author: Montana, C.J.

text:
    (Nos. 86-CC-0929, 87-CC-1318, 89-CC-3279 cons.
    A & H Plumbing and Heating Co., F.E. Moran, Inc., and Thorlief Larsen & Son, Inc., Claimants, v. The State of Illinois, Respondent.

      Order filed June 8, 1990.

    McNella & Griffin (Marsha Maras, of counsel), for Claimant A & H Plumbing and Heating Co.
    Pasquesi, Cengel & Pasquesi, P.C. (Thomas A. Pasquesi, of counsel), for Claimant F.E. Moran, Inc.
    Querrey & Harrow, Ltd. (Paul T. Lively, of counsel), for Claimant Thorlief Larsen & Son, Inc.
    Neil F. Hartigan, Attorney General (Erin O’Connell, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

Claimants A & H Plumbing and Heating Company, Inc., F. E. Moran, Inc., and Thorlief Larsen & Son, Inc., brought these claims seeking compensation for construction work done for the Respondent’s Capital Development Board (hereinafter referred to as the CDB) on Project 810-072-001, the Oakton Community College.

A & H Plumbing and Heating Company, Inc., filed its claim on October 25,1985. In relevant part, it alleged in its verified complaint the following:

1. On or about September 9, 1977, it was awarded a contract by the Capital Development Board (CDB) to perform certain plumbing work at Oakton Community College, Phase I. A copy of said contract awarding such work is attached hereto and incorporated herein by reference as Exhibit 1.
2. Pursuant to the contract, the original contract price was $698,650.00 for the work to be performed thereunder, but during the course of construction, additions were made increasing the amount of the contract price by an additional $18,678.92 and deductions were made in the amount of $3,756.88 resulting in an adjusted contract price of $713,572.04.
3. The CDB has made payments to A & H in the amount of $675,942.91 leaving an unpaid contract balance due A & H of $37,629.13 after allowing all credits and deductions.
4. A & H has performed all work and all conditions precedent required of it under its contract with the CDB and the aforesaid $37,629.13 is now due and owing to A & H by the CDB.
5. A & H has not assigned or transferred this claim for said unpaid contract balances and is the true owner of the claim now brought against the CDB.
6. Although often demanded, the CDB has failed and refused to pay any portion of the contract balance currently owed to A & H.

F.E. Moran, Inc., filed its claim on December 10, 1986, seeking $30,997.01. In relevant part, F.E. Moran, Inc., alleged in its verified complaint the following:

1. Moran is an Illinois corporation with offices at 2265 Carlson Drive, Northbrook, Illinois.
2. On or about September 9, 1977, Moran and CDB entered into a contract wherein Moran was to furnish certain ventilation and air distribution work at Oakton Community College for which Moran was to be paid the sum of $863,600 (attached and incorporated herein is a copy of said contract).
3. From time to time during the performance of Moran’s duties certain changes in the contract were agreed to by the parties. The total agreed-upon contract price including the agreed-to changes was $893,889.53.
4. Moran has fully and completely performed all of the work agreed to and all of its responsibilities under the contract.
5. CDB has paid Moran $862,892.52.
6. After demand, CDB has refused to pay the remaining unpaid balance of $30,997.01.

Thorlief Larsen & Son, Inc., filed its claim on April 20, 1989, seeking $536,469.63. Thorlief Larsen & Son, Inc., filed a standard lapsed appropriation form complaint alleging that it made demand for payment to the CDB but the demand was refused on the grounds that the funds appropriated for the payment have lapsed. Incorporated in and attached to the form complaint was another complaint wherein the Claimant further explained the nature of the claim. In relevant part, the Claimant made the following verified allegations:

1. This claim is for breach of contract and recovery is sought under section 8(b) of the Court of Claims Act. (111. Rev. Stat., ch. 37, par. 493.8(b).)
2. Claimant is a corporation organized and existing under the laws of the State of Illinois with its principal place of business located in Itasca, Illinois. The Respondent is an agency created by the State of Illinois.
3. As of September 9, 1977, Claimant and Respondent entered into a written contract for the construction of the project described as “General Work Oakton Community College Phase I.” A true and correct copy of the contract is attached hereto and made a part hereof as Exhibit 1.
4. The contract provides that Claimant is to be paid a base contract price of $5,361,780 subject to adjustment for change order additions and deletions and for fees on change order work of assigned contractors.
5. During the course of Claimant’s work on the project, the contract price was adjusted by change order word by a net increased amount of $409,817.59. Of that amount, $370,492.24 represents change orders which have been processed by Respondent and $39,415.35 represents change orders which have not yet been processed by Respondent.
6. In addition, Claimant has earned $4,486.97 in fees on the change order work of contractors assigned to it under the contract.
7. Based upon the foregoing adjustments, the adjusted contract price is $5,776,084.56. To date Claimant has been paid $5,229,735.50 leaving due and unpaid $546,349.06.
8. Claimant has previously submitted on February 2, 1989, and then again on March 13,1989, to the Respondent to the attention first, of Robert Pierce and then of Bruce Boncyzk a request for payment of the $546,349.06. On April 3, 1989, Respondent denied the request because of lapsed appropriations.
9. Respondent’s failure to act and failure to pay the $536,469.63 constitutes a breach of the contract.
10. Claimant has satisfactorily performed its obligations under the contract, or in the alternative, is excused from strict performance.
11. Claimant is the owner of the claim asserted herein by virtue of being a party to the contract.
12. Claimant has made no assignment or transfer of the claim.
13. Claimant is justly entitled to the amount claimed herein after allowing Respondent all just credits.
14. Claimant believes the facts alleged in this complaint to be true.
15. Neither this claim nor any claim arising out of the contract has been previously presented to any person, corporation or tribunal other than the State of Illinois except that Claimant is alleging that, to the extent the contract balance is not paid by Respondent, it is entitled to a set-off in the case entitled Board of Trustees of Community College District No. 535 v. Perkins & Will Architects, Inc., docketed in the circuit court of Cook County, Illinois, as No. 82 L 3456. No credits on account of the allegation of set-off have yet been realized.

Attached to this complaint were various letters and documents supporting the allegations.

On April 27,1990, the parties to the A & H Plumbing and Heating Company, Inc., claim filed a joint stipulation which in pertinent part states as follows:

1. The claim was brought for services provided for the Claimant for work on Oakton Community College. Capital Development Board project No. 810-072-001, CDB contract No. 8-1131-42. Claimant herein is seeking $37,629.13 based on work done pursuant to said contract.
2. The services for which this claim is made were performed to the specifications and satisfaction of the Capital Development Board.
3. The project funds and contingency funds for Oakton Community College Capital Development Board Project No. 810-072-001 have been depleted. No additional money is available for payment of this claim.
4. The Respondent agrees that had the Oakton Community College, Capital Development Board Project No. 810-072-001 not been depleted, the Capital Development Board would have paid the Claimant, A & H Plumbing and Heating Co., Inc., $37,629.13.
Wherefore, the parties respectfully move this Court to enter an order dismissing the claim herein.

On May 16, 1990, the parties to the F. E. Moran, Inc., claim filed a joint stipulation which in pertinent part states as follows:

1. That this claim was brought for certain ventilation and air distribution work performed by Claimant on Phase I of the Oakton Community College, CDB Project No. 810-072-001, CDB Contract No. 8-1133-44.
2. That the services for which this claim is made were performed to the specifications and satisfaction of the Capital Development Board.
3. That the project funds and contingency funds for Phase I of the Oakton Community College, Capital Development Board Project No. 810-072-001 have been depleted. No additional money if available for payment of this claim.
4. The Respondent agrees that had the Oakton Community College, Capital Development Board Project No. 810-072-001 funds not been depleted the Capital Development Board would have paid the Claimant, F. E. Moran, Inc. $30,997.01.
Wherefore, the Respondent respectfully moves this court to enter an order dismissing the claim herein without prejudice.

Less than a week later, on May 21,1990, the parties to the Thorlief Larsen & Son, Inc., claim filed a joint stipulation which in pertinent part states as follows:

