that he requested that he be furnished with rubber-soled boots for working on the roof and was not issued leather gloves or leather apron or any protective clothing, but was issued only a pair of cotton gloves.

Although the evidence was somewhat in dispute as to what Claimant’s actual job was and what he was doing at the time he was hurt, it appears that he was responsible for hauling the tar to the roof by means of a rope attached to a bucket and carrying the tar across the roof to. the area where it was being applied to the roof’s surface by other inmates with mops. Claimant testified that as he was carrying a bucket of tar, he stepped in some wet tar on the roof and lost his balance, thereby falling and sustaining burn injuries to his arm and ankle. There is no dispute as to the seriousness of Claimant’s injuries.

The record is not clear as to the exact nature of the duties that Claimant was performing at the time of his injuries. Claimant testified that he was carrying a five-gallon bucket of hot tar from one edge of the roof to another. William Meyers, another inmate that was working on the roof at the time of Claimant’s injury, testified that Claimant was pouring hot tar on the roof and was standing beneath the area where he was pouring the hot tar and the hot tar ran down the roof incline and under his feet, thereby causing him to fall.

We have examined the report of the commissioner who heard the evidence and who observed the demeanor of the Claimant while testifying and we have reviewed the evidence deposition of William Meyers, called on behalf of Claimant to give an evidence deposition. We find that the testimony of Meyers is more credible than that of the Claimant, Harold Kemper.

Claimant Harold Kemper argues, however, that he cannot be charged with contributory negligence under the rule oí Hroma v. Illinois (1952), 21 Ill. Ct. Cl. 291. In the Hroma case, the Claimant had been instructed to assist in the slaughtering of a cow under the immediate direction and supervision of Respondent’s agent, who was the dairy manager at the penitentiary where Claimant was incarcerated. Although the evidence was in dispute, it appeared that either the dairy manager, an employee of the State, or Claimant, or another inmate began striking a full-grown cow with a hammer in an effort to kill the cow for the purpose of slaughter. The evidence showed that the method used in killing the cow was improper in that the size of the hammer was not correct. In the scuffle that ensued in an attempt to subdue the enraged animal, the Claimant’s hand was injured. In that case, this Court held that the Claimant could not be guilty of contributory negligence because he did what he was told to do and was thereby injured. We find the Hroma case different than the case at bar. In the case at bar, the Claimant was not instructed to pour hot tar “uphill” from where he was standing so that in the normal course of things, the tar would run down the slope of the roof onto the area where Claimant was attempting to stand. The danger in the use of such a technique would be obvious to any reasonable man who was paying attention to what he was doing. Another distinction between this case and the case of Hroma, supra, is that the Claimant failed to prove what standards were acceptable and what equipment was proper for use in performing the duties that were being performed by Claimant at the time of the injury. Claimant asks the Court to recognize the need for a different kind of shoes. Although the Court may appropriately apply common sense and experience in adjudicating the issues in these cases, the Court certainly does not qualify as a source of expertise in the proper procedures and equipment needed for hot roofing.

It is the opinion of the Court that the Claimant failed to sustain his burden of proof and, in any event, the record supports the finding that Claimant was contributorily negligent and that under the circumstances in the case at bar, that contributory negligence is a bar to his recovery against the State.

It is therefore ordered that Claimant’s claim be, and hereby is, denied.


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    (No. 78-CC-0789
    Illinois Bell Telephone Co., Claimant, v. The State of Illinois, Respondent.

      Order filed March 8, 1982.

    Richard N. Janney, for Claimant.
    Shari Rhode, for Respondent.
   Roe, C.J.

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

The Court hereby finds:

1. Rule 14 of the Rules of the Court of Claims of the State of Illinois states that departmental reports issued by State departments or agencies are considered prima facie evidence of the facts set forth therein.

2. The departmental report issued by the Illinois Department of Administrative Services, State department or agency, a copy of which is attached hereto and made a part hereof, established that this claim would have been paid from appropriation No. 312-44280-1700-800 had this bill been presented prior to the lapsing of appropriation. At the time the appropriation lapsed at the end of fiscal year 1975, the total amount remaining in that fund was $1,411.04. To this date, $16,786.73 of this claim has been made against the amount of appropriation which lapsed. Two percent transfer (section 13.2 of the State Finance Act, Ill. Rev. Stat. 1979, ch. 127, par. 149.2), is not applicable to this appropriation.

3. Article 8, section 2B of the 1970 Constitution of the State of Illinois states that:

“The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.”

4. Section 30 of the State Finance Act (Ill. Rev. Stat., ch. 127, par. 166) states:

“No officer, institution, department board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.”

5. As no officer, institution, department, board or commission of the State may contract indebtedness in excess of the amount of the money appropriated to it by the General Assembly of the State of Illinois, such contracts by statute are void. The Department of Administrative Services has claims in the amount of $16,786.73 against an appropriation which lapsed only $1,441.04, and it has contracted beyond the monies appropriated to it for fiscal year 1975, and therefore these contracts are void.