1. This proceeding was commenced by the filing of a complaint for recovery of a lapsed appropriation, pursuant to section 790.50(d) of this Court’s rules, in the amount of $546,349.06. The amount was incorrectly stated on the face of the Complaint as $536,469.63. The correct amount is particularized on Exhibit 2 to the Complaint, and the parties further stipulate that the complaint is amended on its face to read $546,349.06 instead of $536,469.63.
2. The appropriation lapsed as of September 30, 1985, for Capital Development Board (CDB) Project No. 810-072-001, CDB Contract No. 8-1130-41 by and between the Claimant and the CDB (the Contract). The Contract is for the construction of the project described as General Work, Oakton Community College Phase I (the Project).
3. The appropriation lapsed because the Project User, the Oakton Community College, filed a suit in the circuit court of Cook County, Illinois, against the CDB’s architect, its various prime contractors, including Claimant, and the prime contractors’ sureties for the Project. This suit is entitled Board of Trustees of Community College District No. 535 v. Perkins & Will Architects, Inc., and is docketed as No. 82 L 3456 (the User Suit). The User Suit alleged various design and construction deficiencies against the defendants. As a result of the User Suit, Respondent stopped. making payments to Claimant and the appropriation for the Project subsequently lapsed on September 30,1985.
4. After protracted negotiations between the User and the defendants, the User Suit was settled. A copy of the settlement agreement between the User and the Claimant was delivered to the CDB, and as a consequence of the settlement, the CDB has released any and all claims it might have against the Claimant arising out of the construction of the Project. On February 21, 1990, the User Suit was dismissed with prejudice.
5. Based upon the settlement and dismissal of the User Suit, Claimant is entitled to be paid the contract balance due under the Contract.
6. The Claimant’s claimed Contract balance of $546,349.06 consists of three components: base contract amount, change orders to the base contract amount for extra work to the Contract which the CDB acknowledges was authorized but which has not yet been approved for payment by the CDB because of the filing of the User Suit (“Authorized Extra Work”), and change orders to the base contract amount for extra work to the Contract which Claimant contends was requested by the CDB but which the CDB has not yet approved or disapproved because of the filing of the User Suit (Undetermined Extra Work).
7. The CDB agrees that it will process for payment the Authorized Extra Work and will promptly review and consider for approval the Undetermined Extra Work.
8. The CDB asserts that Change Order No. 61 to the Contract is a proper change order; however, Claimant disputes that assertion.
9. With respect to the Undetermined Extra Work and Change Order No. 61 described in the foregoing Paragraphs 7 and 8, the parties further stipulate and agree that to the extent those matters cannot be resolved by the parties, Claimant shall file a separate action for recovery in the Court (the Separate Action). Respondent acknowledges that the Separate Action will be timely filed.
10. For purposes of this action, the CDB acknowledges and agrees that not less than $517,251.02 is due Claimant as follows:
Original Contract Amount $5,361,780.00
Plus Change Order Additions 381,904.24
$5,743,684.24
Minus Change Order Deductions ( 28,356.26)
$5,715,327.98
Plus RFP’s not processed 56,284.97
$5,771,612.95
Minus RFP’s not processed 14,747.00
Net Contract Amount $5,756,865.95
Less Payments 5,239,614.93
Net Contract Balance $ 517,251.02
11. The amount of the lapsed appropriation is $475,713.05 for which Respondent further stipulates and agrees judgment should be entered in favor of Claimant with the balance of $41,537.97 to be the subject of Claimant’s Separate Action.
12. Allowing the entry of judgment now in this action in the amount of the lapsed appropriation of $475,713.05 will give the CDB the additional time needed to approve for payment the Authorized Extra Work, to evaluate the Undetermined Extra Work, and to combine the results of the approval and evaluation with the Admitted Balance as the subject matter of Claimant’s Separate Action.
13. In addition, allowing the entry of judgment now in this action will satisfy the Project User’s request that funds be released to facilitate the implementation of the settlement reached by the User with Claimant. The User has represented to the CDB that it seeks prompt resolution of this action so that Claimant can perform certain remedial work at the Project in the coming summer months “so as to avoid undue disruption and hazard to [the User’s] students and staff.”
14. There are presently pending in the circuit court of Cook County, Illinois, in a consolidated proceeding (the Lien Action) the following lien claims against public funds filed by certain subcontractors of Claimant pursuant to 111. Rev. Stat., ch. 82, par. 23 (the Mechanic’s Lien Act):
Engineered Erection Company $ 27,935.00
Du-Al Floor Company, Inc. $ 10,054.00
Kleich & Galanis Kontractors, Inc. $250,782.00
15. Claimant has represented to the CDB that it believes it will be able to deliver to the CDB within approximately 30 days certified copies of Court orders dismissing the above mechanic’s lien claims in the Lien Action.
16. To the extent that Claimant cannot provide such Court orders, the proceeds of any judgment entered on the basis of this joint stipulation shall be paid into the Clerk of the Court hearing the Lien Action for further distribution pursuant to section 23(a) of the Mechanic’s Lien Act.
17. In the interest of reducing the time and expense of trial and in recognition of Claimant’s right to payment, Respondent consents to the entry of judgment in favor of Claimant and against Respondent in the amount of $475,713.05, it being understood and agreed that Claimant hereby reserves the right to pursue the balance of its claim by the separate action in this Court.

This Court is not bound by such stipulations and, based on the record before us, we cannot wholly acquiesce in approving these now before us. The entire record in each case consists primarily of the complaint and stipulation. (Some discovery is on file in the A & H Plumbing and Heating Company, Inc., case.) Based on our reading of the stipulations, we find that all three Claimants are vying for the same lapsed funds and that an insufficient amount of money lapsed to satisfy in toto all of the claims. In such circumstances, it is the Court’s policy to make awards on a FIFO basis. (Aurora College v. State (1985), 37 Ill. Ct. Cl. 321.) Claimant A & H Plumbing and Heating Company, Inc., filed its claim first. For that reason we will deny the parties’ request to dismiss and, based on the stipulation, grant an award in that case in the amount of $37,629.13.

Claimant F.E. Moran, Inc., filed its claim next. We will therefore deny the Respondent’s request for dismissal of that claim and, based on the stipulation, we will grant an award in that case in the amount of $30,997.01.

The claim by Thorlief Larsen & Son, Inc., presents different issues. First, at paragraph 10 the CDB acknowledged that not less than $517,251.02 was due the Claimant. At paragraph 11 the CDB agreed that an award in the lesser amount of $475,713.05 should be made. That lesser sum is the amount which lapsed. The difference between the two amounts is $41,537.97. This difference was said at paragraph 11 to be the subject of a “separate action” to possibly be brought by the Claimant. Yet at paragraph 9 the possible “separate action” was described as involving matters the parties may not be able to resolve. Thus there is an ambiguity in that on the one hand the parties stated that the matter would be reserved because they may not be able to resolve the dispute and on the other hand the CDB agreed that the money was due. Regardless, this Court could not award the $41,537.97 because it is clear that it did not lapse. Rather than allow the filing of a separate action for that balance, we will keep this case open and retain jurisdiction. The parties may take whatever action they deem necessary following the entry of this order.

After subtracting the amounts we will award to A & H Plumbing and Heating Company, Inc., and to F.E. Moran, Inc., the lapsed balance left for the Thorlief Larsen & Son, Inc., claim is $407,086.91. Based on the record before us, we will award that sum.

Due to the amounts of the awards and to the fact that CDB bond money is involved (appropriation number 141-51184-4473-0376) funding of the awards will entail legislative approval. In brief, the usual and customary process involves inclusion of the awards in what is commonly referred to as the Court of Claims Special Awards Bill. The Special Awards Bill contains the awards made by the Court which it is unable to pay directly. Each award is separately set forth in the bill and the bill provides for appropriating monies to the Court for the payment of the awards. Conditional upon approval of the bill by the General Assembly and the Governor, the Clerk’s Office then causes a voucher to be sent to the Comptroller for generation of a warrant made payable to the Claimant in satisfaction of the judgment. The existence of the liens in the Thorlief Larsen & Son, Inc., claim presents an issue not regularly faced by this Court. As of the date this order is filed, the Claimant has not produced and filed with the Court certified copies of Court orders dismissing the lien actions. Provision for reservation of a portion of the award must be made for the possibility that the liens will continue to exist during and after the appropriations process. For that reason, the General Assembly, Governor, and Comptroller are advised that the proceeds of any appropriation made to fund the judgment entered in the Thorlief Larsen & Son, Inc., claim will not necessarily be dispersed directly to the Claimant. Portion of any appropriation may be directed to the appropriate circuit court or the lienholders by a later order from this Court. The Court of Claims urges those involved in the process of paying the judgment in the Thorlief Larsen & Son, Inc., claim to acquiesce in this somewhat irregular procedure in recognition of the CDB’s statements at paragraphs 12, 13, and 17 of the joint stipulation. The award may be reduced depending on the existence of other claims made against the lapsed funds involved herein.

It is hereby ordered that:

1. Claimant F.E. Moran, Inc., be, and hereby is, awarded the sum of $30,997.01 in full and final satisfaction of its claim, No. 87-CC-1318;

2. Claimant A & H Plumbing and Heating Company, Inc., be, and hereby is, awarded the sum of $37,629.13 in full and final satisfaction of its claim, No. 86-CC-0929.

3. An award in the sum of $407,086.91 be, and hereby is, made in the claim of Thorlief Larsen & Son, Inc., No. 89-CC-3279, payment of which is not to be made until further order of this Court;

4. The Court will retain jurisdiction over Claim No. 89-CC-3279 for purposes of ordering how the proceeds of any funds appropriated for the award therein will be disbursed and to hear and determine whatever issues remain unresolved by this order including, but not limited to, what the parties referred to in their joint stipulation as “the Separate Action.” Payment of the award in claim No. 89-CC-3279 will not be withheld pending final resolution of all issues therein, but shall be made as soon as reasonably practicable.

5. The Respondent is to advise the Court within 30 days of any other claims arising out of the project.


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (No. 86-CC-2153
    William Neitzke, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 11, 1989.

    Nilson, Stookals & Bobrow, Ltd. (Stuart J. Bobrow, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Daniel Brennan, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant, William Neitzke, filed a claim, sounding in tort, seeking compensation for personal injuries suffered by him during his employment, pursuant to section 8(a) of the Court of Claims Act. (III. Rev. Stat., ch. 37, par. 439.8(a).) The verified complaint filed in support thereof named certain individuals as agents of the Illinois Department of Transportation (IDOT), as well as the State and, in addition to compensatory damages of $1,000,000, seeks punitive damages of $5,000,000.

Claimant, age 73 and married, was employed by the State of Illinois (IDOT)) as a highway maintainer beginning in February 1971. On May 1, 1981, while engaged in his employment, Claimant injured himself severely and was placed on temporary total disability by Respondent. Thereafter, a claim was filed by Claimant before the Illinois Industrial Commission (case no. 81-WC-46056) for adjudication of his injuries and he remained on disability continuously from January 1982, until August 1,1984.

Dr. Ben Camacko examined Claimant at the request of Respondent on April 23, 1984, and based upon such examination and evaluation of the records of IDOT submitted to him by said agency, submitted two reports dated April 24, 1984, and May 20, 1984, and recommended in said reports that “the man can be employed, but he has to have certain restrictions.”

In July 1984, Respondent contacted Claimant for the purpose of obtaining light duty work for him, commensurate with Dr. Camacko’s findings and Claimant failed to report to said light duty assignment as requested by Respondent.

Subsequently, discharge proceedings were initiated by Respondent, who based such action on job abandonment by Claimant because of his refusal to return to work. Claimant thereupon instituted proceedings before the Illinois Civil Service Commission (case no. D.A. 63— 85). During these proceedings before the Civil Service Commission, Respondent rescinded its termination of Claimants employment and he was reinstated, together with all accrued disability benefits that he was entitled to during the period involved.

The Claimant then filed a petition before the Illinois Industrial Commission (case no. 81-WC-46056) wherein the arbitrator adjudged the Claimant to be completely disabled and awarded him the sum of $250.38 per week for life, as provided by statute.

On September 28, 1988, we denied Claimant’s motion to adjudicate claim of Claimant finding that “there is no authority for asserting punitive damages against the State of Illinois.”

Claimant, in closing his proofs at the hearing before the Commissioner, has asked that he be awarded approximately $22,000 in compensatory damages, apparently abandoning his original claim of $1,000,000, and bases such claim on what Claimant would have accrued for vacation time and sick time from January 1982, to November 1987. In addition, prior to his injury, Claimant has also accrued substantial vacation days, and during the course of these proceedings, Respondent has already stipulated that Claimant has accrued said vacation pay due and owing in the amount of $1,552, prior to his going on disability.

We have previously decided the issue of punitive damages against the Claimant. We also note that Claimant’s counsel, by letter dated December 5, 1988, addressed to the Commissioner, requested that his arguments in support of the punitive damages issue as contained in his memo in support be ignored.

The claim of compensatory damages of $22,000 is based upon what Claimant would have accrued for vacation time and sick time from January 1982, to November 1987.

The issue of compensatory damages in the amount of $22,000 for accrued vacation and sick pay during Claimant’s incapacity for the period from January 1982, to November 1987, is governed, as the Claimant has alleged, by the terms of a teamster’s contract under which the Claimant is admittedly covered, the pertinent terms of which state:

“11.1 Vacation sick leave ' ° '.In addition, commencing July 1, 1979, an employee going on service connected disability leave 0 0 0 shall accrue vacation and sick leave credits during such leave, as though working, the same to be credited to the employee upon the employee’s return to work.” (Underscoring supplied.)

Under the above text of the teamster’s contract, the Claimant would have had to return to work in order to qualify to receive such vacation and sick leave pay. In the case at bar, Claimant has never returned to work.

Accordingly, the claim of $22,000 must be denied. However, he is entitled to the accrued vacation pay prior to injury and before going on disability leave. Respondent has stipulated to the amount of $1,552.

In addition to the above issues, Claimant seeks to submit, for approval and payment by this Court, unpaid medical bills incurred long after his adjudication of being totally disabled by the arbitrator in the Industrial Commission proceedings. Obviously, these bills come within the scope of the continuing order of said arbitrator to pay the Claimant’s related medical bills, which is within his sole jurisdiction. Therefore, the claim of Claimant for unpaid medical bills accrued subsequent to his adjudication of total disability is denied.

Claimant has also sought damages from several employees of IDOT, Fred Hoegler, Bill Piland, Joseph Kostur and Jacqueline Hickman. Section 8(d) of the Court of Claims Act (Ill. Rev. Stat., 1987, ch. 37, par. 439.8(d)) specifically provides that this Court is authorized to adjudicate all claims against the State in cases sounding in tort. This language indicates that only the State of Illinois is a proper party defendant in tort cases. The aforesaid IDOT employees are dismissed as parties to this action.

It is therefore ordered, adjudged and decreed that Claimant William E. Neitzke is awarded one thousand five hundred fifty-two and no/100 dollars ($1,552.00) in full and complete satisfaction of this claim.


author: POCH, J.

text:
    (No. 87-CC-0304
    Jennifer Taylor, a minor, by Charles Taylor and Karen Taylor, Individually and as Next Friends, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 3, 1989.

    Borla, Kubiesa & Power, for Claimant.
    Neil F. Hartigan, Attorney General (Daniel H. Brennan, Jr., Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This matter comes before the Court upon the joint stipulation of the parties hereto. This claim sounds in tort and is brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(d)).

Claimants are Jennifer Taylor, an infant, and her parents, Charles Taylor and Karen Taylor, both individually and as next friends of Jennifer Taylor.

Claimant Jennifer Taylor sustained bodily injuries, and her parents sustained out of pocket medical expenses, when Jennifer Taylor was gored by the horn of one of two oxen kept and maintained by the Illinois Department of Conservation, at Lincoln’s New Salem, State Park, in Sangamon County, Illinois.

We note that the parties hereto have agreed to a settlement of this Claim, and that Respondent agrees to the entry of an award in favor of Claimants in the amount of $1,080.

Based on the foregoing, Claimants, Jennifer Taylor, and Charles Taylor and Karen Taylor, both individually and as next friends of Jennifer Taylor, an infant, are hereby awarded the sum of one thousand eighty dollars and no cents ($1,080.00) in full and final satisfaction of these claims.


author: Patchett, J.

text:
    (No. 87-CC-0411
    Reverend Joe Woods, D.D., Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 2, 1989.

    Reverend Joe Woods, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (James C. Majors, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

The Claimant in this case is an inmate in an Illinois penal institution. He has brought this action to recover the value of certain items of personal property which were lost during his transfer between various institutions. The Claimant has contended that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State of Illinois is liable as a bailee for the return of that property.

This Court has consistently held that the State is liable where they have possession of personal property of inmates and the property is lost through an unexplained act or event. In Doubling v. State (1976), 32 Ill. Ct. Cl. 1, this Court set forth the standards which an inmate must meet in order to recover an award for the property. There, this Court held that Claimant must plead and prove, by a preponderance of the evidence, that the property described in the complaint was in fact delivered to an agent of the Respondent, that it was not returned to the Claimant, that the Respondent did not utilize reasonable care to insure its return and the value of the property allegedly lost.

This Court has also consistently held that the State is not liable for the loss of property unless it is in the exclusive possession of the State. For instance, the State is not necessarily liable for the loss of property that an inmate keeps in his cell during that inmate’s absence from that cell.

In the case of Tedder v. State (1987), 39 Ill. Ct. Cl. 47, we expanded on the holding in Doubling to indicate that the loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. Therefore, we feel that for the Claimant herein to recover in the present case, he must prove that the property described in the complaint was in fact delivered to an agent of the Respondent, that it was not returned to the Claimant, that the Respondent did not utilize reasonable care to insure its return and the value of the property allegedly lost. Expanding on the Doubling and Tedder cases, we feel that once the Claimant has proved that the property was in fact delivered to an agent of the Respondent, then there may arise a presumption of negligence upon the part of the Respondent if the property in question was lost or damaged while in his possession.

In the present case, we find, after reviewing a transcript of the evidence in this case, that in fact the Claimant did have certain personal property placed in the sole and exclusive possession of the Respondent. We further find that certain parts of that personal property were not returned to him, thereby raising the presump-

tion of negligence on the part of the Respondent. Finally, we have considered the evidence brought forth in the hearing as to the value of the items lost. Testimony at the hearing in this case indicated that the items lost by the Claimant included the following:

(a) 15 course and law books, total $500.00
(b) Dress shoes, total $45.00
(c) Six law books, total $398.85
(d) Webster’s Dictionary, total $12.00
(e) Three tee shirts, total $24.00
(f) Two blue jeans, total $24.00
(g) Two blue jean jackets, total $28.00
(h) Paper, total $14.85
(i) Eight-track tapes, total $134.00
(j) Three transfer letterings, total $3.78
(k) Stencils, total $42.00

A more difficult situation arises as to the valuation of two other items of missing personal property. The first of these was a trial manuscript which had been provided to the Claimant free of charge while an indigent defendant in Cook County. At the time of the hearing before the Commissioner in this case, the inmate was attempting to pursue a post-conviction hearing. In order to pursue that post-conviction hearing, he had to have a copy of the trial transcripts. In attempting to obtain another transcript, he was informed that it would cost him the sum of $955.70. This evidence was admitted, and no rebuttal was made.

The Claimant also claimed a loss of numerous personal photographs. Some of these photographs were Polaroids, and some of these photographs were conventional photographs for which there were probably negatives available. However, the actual availability of negatives with which to reproduce the

prints which were lost was not adequately addressed at the hearing before the Commissioner.

We feel that the Claimant has stated and proved a cause of action against the State of Illinois for the loss of his personal property. We feel that he has clearly proven monetary loss of $1,226.48 for the items indicated above. In addition, we believe that he is entitled to compensation for the lost transcripts, even though they were originally provided to him free. Since there was no testimony as to the value of the personal photographs lost or of a reasonable way to replace those photographs, we award the sum of $100 for those photographs. Therefore, we award the Claimant in this the sum of two thousand two hundred eighty two dollars and eighteen cents ($2,282.18).


text:
    No. 87-CC-0505
    Jack Evans, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 28, 1989.

    Jack Evans, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

Claimant is seeking $300 in damages. He alleges the State lost certain items of his personal property when the State took control of the property as he was transferred from one prison to another. The evidence consists of the departmental report filed October 23, 1986, the transcript of testimony heard before Commissioner kobert Frederick, and Claimant’s Exhibits 1 and 2. The Respondent filed a brief, but Claimant did not file a brief. Commissioner Frederick has duly filed his report.

In September of 1985, while Claimant was a prison inmate at the Menard Correctional Center, he was remanded to McLean County. On November 14, 1985, after resentencing, he was sent back to Menard. Before leaving, a personal property inventory was completed for Claimant’s property which is Claimant’s Exhibit 1. An Officer Bell filled out the November 14, 1985, inventory. However, Claimant was first sent to Joliet before going to Menard. Though he was not to be at Joliet for more than a few days, he wound up staying there for four weeks. All of his personal property except for his cigarettes and photographs were stored by the Department of Corrections (DOC). The personal property of Claimant was placed in a green garbage can liner and was to be sent to Menard. On December 10, 1985, Claimant was finally sent to Menard. Claimant filled out his personal property record which is Claimant’s Exhibit 2. This consisted of all property in Claimant’s possession at that time and not property being held by DOC in storage.