6. That it is clear that the services rendered which gave rise to this claim were satisfactorily performed and that the price charged was usual and customary and that Southern Illinois University-Edwardsville, the recipient of the services, paid into the State’s revolving fund the full amount for these services.

7. That for the Court of Claims to award any sum of money to the Claimant in this matter would in effect be a deficiency appropriation in violation of article 8, section 2B of the Illinois Constitution and section 30 of the State Finance Act (Ill. Rev. Stat., ch. 127, par. 166), and therefore, this cause must be dismissed with prejudice.

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


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    (No. 78-CC-0934
    IIT Research Institute, Claimant, v. The State of Illinois, Respondent.

      Order filed September 21, 1981.

    Schiff, Hardin & Waite, for Claimant.
    Tyrone C. Fahner, Attorney General (Carl J. Klein, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming to be heard on motion of the Claimant, IIT Research Institute, for summary judgment, it appearing that due notice having been given, and the Court being fully advised.

The Court finds that on June 13, 1980, the Claimant filed a request for admission of facts and genuineness of documents and although Respondent sought and received an extension of time to September 22, 1980, to respond, no response was filed. Therefore, pursuant to Supreme Court Rule 216 (Ill. Rev. Stat., ch. 110A, par. 216), the following facts are admitted:

1. On or about June 15,1977, Respondent, acting by and through its Department of Business and Economics Development, entered into a written contract (hereinafter the “contract”) with Claimant.

2. Exhibit A attached to the amended complaint herein is a true and correct copy of the contract.

3. The contract was executed for Respondent by Mr. Donald L. Duster.

4. Mr. Donald L. Duster was, at the time of execution of the contract, Director of the Department of Business and Economic Development.

5. Mr. Donald L. Duster had authority to execute the contract on behalf of the Department of Business and Economic Development.

6. After execution, the contract was approved by Respondent’s Bureau of the Budget.

7. At the time of execution of the contract, adequate funds had been appropriated by the General Assembly, and were available, to discharge Respondent’s obligations under the contract.

8. The appropriation and fund number were as follows:

Administration of Energy Programs 000-414505-1200-0000

9. Claimant properly and satisfactorily performed all of its duties and obligations under the contract.

10. Respondent accepted Claimant’s performance of the contract.

11. Claimant has made demand upon Respondent for the sum of $14,092.45 in payment for Claimant’s performance of the contract.

12. Respondent has paid no money to Claimant in respect of Claimant’s performance of the contract.

The Court finds that there is no genuine issue as to any material fact and

It is hereby ordered that Claimant’s motion for summary judgment be and the same is hereby granted;

It is further ordered that the sum of fourteen thousand ninety two and 45/100 ($14,092.45) dollars be and is hereby awarded to IIT Research Institute.


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    (No. 78-CC-0958
    Latin American Task Force, Robinson-Turner Joint Venture, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 14, 1981.

    Wilson & McIlvaine (John D. Lien and Robert K. Olendzki, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (J. Janone, Assistant Attorney General, of counsel) for Respondent.
   Poch, J.

This cause is before the Court on an agreed statement of facts of the parties. The statement is set forth below and we adopt the factual matter set forth therein:

Agreed Statement of Facts

Now come, the Claimant, LATF-Robinson-Turner Joint Venture, by its attorneys, Wilson & McIlvaine, and the Illinois Attorney General, to stipulate and agree to the following statements of fact, to stipulate and agree that the following facts constitute all facts which are relevant, material and admissible evidence herein.

1. This is an action for an alleged breach of contract.

2. This Court has jurisdiction pursuant to section 8(b) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8).

3. The Claimant, LATE-Robinson-Turner Joint Venture, is an Illinois joint venture comprised of Latin American Task Force, an Illinois not-for-profit corporation, The Robinson Group, an Illinois corporation, and Turner Construction Company, a New York corporation which is authorized and is conducting business in the State of Illinois.

4. The Respondent, Capital Development Board, is an administrative agency of the State of Illinois.

5. In February of 1975, at the invitation of the Respondent, the Claimant submitted proposals to serve as construction manager for each of the following construction projects:

PROTECT PROJECT NO.

. Pilsen Senior High School 761-031-014

Richards Vocational High School 761-031-015

Englewood Senior High School 761-031-003

Parker Senior High School 761-031-001

6. Also in February of 1975 and also at the Respondent’s invitation, the Claimant submitted a combined proposal to provide construction management services on all of the four projects!

7. The Respondent accepted the Claimant’s combined proposal.

8. The Respondent and the Claimant, through their authorized representatives, in Chicago, Illinois, entered into a written contract dated March 1, 1975, for full and adequate consideration in which the Claimant agreed to perform construction management services for all four of the above references projects (hereinafter the Contract) .