When Claimant arrived at Menard he found that the previously stored property consisting of legal documents, a legal book, and some clothing did not arrive. Claimant was told by an officer that the property would be coming on the next transfer bus, but the property never was returned to Claimant. The missing items are legal documents, the legal book, dress shoes, two pairs of underwear, three pairs of white socks, and a two-piece suit which belongs to the State. The departmental report indicates Claimant would not be charged for the lost State clothing. The legal documents were three court files. The cost of recopying the two files from McLean County for Claimant comes to $111 and to copy the one court file from De Witt County comes to $43.50. The legal book was Constitutional Rights of the Accused and cost $40. The underwear cost $6 the white socks cost $3. No proof was offered as to the value of the dress shoes.

This Court held in Doubling v. State (1976), 32 Ill. Ct. Cl. 1, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions. The Claimant has established a bailment, the loss of property and the reasonable value of the loss at $203.50. The Claimant through his testimony has raised a presumption of negligence which has not been rebutted by the State. (See Rock v. State (1978), 32 Ill. Ct. Cl. 664; Moore v. State (1980), 34 Ill. Ct. Cl. 114; Davis v. State (1978), 32 Ill. Ct. Cl. 666.) In fact, the State presented no evidence to rebut the presumption of negligence. The departmental report referred to another inventory but such inventory, if it exists, was never presented to the Court.

Based on the foregoing, it is hereby ordered that Claimant be awarded $203.50. It is further ordered that the State’s motion to revoke Claimant’s in forma pauperis status be denied.


text:
    (No. 87-CC-1055

      In re Application of Geneva Schaffer

      Opinion filed November 28, 1989.

    Law Offices of Joseph V. Roddy (Thomas J. Pleines, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This is a claim for compensation arising out of the death of Rudolph J. Schaffer, Jr., a police officer for the City of Chicago, pursuant to the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics and Firemen Compensation Act (the Act.) (Ill. Rev. Stat. 1985, ch. 48, par. 281 et seq.) The Claimant is Officer Schaffer’s widow. A hearing for this matter was held on May 9,1988, before Commissioner Michael Kane. The Claimant has filed a brief, but there is no indication that the Respondent has filed a brief. Commissioner Kane has duly filed his report with the Court.

The record reveals that on February 1,1986, Officer Schaffer was assigned to the electronics maintenance unit at 1121 South State Street, Chicago, Illinois. The Claimant testified that on that date he arrived home after work at approximately 4:45 p.m., ate his dinner and played with his children. Later that evening he left his home on the southwest side. The Claimant assumed he was going to buy some cigars and then visit his father who was a patient at the University of Chicago Hospital. He had visited his father every night that week. Mrs. Schaffer last saw her husband as his van pulled north on Springfield Avenue. When he left his house that evening he had his weapon with him. Mrs. Schaffer stated he was dressed in a red and blue plaid shirt, a black leather belt, blue work pants, black socks, black leather dress shoes, and blue, three-quarter length jacket.

The record further reveals Officer Schaffer drove his van to the vicinity of 6900 South Peoria where he stopped Angelia Lathan, a pedestrian. Ms. Lathan testified she was asked by Mr. Schaffer if she knew where he could get some marijuana. After discussing one possible source of marijuana with Officer Schaffer, Ms. Lathan noticed that Sylvester Henderson and Calvin Trice were coming down the street. She asked them if they had any marijuana. Calvin Trice said he had none, but told her to have the man pull into the alley. Sylvester Henderson claimed he had some marijuana, so Ms. Lathan directed Officer Schaffer to pull into the alley. Officer Schaffer pulled around the corner into the alley. Trice and Henderson walked towards the van in the alley. Officer Schaffer stepped outside of his van and at that point, Trice and Henderson announced a robbery. Ms. Lathan stated that Officer Schaffer then reached inside of his coat saying, “It’s not going to be like that,” whereupon he was shot by Henderson and stumbled back into his van. Trice then took the weapon and shot Officer Schaffer again.

The record also indicates that at some point, the van was doused with gasoline and set on fire with Officer Schaffer’s body inside. However, the autopsy performed by the medical examiner’s office revealed that the cause of death was the gunshot wounds.

In addition to the Claimant and Ms. Lathan, John Schaffer, the brother of Officer Schaffer, testified. His testimony combined with that of the Claimant establishes that Officer Schaffer was no doubt a good policeman and a very dedicated family man.

An award may be granted under the Act if it is shown that a police officer was killed in the line of duty as defined by the Act. Section 2(e) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 282(e)) provides, in relevant part, that “ ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer * # # if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause.”

The circumstances surrounding Officer Schaffer’s death, however, establish that on at least this day at this time he was not acting in the line of duty. The testimony of Angelia Lathan, which the Claimant attacked in the hearing, is the same testimony which was utilized to convict Mr. Henderson and Mr. Trice of the murder of Officer Schaffer. The Claimant speculates that Officer Schaffer’s van broke down in the vicinity of this incident leading to the fatal confrontation. There is no evidence to support that theory. The fact that Officer Schaffer was not known by his family to use marijuana is not a controlling factor, nor is it surprising. Such activity would not be difficult to keep from one’s loved ones.

The Claimant cites Davis v. Retirement Board of Policemens Annuity & Benefit Fund of City of Chicago (1972), 4 Ill. App. 3d 221, 280 N.E.2d 735, as support for the proposition that a police officer would be entitled to the benefits even if the officer was attempting to purchase marijuana prior to the shooting. However, a close reading of Davis reveals that Officer Davis, while not actually on duty at the time of his death, was in fact investigating a rape and robbery when he was shot. His contact with the assailant was initiated after being informed of the criminal attack by the victim. The circumstances at hand are totally different. In this case the record is devoid of any evidence to suggest that Officer Schaffer was carrying out any police duty at the time of initial contact with Ms. Lathan. Furthermore, at the time Officer Schaffer first came into contact with his eventual killers, he was still trying to purchase marijuana. There is no evidence that he was doing this in an undercover capacity or that he was engaged in any police operation at the time.

While we sympathize with the Claimant, we regretfully must find that, based on the foregoing, Officer Schaffer was not “killed in the line of duty” as is required by section 2(e) of the Act (111. Rev. Stat. 1985, ch. 48, par. 282(e)) for an award to be granted since it has not been proven by the preponderance of the evidence that his unfortunate death resulted from performance of his duties as a law enforcement officer.

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


text:
    (No. 87-CC-1322
    Susan Rhea Dilbeck, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 6, 1990.

    Fritzshall, Fritzshall & Gleason (Steven N. Fritzshall, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Daniel Brennan, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause comes on to be heard on a complaint filed by Claimant, Susan Rhea Dilbeck, for breach of an oral contract with the Elgin Mental Health Center and the resultant loss of wages, benefits, and career fulfillment for the years 1983 to 1986, both inclusive, at $25,000 per year, totaling $100,000.

The Claimant was employed at the North Aurora Center commencing sometime in 1977, as a resident-living aide, her duties consisting of record write-ups, filing, making rounds, feeding and day-to-day care of mentally ill or mentally retarded patients. The center was previously privately owned and operated, and was accredited by the Respondent to so operate.

On or about December 15, 1979, the Center lost its accreditation due to not meeting State standards, resulting in its closing and the patients, of necessity, were transferred to two Respondent-operated facilities, namely Elgin State Mental Hospital and Tinley Park Hospital. Claimant alleges that, at the time of the transfer of the privately owned North Aurora Center patients to the Elgin State Hospital and Tinley Park facility, both State of Illinois operated facilities, Respondent offered her permanent employment at Elgin in a similar capacity as her employment at the Aurora Center. Russell Legg, personnel officer at the Elgin State Mental Health Center for four years, was called as Respondent’s witness and testified that sometime late in 1979, when the Aurora facility was closed, he received word that its patients were being transferred to Elgin and “we were to pick up about 30 people on emergency appointments and that due to the emergency there would not be time to work in a Civil Service list; that we could hire people on an emergency basis only.” He further stated that their employee cards were to be marked with “H” indicating a termination date of 2/15/ 80, and that they were given the option to seek permanent employment by taking a civil service examination; they must, however, make a high enough grade to get on the “A” list, which list is resorted to when vacancies occur, “A,” “B,” “C,” in rotation.

There appears to be nothing in the record to support Claimant’s theory that she was employed at the Elgin facility on a permanent basis as a civil service employee without qualifying through the normal channels of sitting for the required civil service examination and personal interview and being placed on the “A” list, from which list permanent civil service employees are selected when vacancies occured.

Ms. Alice Dickens, co-worker with Claimant at North Aurora Center, and one of the many employees transferred, in response to the question “in order to be hired, you would have to successfully pass all civil service requirements to be employed; is that correct?”, stated “Pass the test, yes.” Claimant took the required civil service examination sometime in 1980, received a “B” and proceeded to repeat the test intermittently and did not receive an “A” until 1983, three years after her 1979 transfer of employment to the Elgin facility. Claimant testified that she was advised that it would be necessary to take such a written test. This being the case, Claimant’s allegations that she was promised permanent employment at the Elgin facility by a Dr. Wolf, director at North Aurora Center, who was not a State employee and had no contractual authority to so bind the Respondent, had no force or effect on the issue as to whether the Respondent had entered into a contract of employment with Claimant on either a temporary or permanent basis.

Claimant further seeks to enforce an oral contract of employment, which by its nature, was continuous employment and exceeded one year. An examination of the record does not establish such a contract, but if such oral contract was created, it would be unenforceable under the Statute of Frauds. In response to the question posed to Claimant as to what circumstance or what indication or correspondence or notes did she receive indicating that she was being invited to become an employee at the Elgin State Hospital, she replied “ * # » we t00]< it by word of mouth.”

The deputy facility director at the Elgin State Hospital testified that Claimant, having attained a grade of “B” when she took the examination in 1980, did not qualify for placement and that, at that time, there were sufficient applicants on the “A” list to meet the present vacancies.

There is no basis for contract of employment by the Respondent, inasmuch as there is no oral or written contract of employment in the case at bar. The civil service requirements for employment in certain types of employment, of which Claimant’s class is included, govern in this instance and no supervisor or director has any authority to circumvent such requirements and bind the Respondent. Claimant did not attain the required grade “A” until three years after the date the alleged employment contract commenced.

Further, State employees can only bind the State to the extent that they have the lawful authority to so bind, under the agency theory, and no such authority existed in this instance. Claimant relies on the representations that a Dr. Wolf, director of the terminated North Aurora Center, entered into an employment contract with Claimant and that constituted the basis of enforcing an employment contract with Respondent. This is without merit, since Dr. Wolf was neither an employee of the Respondent, nor could he bind Respondent in any type of employment contract, written or oral.

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


text:
    (No. 87-CC-1748
    Joshua Moore, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 29, 1989.

    Joshua Moore, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

Claimant’s complaint alleges that certain of his personal property was damaged by a fellow prison inmate when a guard let the other prisoner into his cell. The State, besides contesting the claim, has raised other issues. The State seeks a set-off for $600 for funeral expenses paid by the Department of Public Aid. The State also seeks a revocation of Claimant’s in forma pauperis status.

A hearing was held before Commissioner Robert Frederick. The evidence consists of the departmental report, the supplemental departmental report, and the transcript of testimony. Both Claimant and Respondent have filed briefs and Commissioner Frederick hás duly filed his report.

On September 22, 1986, while Claimant was a prison inmate at the Danville Correctional Center, he went to eat and his cell was locked behind him. All inmates have identification cards. When Claimant returned to his cell he found that his cell was open and that certain of his personal property had been damaged, namely his television set, fan, stereo and AM/FM radio. He testified that an officer told him that he had erroneously let another inmate into Claimant’s cell and he was sorry. Guards are required to receive identification before opening anyone’s cell.

Claimant testified that his television set was busted, his stereo demolished, his fan had the fenders broken off and his AM/FM radio was dented and had a bent antenna, but still worked. Claimant further testified he had paid $79 for the television in 1985. He purchased the stereo in 1986 for $131 and the AM/FM radio in 1985 for $47 and had paid $15 for the fan. Testimony also indicated that Claimant earned $15 a month.

Claimant presented his claim through the prison grievance procedure. The investigation by the prison indicated that Officer Summers heard loud banging and glass breaking on September 22,1986. Upon investigating, this officer found inmate Stokes in Claimant’s cell destroying Claimant’s property. The television, stereo and fan had suffered damage to the point of destruction. Inmate Stokes claimed that Claimant had hit him in the head that morning prompting the retaliation. However, there was no evidence to back inmate Stokes’ claim and no officers had reported any altercation between Stokes and Claimant.

The Institutional Inquiry Board found that Correctional Officer Ellett erroneously opened Claimant’s cell and let Stokes in. The Inquiry Board indicated Claimant had receipts for his property showing the purchase prices claimed. The Inquiry Board found that Claimant’s grievance was well-founded and that the property was damaged due to the negligence of the correctional officer and recommended Claimant be paid $268.35. The warden overruled the Inquiry Board’s recommendation.

The supplemental departmental report indicates that a Crime Victims Compensation Act award of $60 was made to Maxine Graham in cause 84-CV-0792 for funeral expenses. Arthur Graham was the victim of Claimant’s voluntary manslaughter. The award also made a finding that the Department of Public Aid had paid $600 towards the victim’s funeral.

This Court held in Doubling v. State (1976), 32 Ill. Ct. Cl. 1, that the State had a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property. Various types of constructive bailments have been recognized. (Lewis v. State (1985), 38 Ill. Ct. Cl. 254.) However, in most cases where the property is taken from the cell of an inmate, the Court has denied the inmate’s claim for damages. (Owens v. State (1985), 38 Ill. Ct. Cl. 150; Edwards v. State (1986), 38 Ill. Ct. Cl. 206.) To prevail, the inmate must prove that a guard participated in or acquiesced in the loss of property. (Bargas v. State (1976), 32 Ill. Ct. Cl. 99.) There is no general duty on the part of the State to safeguard an inmate’s property from theft by other inmates when the property is in the inmate’s cell. The State is not an insurer of an inmate’s property and cannot be held responsible where other inmates engage in criminal acts directed at the property. Nor can the State in the exercise of reasonable care be expected to prevent isolated acts of pilferage in the environment of a penal institution.

The present case, however, is different from most cases involving prisoner property damaged in the cell before the Court. The usual case involves unknown perpetrators making entry to the cell by unknown means. In the present case, the perpetrator of the damage to Claimant was let into the cell in violation of policy and apparently without checking identification by a named guard who admits his error. With this evidence, the Claimant’s claim has merit and by using a five-year life on the personal property and reducing each claim of loss by one-fifth, an award could be made for $180.

However, the State had a valid claim for a set-off in the amount of $660 for the Crime Victims Compensation Act award and the Department of Public Aid funeral expense payment. (See Drogos v. State (1960), 23 Ill. Ct. Cl. 207; Choinere v. State (1974), 30 Ill. Ct. Cl. 174; Gettis v. State (1975), 30 Ill. Ct. Cl. 922.) Claimant’s only response to the set-off claim by the State is that the award under the Crime Victims Compensation Act should not have been made for the crime of voluntary manslaughter. This Court has recognized Crime Victims Compensation Act awards where the crime was voluntary manslaughter. (Johnson v. State (1985), 38 Ill. Ct. Cl. 435.) Claimant’s argument is not well taken.

Based on the foregoing, we find that while Claimant has a valid claim for the amount of $180, his claim must be denied because the State has a valid set-off for more than the amount the Claimant could be awarded.

It is therefore hereby ordered that this claim be, and is, denied. It is further ordered that the State’ motion to revoke Claimant’s in forma pauperis status be, and is, denied.


text:
    (No. 87-CC-3002
    Bern Wheel, Claimant, v. The State of Illinois, Respondent.

      Order on motion for summary judgment filed January 19, 1990.

    Roddy, Power & Leahy (Eugene F. Keefe, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Jan Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This cause coming to be heard on Respondent’s motion for summary judgment, due notice having been given the parties hereto, and the Court being fully advised in the premises.

The Court finds that on March 19, 1986, Claimant, Bern Wheel, was on his way to work in downtown Chicago when his right foot stepped into an expansion joint located on the Harlem Avenue overpass above the Eisenhower Expressway (1-290). Claimant was walking to the Chicago Rapid Transit station located on the aforementioned overpass when he fell.

At approximately 6:10 a.m., Claimant left his home on Winonah Avenue on foot and walked south to Harison Avenue, then proceeded west on Harrison Avenue. He climbed a stairway leading to the northeast side of Harlem Avenue and started crossing from the east side to the west side of Harlem Avenue. As he was about three-quarters of the way across the street, Claimant got his right foot caught in an expansion joint and fell.

At the place where Claimant crossed the street, there were no crosswalks nor any other traffic signals regulating pedestrian traffic. There were traffic signals regulating pedestrian traffic, however, for people crossing Harlem Avenue at the intersections of Harrison and Garfield Avenues and Jackson Boulevard.

Whether or not a defendant owes a duty to a plaintiff is a question of law properly addressed by the court in a motion for summary judgment. (Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572.) In the absence of a legal duty in a negligence action, there can be no recovery as a matter of law. (Mason.) In the immediate negligence action, Respondent contends that it does not owe a legal duty to Claimant, and therefore, its motion for summary judgment should be granted.

We note that the State is not an insurer of the safety of all persons upon its streets and highways. (Baren v. State (1974), 30 Ill. Ct. Cl. 163.) The State, however, does have a duty to maintain its roads in a reasonably safe condition for the purposes to which the portion in question is devoted. (Baren.)

The law imposes no general duty on governmental entities for the safeguarding of pedestrians when they are using the public streets as walkways. (Mason, at 573.) Furthermore, a governmental entity does not owe a duty to a jaywalker, in that he is not an intended or permitted user of a street in a reasonably foreseeable manner. Mason.

In Mason, Claimant, a pedestrian, stepped in a hole as she was crossing in the middle of a residential block in order to get to her parked car. The circuit court granted defendant city’s motion for summary judgment stating,

“ ° ° 0 It is reasonable for the City to foresee that only vehicular traffic would use the streets, while pedestrians would use crosswalks to cross to the opposite side of the street, whether to reach a parked car or for some other purpose. Plaintiff was not an intended or permitted user of the street, and thus the City need not have foreseen her injury.”

The Court rested its decision on Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357. In Risner, the plaintiff, a pedestrian, was struck by a CTA bus as he stepped off a sidewalk curb and attempted to cross Adams Street in the middle of the block between State and Wabash Streets in Chicago. Plaintiff crossed the street at a point where there were neither any crosswalks nor any other traffic regulation signals. The Court in Risner stated “the street was for use by vehicular traffic — not pedestrians, except where defendant [had] provided crosswalks or the like.” (Emphasis added.) Risner, at 359.

We find that as in the Risner and Mason cases, Claimant, in the instant cause, was crossing the overpass at a point where there were neither crosswalks, nor any other kind of traffic signal regulating pedestrian traffic. When he placed his foot in the expansion joint and fell, Claimant was not an intended or permitted user of the street whereby Respondent could have foreseen his injury. We hold that Respondent does not owe a duty to Claimant, in that he was not a foreseeable plaintiff by the standards adopted by the aforementioned cases.