9. In consideration for the Claimant’s services, the Respondent agreed to pay to the Claimant a fixed fee for the Claimant’s services and to reimburse the Claimant for certain costs and expenses.

10. After the contract had been executed the Claimant submitted a proposed insurance plan to Respondent. The Respondent’s response was summarized in a letter from its chief legal advisor, Ronald L. Maksym, which stated in relevant part:

“To confirm our recent telephonic report, we advise that the insurance program for the joint venture as presented by the Insurance Department of Travis Realty Company and Aetna dated July 10, 1975, is approved insofar as it pertains to coverage for Workmen’s Compensation and Employer’s Liability, Public Liability and Property Damage, Automobile Liability, Completed Operations, Umbrella Excess, Owner’s Protective and Builder’s Risk. We understand that the Builder’s Risk will be on a reimbursement basis and that the proposal is modified so that the 24-hour watchman service will not be required, the requirement being offset by a $5,000 deductible with respect to burglary coverage.”

11. After receiving the letter from Ronald L. Maksym, the Claimant incurred the following insurance expenses:

TYPE COST

Builder’s risk insurance $43,785.00

General liability insurance $35,591.00

Excess coverage insurance $10,271.00

Completed operations insurance $ 1,845.00

12. It is customary for owners, and not construction managers, to purchase builder’s risk insurance and for the owners to pay the premiums directly.

13. At the time when the Respondent accepted the Claimant’s proposal, the Respondent did not intend to purchase builder’s risk insurance.

14. The Respondent subsequently decided that it did wish to purchase builder’s risk insurance. Rather than purchase builder’s risk insurance itself, the Respondent asked the Claimant to purchase the insurance for the Respondent and the Respondent agreed to reimburse the Claimant for that expense.

15. The Respondent has reimbursed the Claimant for the cost of purchasing builder’s risk insurance.

16. Beginning in November of 1975 the Claimant submitted invoices seeking payment for a portion of its fee as well as for reimbursable expenses that had been incurred. Insurance expenses owing to Travis Realty for general liability and excess coverage insurance were listed as reimbursable expenses on those invoices.

17. The Respondent received and paid the invoices in due course as in the full amount requested until July of 1976.

18. In July of 1976 the Respondent refused to pay those portions of the Claimant’s invoices which sought reimbursement for the cost of general liability, excess coverage and completed operations insurance. The Respondent also began to withhold from its subsequent payments to the Claimant an amount equal to the total previously paid as reimbursement for those types of insurance, contending that the Claimant was not entitled to reimbursement under the terms of the contract. Consequently, the Respondent has not reimbursed the Claimant for any portion of the expenses incurred for general liability, excess coverage, or completed operations insurance, despite the Claimant’s repeated demands for payment.

19. If the Court finds that the Respondent is obligated to reimburse the Claimant for the cost of general liability, excess coverage, and completed operations insurance, the Claimant is entitled to judgment in the amount of $47,707.00.

20. After the contract was executed, the Respondent decided to suspend indefinitely the Englewood and Richards projects. The parties therefore entered into extensive negotiations to reduce the amount of the Claimant’s fee commensurate with the reduction in services to be provided and commensurate with the reduction in costs which were to have been paid by the Claimant out of its management fee.

21. During the negotiations to modify the contract the parties discussed all of the particular costs which were to be paid out of the Claimant’s fee. The parties did not discuss reimbursable expenses because their cost savings would automatically accrue to the Respondent.

22. During these negotiations the cost of general liability, excess coverage and completed operations insurance was never discussed.

23. Following the negotiations, the parties entered into a modification agreement to eliminate Englewood and Richards High Schools from the contract and to reduce the Claimant’s fee.

24. Premiums for general liability, excess coverage and completed operations insurance are all computed based upon the cost of construction.

25. Except for the Respondent’s disputed contentions that the Claimant was not authorized to incur the subject insurance premiums as reimbursable expenses, the Claimant has at all times performed all things required of it under the terms of the contract.

The issue before the Court is whether the letter of the chief legal advisor for Respondent was sufficient authorization under the terms of the contract.

This matter was heard on oral argument before the Court as well as before the commissioner. Briefs were filed.

The Court having heard arguments, reviewed the briefs as well as the report of the commissioner:

Finds that the contract establishes that the insurance premiums were not expenses which the Claimant was to incur as part of its basic fee, but were instead reimbursable expenses, subject to but one condition. The only contractual condition for reimbursement was the requirement that the Claimant obtain prior written consent to incur the particular expenses. That consent was given by Respondent’s chief legal advisor in his letter of September 24, 1975. Once Mr. Maksym approved the purchase of the tendered insurance program, the cost of the program became a reimbursable expense by the express terms of the contract.

Claimant is hereby awarded the sum of forty seven thousand seven hundred and seven ($47,707.00) dollars.