Moreover, Respondent is not under a duty to maintain an entire highway so that it will be safe for pedestrian traffic. (Barrett v. State (1959), 23 Ill. Ct. Cl. 149.) Nor does Respondent owe a duty to a pedestrian who crosses a street at a point where there are no intersections or crosswalks. Barrett.

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


text:
    (No. 87-CC-3481
    Xerox Corp., Claimant, v. The State of Illinois, Respondent.

      Order filed July 17, 1989.

    Falls & Samis, for Claimant.
    Neil F. Hartigan, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant, Xerox Corporation, brought this claim against the Respondent’s Teachers’ Retirement System seeking $409.36 for final billings for copies made on traded copiers. Claimant filed a standard lapsed appropriation form complaint alleging that it made demand for payment to the Teachers’ Retirement System, but that the demand was refused on the grounds that the funds appropriated for payment of the bill had lapsed. The Teachers’ Retirement System disputed the claim in part. The parties then filed a joint stipulation agreeing to the entry of an award in the reduced amount of $233.36. That stipulation is now before us.

This Court is not bound by such stipulations. The one at bar raises an issue that should be addressed. The stipulation was based on a report compiled by the Teachers’ Retirement System. The report was offered as prima facie evidence of the facts contained therein pursuant to Section 790.140 of the rules of this Court 74 Ill. Adm. Code 790.140). At items 8 and 9 of the report, the Teachers’ Retirement System explained that its operating funds were not appropriated and the fund from which the bill should be paid, 473-59301-1910-00-99, is a non-appropriated account. For that reason, the monies could not have lapsed as Claimant alleged.

Further, in the usual lapsed appropriation claim where an award is entered, the payment of the award is made with funds on hand appropriated to the Court for such purposes or, if the Court does not have the correct fund on hand, paid with funds appropriated by the General Assembly specifically for the award. For the Court to pay an award in this case would be improper from the State’s fiscal accounting perspective.

For those reasons, the Teachers’ Retirement System should pay the agreed award. We take judicial notice that this claim is for the fiscal year 1986 obligation and that, although the funds do not lapse, the expenditure authority of the Teachers’ Retirement System for that fiscal year expired on September 30, 1986. Without an order from this Court, the payment cannot be made.

Accordingly, it is hereby ordered that the joint stipulation is approved, that the Claimant is awarded $233.36, and that the Teachers’ Retirement System is to pay the award.


text:
    (No. 87-CC-3893
    Timothy Kraemer, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 25, 1990.

    Diana Lenik, for Claimant.
    Neil F. Hartigan, Attorney General (Gregory T. Riddle, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

Claimant, Timothy Kraemer, sued the State of Illinois for personal injuries he suffered on June 10,1985. He alleged that he was injured and suffered damages when his motorcycle crashed as he missed the last turn while eastbound on Anthony Drive near Columbia Trailer Park in Champaign County, Illinois. He further alleged the State was negligent in not properly posting signs and markers warning of the turn and allowing trees to obscure what signs were in the vicinity.

The hearing was held before Commissioner Robert Frederick. The evidence consists of the transcript of testimony, the evidence deposition of David Morgan, the evidence deposition of Christopher Billing, the evidence deposition of Dr. Adolph Lo, Claimant’s Group Exhibit 1 (pictures), Claimant’s Group Exhibit 2, Claimant’s Exhibits 3 and 4, Claimant’s Group Exhibit 5, and a stipulation marked Exhibit 6. Both parties have filed their briefs and Commissioner Frederick has duly filed his report. Oral argument was held before the judges of the Court of Claims on May 8,1990.

On June 9, 1985, Claimant spent most of the day with one Chetina Murphy, the house manager of a local restaurant. Ms. Murphy was a subpoenaed witness who did not want to testify against Claimant. During the afternoon of June 9, 1985, she went to a pig roast at a local tavern with Claimant and later that night went to another tavern, “The Alley Cat,” with Claimant. During the afternoon both she and Claimant were drinking intoxicating liquors. She was drinking beer but does not remember what Claimant drank. After 9:00 p.m. on June 9, 1985, Murphy and Claimant arrived at “The Alley Cat.” They stayed at this tavern until closing time between 1:00 a.m. and 1:30 a.m. on June 10, 1985. Near closing time Claimant and Murphy planned to go to one Linda Payne’s house with some other people who were also at the tavern. Murphy rode on the back of Claimant’s motorcycle. She further testified that Claimant was under the influence of alcohol when he left “The Alley Cat,” but she did not say to what extent. Claimant testified he may have had two beers at “The Alley Cat” and possibly could have had more. Murphy believed she was drunk while riding on the back of Claimant’s motorcycle and she further believed Claimant was driving too fast to make the curve where the accident at issue took place. Murphy rode behind Claimant on the motorcycle and hung onto Claimant’s sides.

Claimant’s motorcycle was a 1976 black Kawasaki which was in good working condition on the date of the accident. Also, it had new tires. Claimant testified that his motorcycle was a dangerous vehicle as it was on two wheels and balance must be kept. When Claimant left “The Alley Cat,” he was following a car because he did not know where Linda Payne lived. He did not believe he was under the influence of alcohol. He proceeded to follow the vehicle across town on University Avenue to Cunningham, went north on Cunningham under the interstate highway, and then took a right at the first stoplight which was the frontage road. This was Claimant’s first time driving on this road. According to Claimant, as he drove down the frontage road he was going 30 to 35 miles per hour. When he came up to the first turn he slowed to make the turn, sped up a little bit, saw the next curve sign after he got past a tree so he slowed down to make that turn and then sped up a little bit more. Since there was no sign, he did not think there was a curve and then he was on the curve before he knew what had happened. He had observed the brake lights of the car he was following go on and he let off the gas to slow down, but did not use the brake. As he entered the last curve, he tried to stop by braking but could not stop and he slid into a fence. The motorcycle climbed the fence and fell back over on Claimant. The second curve sign was obscured by a tree and he could not see that sign until he was even with it. The road was bumpy and had loose gravel on it. There were signs for the first two curves and speed limit signs on the frontage road, but no signs for the third curve.

The pictures of the frontage road indicate a two-lane roadway to the north of Interstate 74. The roadway has clearly marked lanes. The first turn is not shown in Group Exhibit 1. The second turn is preceded by a straightaway of several hundred yards. The speed on the straightaway is posted at 35 m.p.h. The curve is a left-hand curve. A large overhead sign indicating an exit on the Interstate is just to the right of the curve and the sign goes over the Interstate. There is a curve sign just before the second curve which is obscured by a tree.

The third curve, where the accident occurred, appears to be about 200 feet after the second curve. There are large, overhead lights on the Interstate just to the right of the curve. There is no curve sign preceding this curve. This curve also curves to the left and is a sharp curve. At the end of the last curve is a stop sign. Just past the middle of the last curve is a sign that says Columbia Village which was Claimant’s destination.

Michael Fancher, Claimant’s witness, testified that he left “The Alley Cat” at closing time with two women and he talked with Claimant and Chetina Murphy in the parking lot. He had two beers at “The Alley Cat.” They all decided to go to Linda Payne’s house to socialize. He was riding his own motorcycle. Claimant was going to follow Fancher to Payne’s house. Mr. Fancher had only been there one prior time. He testified that the frontage road was dark, had loose gravel on the sides of the road, and was a little bumpy and angled. He had driven this road once or twice before. He stated that as the road was bumpy it was hard to handle the motorcycle. He was driving 30 miles per hour and Claimant was behind him. This witness successfully made the left-hand turn on the last curve. As he did, he heard Claimant put on his brakes and squeal them. He went back and saw Claimant lying on the ground under his motorcycle.

Linda Payne testified that everyone was going to her house. She believed she may have had a couple of wine coolers at “The Alley Cat” during the hours she was there. She was following Claimant and Fancher. As she turned on to the frontage road she slowed her speed and was going 30 miles per hour. She stated she always goes slow because the road is slanted off to the sides and there is loose gravel. The road had remained the same since she moved into her home in 1983. She said there is a curve sign at the first curve and a speed limit sign, but no other signs, and the only lighting on the frontage road comes from the interstate. The interstate is about 10 feet from the frontage road. The interstate traffic goes west while they were going east on the frontage road and the headlights off the interstate traffic can cause a glare, she said. She was four to five car lengths behind Claimant but not see the accident. Ms. Payne indicated that prior to the accident Claimant was driving fine.

Christopher Billing testified as Claimant’s expert. Mr. Billing is a civil engineer, from Berns, Clancy & Associates, and had been for 11 years. He was a project engineer for that firm. Mr. Billing had substantial qualifications as an engineer. He had attended annual traffic safety institutes and had substantial experience on traffic-related cases. He examined the frontage road where Claimant drove and the accident occurred, in Champaign County, Illinois. He noted the roadway was a two-lane oil and chip surface, curb and gutter on one side, and shoulders and roadside ditches on the other side. Between the interstate and frontage road is a chainlink fence. He described the road as typical of a frontage road. He said there are three turns on this road, the accident happening on the third and last turn, near the entrance into Columbia Village Trailer Park. The Department of Transportation has the responsibility to maintain the frontage road. The third turn where the accident occurred is a sharper turn than the first two, he observed.

Mr. Billing calculated that a safe speed for the first two turns would be 30 miles per hour and for the last turn where the accident occurred, a safe speed would be 20 miles per hour. The only signs for speed however on the frontage road were for 35 miles per hour and there was no warning sign for the last turn. In reviewing the standard applications of signing which are directed by both the Federal Department of Transportation and the State Department of Transportation through their manuals on uniform traffic control devices, Mr. Billing found that on the frontage road some signs were inappropriately located and some signs were not posted at all. There was no signing indicating the last turn by the trailer park posted. He said the warning sign at the second curve was posted too close to the curve so as not to give appropriate warning to the motorist. At the last turn, he testified, an advance warning sign with a 20 m.p.h. advisory speed plate should be posted in advance of the turn, an advance warning of the approaching stop sign should be erected, and a large arrow turn sign should also be placed to mark the physical location of the turn, particularly at night. Other lighting at the last turn would also certainly help make the road safer, he said. While all of these safety measures were appropriate, none were required by the manuals. Claimant’s expert felt the frontage road in this case to be an extra-hazardous situation. However, this conclusion was not supported by any studies of the number of vehicles using the road and the number of reported accidents and he further admitted that the manuals he cited stated what sign to use in a situation and not when a sign must be used. The manuals rely on engineering judgment as to when a road condition is to be posted. The manuals are not regulatory or statutory.

While this expert did not believe the frontage road had a combination curve, the road fit the definition in the manual. He also admitted that a large arrow sign at the curve to mark the curve would not meet the 500-foot effectiveness requirement of the manual because the distance from the second curve to the third curve is less than 500 feet.

David Morgan, a transportation operations technician for the Department of Transportation, testified for the State. He was a certified engineering technician but he was not a registered engineer. He was responsible for the signing and striping of the highways in District 5 where the frontage road at issue is located. He had been in this position for 17 years and he prepared plans and work orders for all signing in the district.

Mr. Morgan testified that the frontage road has curves and not turns and that the second and third curves were a combination curve because only 200 feet separated the two curves. Under the Federal manual, it fit the definition of a short length of tangent, was therefore a combination curve, and could be signed with one curve sign as was done on the frontage road. He also testified that a stop ahead sign was not required because the stop sign at the end of the last curve was visible for 175 feet as required. All that is required at 35 m.p.h., is that a stop sign be visible for 150 feet. He further testified there was nothing in the manuals to require additional lighting or a large arrow sign or a speed limit reduction sign. In addition, he said the striping on the road was in good condition and reflectorized and was visible at night. On the frontage road on the date of the accident, the required signs were in place. The stop sign was the responsibility of the trailer park and not the State’s responsibility. Mr. Morgan believed that the signing on the frontage road was not the cause of Claimant’s accident as all of the signing and striping that existed conformed with the manuals.

Mr. Morgan also testified that while changing of signing does occur on roadways due to changed circumstances and rates of accidents, no statistics as to accident rates on frontage roads are kept except where the roads intersect a State or Federal road. The State had no accident statistics for this stretch of frontage road. He had seen this stretch of frontage road two to three times a year. It was his judgment that there is a combination curve, but that a professional engineer may very well have the opinion it was not a combination curve. He further testified he did not see the curve sign blocked by trees when he looked at the scene in October of 1985.

After the accident, an ambulance came and took Claimant to the hospital. He suffered seven broken ribs, a punctured lung, and a broken collar bone. Claimant’s Group Exhibit 5 shows the scrapes, cuts, bruises and scarring suffered by Claimant. Dr. Adolph Lo testified that he attended the medical treatment of Claimant. Surgery was required and a bronchoscopy was performed on June 11,1985. Dr. Lo further testified that the medical records indicate Claimant’s blood-alcohol level was .14. Claimant was in intensive care a week and remained in hospital care for an additional two weeks. When released, he could barely walk and suffered great pain. At the hearing on December 2, 1988, he still suffered pain whenever he would turn to his left or bend over very far.

In total, Claimant missed 18 weeks of work as an installer for a heating and air conditioning company. He was earning $7.25 per hour and worked 50 to 51 hours per week. His lost wages totalled $7,178.40. His total medical bills were $19,532.91. The damage to his motorcycle was approximately $500. Claimant also considers as part of his damages that he “had to pay for the fence that I damaged.” The Department of Transportation sent Claimant a bill for $233.88 for damages to the fence that he struck with his motorcycle.

All of the medical bills of Claimant and the repair bills on the motorcycle were paid by his insurance company. Claimant also received township aid for food and personal items which was $154 per month for about three or four months.

As this Court has stated numerous times, the State is not an insurer of all persons traveling upon its highways. (Bloom v. State (1957), 22 Ill. Ct. Cl. 582, 584; Edwards v. State (1984), 36 Ill. Ct. Cl. 10, 15.) For liability to be imposed upon the State, Claimant must prove by a preponderance of the evidence that the State breached its duty of reasonable care and the negligence flowing from the breach proximately caused the accident and Claimant’s injuries. Brochman v. State (1975), 31 Ill. Ct. Cl. 53, 56.

It is the duty of the State to exercise reasonable care in the maintenance and care of its highways in order that defective and dangerous conditions likely to injure persons lawfully on the highways shall not exist. (Webee v. State (1985), 38 Ill. Ct. Cl. 164, 167.) The exercise of reasonable care requires the State to keep its highways reasonably safe. If the highways are in a dangerously defective condition and therefore not reasonably safe and the State is on notice of such condition, the State is negligent if it does not notify or warn the public of such condition. (Moldenhauer v. State (1978), 32 Ill. Ct. Cl. 514, 522.) The State is under a duty to give warning on highways by erecting proper and adequate signs at a reasonable distance from a dangerous condition of which it has notice, and failure to erect such signs constitutes negligence. Starcher v. State (1983), 36 Ill. Ct. Cl. 144, 146.

The Court of Claims has adopted the doctrine of comparative negligence and any recovery would be reduced pursuant to the terms of such doctrine. (Peterson v. State (1983), 37 Ill. Ct. Cl. 104.) The adoption of the doctrine of comparative negligence in the State of Illinois did not extinguish the requirement of proximate cause. Failure to establish proximate cause of an injury precludes liability, negating the need to compare fault. Harris v. State (1986), 39 Ill. Ct. Cl. 176, 179.

On the facts of this case, Claimant has failed to prove a case wherein he may prevail. The question of the State’s negligence is the closest issue. The Claimant’s witness tried to show that the last curve was a dangerous curve. Claimant’s expert was impressive. However, the dangerous condition must be the cause of the accident. In the present case, Claimant was driving a motorcycle which he testified was dangerous and required balance. He proceeded to drive with a person admittedly drunk on the passenger seat behind him, holding on to him, and after he had been drinking alcoholic beverages. The passenger testified that Claimant was under the influence of alcohol and took the curve too fast. Additionally, Claimant was following another motorcyclist who drove through the curve without incident and Claimant admitted he observed that motorcycle’s brake lights come on prior to the curve yet when he approached the curve, he only let off the gas to slow and did not use his brakes. It is also very important to note that, under the manuals, the State had not violated any mandatory signing provisions. All of the signs posted were appropriate though experts could legitimately disagree as to what signs were actually required.

The final act of importance is that even if the signing was defective, the roadway was properly striped. It is uncontradicted that the roadway was striped in good condition, reflectorized, and visible at night. The pictures of the last curve show the striping. Following the striping and the motorcycle in front of him, Claimant should have driven through the curve without incident if he were not under the influence of alcohol with a person admittedly drunk holding on to his sides.

Based on the foregoing, we find that this claim must be denied due to Claimant’s failure to prove that the condition of the roadway where the accident occurred, including the signing existing at the time of the accident, was the proximate cause of the accident. It is therefore hereby ordered that this claim be, and is, hereby denied.


text:
    (No. 87-CC-3908
    Preston Ball, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 11, 1989.

    Preston Ball, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Janice L. Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause coming on to be heard on the claim filed by Preston Ball, pro se, sounding in tort for $2,000 to compensate Claimant for Respondent’s gross negligence and violation of established rules of institutional safety. A brief history and recital of the facts follows.

The incident that is the basis of the complaint occurred on February 1, 1987, at approximately 2:15 p.m. in the gymnasium of the Shawnee Correctional Center, at which time and place, the Claimant, as an inmate of the correctional center, was present when the officers in charge of the gym announced that activities were over for all inmates, and a fight ensued. As several inmates proceeded to leave and others were backing up from the exit doors, the fight ensued.

Claimant alleges that he was wrongfully accused of involvement in the fight and he was not present in the gym at the time of the fight. The correctional center increased his original incarceration by an additional 180 days which caused him deprivation of his liberty.

The evidence shows that Claimant was picked out by an eyewitness and pages 1, 2, 4, and 7 of the department report indicate that he had given a statement that he was not in the gym at the time and he also was identified as a black gang member. The Administrative Review Board found that the Claimant was involved in the fight.

The conduct and statements made by the Claimant under oath at the hearing lead us to seriously question his credibility. Further, a specific identification of the Claimant by the inscription on his T-shirt bearing his name was made. We conclude that he has not sustained his burden of proof.

Claimant has been afforded all reasonable opportunity to refute or controvert the charge against him as a participant in the incident, and to present his own qualified witnesses to support his contention that he was not present in the gym at the time involved, and he has failed to do so. Claimant further alleges that he was not afforded an opportunity to confront and examine his accusers. This is contrary to the facts since, as previously indicated, he has been afforded ample opportunity to controvert said identification by producing his own qualified witnesses.

Further, there is nothing on the record of any evidence presented by Claimant as to the basis of his claim of $2,000 and how he computed same.

It is therefore ordered, adjudged and decreed that any award to Claimant is denied.


text:
    (No. 88-CC-0307

      In re Application of Warren H. Yoho and Maridell A. Yoho

      Opinion filed November 28, 1989.

    Harlan Heller, for Claimants.
    Neil F. Hartigan, Attorney General (Gregory Thomas Patrick Condon, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This is a claim for benefits filed pursuant to the Illinois National Guardsman’s and Naval Militiaman’s Compensation Act (111. Rev. Stat., ch. 129, par. 401 et seq.) (hereinafter referred to as the Act), due to the death of Specialist Fourth Class (SP4) Larry D. Yoho. In an order dated December 28, 1987, this Court ordered that the cause be tried before a Commissioner to determine whether the decedent was killed in the line of duty as defined in section 2(b) of the Act. (111. Rev. Stat., ch. 129, par. 402(b).) A hearing was held before Commissioner Robert G. Frederick. The Claimant has filed a brief, but the Respondent indicated it would not be filing a brief. Commissioner Frederick has duly filed his report.

On June 1,1987, SP4 Larry D. Yoho arrived at Fort McCoy, Wisconsin, for his annual two-week summer camp training with his Illinois National Guard unit. On June 9,1987, he fell from a second floor barrack balcony at Fort McCoy and on June 27, 1987, he died from injuries sustained in the fall.

An investigation by the Illinois National Guard followed the untimely death of SP4 Yoho. Major Edwin T. Lucas, of the Rlinois National Guard, was appointed president of the board investigating SP4 Yoho’s death.

The investigation and testimony at trial indicate that SP4 Yoho had been warned to stay off the balcony and to stay away from the ladder which led up to the balcony. Sergeant Whiteman had given this warning to two soldiers on June 8, 1987. One of those soldiers, PV2 Sowders, indicated that he and Yoho had been so warned. In fact, this type of warning had been given each year since 1971. This warning had occurred at the beginning of the two-week summer camp. However, Safety Officer Kelly’s report indicates no warning was given at the initial briefing in June of 1987.

After arriving at Fort McCoy, the soldiers went out in the field. Upon completion of the training they came back to the containment area where the barracks are located. At the time of his death SP4 Yoho was on duty. He could not have left the containment area. Just prior to his death there was a company party. The troops have a party where food and alcoholic beverages are served. According to Major Lucas this was a traditional event and not against the rules. However, the reports indicate that the person who bought the beer was reprimanded. SP4 Yoho attended this party, had some drinks, went out on the balcony at about 11:15 p.m. to smoke a cigarette, and fell from the balcony. After being taken to a hospital, his blood-alcohol level as shown by a blood test was .225. The Respondent introduced no testimony as to what the blood-alcohol level would have been at the time of the accident. In fact, the Respondent introduced no competent evidence as to the significance of a reading of .225.

The balcony from which SP4 Yoho fell was not lighted at the time of the incident and the investigation indicated that the safety arm on the railing may have been in an open position. The investigation also found that while SP4 Yoho may have been negligent, which may have contributed to his fall, there was no evidence of intentional or willful misconduct on his part. This was only Yoho’s second night in the barracks. He went out to the balcony and fell almost immediately.

Staff Sergeant Chambers saw SP4 Yoho at the party, but went to bed by 10:00 p.m. Yoho’s eyes were glassy when seen by Sgt. Chambers, but he did not see any loss of coordination. SFC Miezo saw Yoho up until 9:15 p.m. At that time, Yoho exhibited no signs of intoxication. PV2 Sowders saw Yoho drink one or two beers at about 6:30 p.m. and then did not see him again for a couple of hours. Later that evening Sowders had several drinks with Yoho, but Yoho did not appear intoxicated.

Sgt. Townsend stated that Yoho was with him at the gym between 8:30 p.m. and 9:30 p.m. on June 9, 1987. Yoho did not drink beer during this time and did not appear intoxicated. PFC Patterson saw Yoho talking just prior to his death and saw him walk out on the balcony. He did not feel Yoho was drunk. SP4 Patton also saw Yoho before the fall and did not feel he was drunk. The company party consisted of a 16-gallon keg of beer which was tapped about 6:00 p.m. Most of those who did not think Yoho was drunk had been drinking during the evening.

The reports, however, do indicate that a blood-alcohol concentration was taken upon Yoho’s admission to the hospital and registered a .225 reading. It is important to note that SP4 Yoho was not admitted to the hospital until 1:37 a.m. on June 10, 1987, some 2M hours after the fall. Captain Peters found that the cause of the accident was poor judgment and an extremely old and dangerous building condition. He discounted the alcohol based on the reports from the others at the party.

SP4 Yoho was initially taken to the Post-Troop Medical Clinic and then transferred by ambulance to St. Francis Hospital at LaCrosse, Wisconsin, where he was admitted at 1:37 a.m. on June 10, 1987. The diagnosis was fracture dislocation C6 and 7 with quadriplegia C-7. He died on June 27, 1987, of acute respiratory distress syndrome due to the fracture dislocation and quadriplegia.

The full title of the Act is “An Act in relation to the payment of compensation on behalf of members of the Illinois National Guard killed while on duty and to make appropriations in connection therewith.”

Section 2(b) of the Act states:

(b) “Killed in the line of duty” means losing one’s life as a result of injury received while on duty as an Illinois national guardsman, if the death occurs within one year from the date the injury was received and if that injury arose from violence or any other accidental cause except that the benefits of this Act shall not be provided in the event a guardsman is killed while on active military service pursuant to an order of the President of the United States. The term excludes death resulting from the willful misconduct or intoxication of the guardsman; however, the burden of proof of such willful misconduct or intoxication of the guardsman is on the Attorney General.”

The cases in the Court of Claims regarding the claims brought pursuant to the Act due to the death of National Guardsmen have been few and far between. There have been many cases in the Court of Claims brought pursuant to a similar statute, the short title of which is the “Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, Firemen and State Employees Compenation Act.” (111. Rev. Stat. ch. 48, par. 281 etseq.) (hereinafter referred to as L.E.O.F.C.A.) However, comparisons are not helpful because it appears the legislature has determined a different title for that act and a different definition for the term “killed in the line of duty.”

The full title of L.E.O.F.C.A. is “An Act in relation to the payment of compensation on behalf of law enforcement officers, civil defense workers, civil air patrol members, paramedics and firemen killed in the line of duty.”

Section 2(e) of L.E.O.F.C.A. states:

(e) “killed in the line of duty” means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer, civil defense worker, civil air patrol member, paramedic or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause. In the case of a State employee, “killed in the line of duty” means losing one’s life as a result of injury received in the active performance of one’s duties as a State employee, if the death occurs within one year from the date the injury was received and if that injury arose from a willful act of violence by another State employee committed during such other employee’s course of employment and after January 1,1988. The term excludes death resulting from the willful misconduct or intoxication of the officer, civil defense worker, civil air patrol member, paramedic, fireman or State employee. However, the burden of proof of such willful misconduct or intoxication of the officer, civil defense worker, civil air patrol member, paramedic, fireman or State employee is on the Attorney General. Subject to the conditions set forth in subsection (a) with respect to inclusion under this Act of Department of Corrections employees described in that subsection, for the purposes of this Act, instances in which a law enforcement officer receives an injury in the active performance of duties as a law enforcement officer include but are not limited to instances when:
(1) the injury is received as a result of a willful act of violence committed other than by the officer and a relationship exists between the commission of such act and the officer’s performance of his duties as a law enforcement officer, whether or not the injury is received while the officer is on duty as a law enforcement officer;
(2) the injury is received by the officer while the officer is attempting to prevent the commission of a criminal act by another or attempting to apprehend an individual the officer suspects has committed a crime, whether or not the injury is received while the officer is on duty as a law enforcement officer;
(3) the injury is received by the officer while the officer is travelling to or from his employment as a law enforcement officer or during any meal break, or other break which takes place during the period in which the officer is on duty as a law enforcement officer.”

It is apparent that an Illinois National Guardsman need only be on duty to receive benefits if, “the death occurs within one year of the injury and if the injury arose from violence or any other accidental cause * * while a law enforcement officer must be in the “active performance of duties as a law enforcement officer * " V’ The reasoning behind this important distinction by the legislature may well be based on this Court’s determination that such benefits to beneficiaries of National Guardsmen are required to render more attractive such military service to potential members of the National Guard, and to afford protection to members thereof in activities which concededly are often extremely dangerous. (See Ward v. State (1962), 24 Ill. Ct. Cl. 229.) The statute serves as a “stimulant to voluntary military service, which service is of utmost importance to the safety, welfare and protection of the Nation and State.” See Ward.

There is no question at all that SP4 Yoho was on duty on an annual two-week training exercise at Fort McCoy in the containment area at the time of the injury which caused his death. He was not on active military service pursuant to an order of the President of the United States, which would prevent an award from being granted. (See section 2(b) of the Act.) He was assigned to the company barracks and could not leave. As the Act requires only that he be on duty, he has met that requirement.

The more troubling aspect of this case is whether the exclusions of the statute apply under the circumstances of the case. The statute states that the term “ ‘killed in the line of duty’ * * * excludes death resulting from the willful misconduct or intoxication of the guardsman; however, the burden of proof of such willful misconduct or intoxication of the guardsman is on the Attorney General.”

Before the decedent walked out on an unlit, dangerous balcony he attended a company party and drank at least several beers over the course of the evening. All those who saw the decedent at different times prior to the fall state he did not appear intoxicated. Some of these soldiers were also drinking. Two hours and 15 minutes after the fall the decedent, upon admission to the hospital, had a blood-alcohol level of .225.

As previously stated, there was no proof presented by the Respondent as to a blood-alcohol level at the time of the fall and the Respondent did not present any competent evidence as to the meaning of the .225 reading later at the hospital. It is not for this Court to guess at the significance of a .225 reading. It was incumbent on the Respondent to make an evidentiary record of the significance of a .225 reading, which is not an appropriate area for judicial notice. The Respondent has not met its burden of proof that the decedent’s death was caused by his own willful misconduct or intoxication. It is more likely than not that the unsafe building and lighting caused the fall.

Based on the foregoing, we find that an award should be granted in this claim. It appears from the record that SP4 Yoho did not have a beneficiary designated to receive an award pursuant to the Act and was not survived by a spouse or children. It such a case, section 3(c) of the Act provides that the surviving parents are entitled to receive an award in equal parts. It is therefore hereby ordered that an award totalling $20,000 is granted in this claim. Said award is to be divided equally between the Claimant, Warren H. Yoho, the decedent’s surviving father, and Maridell A. Yoho, the decedent’s surviving mother.