text:
    (No. 77-CC-1480
    Mitchell Ware, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 19, 1985.

    Charles Locker, for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The case at bar presents for consideration several complex and important issues, all of which are matters of first impression before this Court. It is fortunate, therefore, that the facts of the controversy are essentially undisputed, thus enabling the Court to focus on the law applicable to these novel matters.

The Claimant, Mitchell Ware, filed his complaint in August of 1977, and following some threshold motions brought by the Respondent before the full Court, the claim was assigned to a commissioner for a full hearing. Over 22 separate hearings, arguments and motions were held over an extended period of time, eight witnesses testified extensively, 33 exhibits were received into evidence, and divers motions were filed as were many hundred pages of briefs in support thereof and in opposition thereto.

From this lengthy record, the following material facts emerge as either uncontroverted or proved by the preponderance of the evidence:

Findings of Fact

1. The Claimant, Mitchell Ware, an attorney licensed in the State of Illinois, after serving many years in various law enforcement capacities as, inter alia, deputy superintendent of Chicago police, chief of Illinois Narcotics Bureau, etc., was, in August of 1969, appointed by then Governor Richard Ogilvie to the post of chief of the Illinois Bureau of Investigation (I.B.I.). The principal function of that agency was to investigate and bring to justice matters involving narcotics, organized crime and specially assigned “difficult” or “sensitive” cases.

2. The I.B.I. consisted of, and Claimant supervised, over 100 officers. These officers were initially trained at the policy academy in Springfield and thereafter received ongoing training and continuing education from various State and Federal agencies.

3. The I.B.I. was assigned, on a permanent basis and at all material times herein, an Assistant Attorney General, appointed by then Attorney General William J. Scott.

4. Prior to and subsequent to 1969 the I.B.I. owned and used, in the normal course of its activities, diverse electronic surveillance devices and equipment, including such items as “Cal Sets” (transmitters and recorders), “Schmitt Devices” and Bell & Howell Recorders. In addition, the agency from time to time borrowed similar surveillance equipment from various State, county, and Federal law enforcement offices.

5. In late 1969 at Zion, Illinois, Claimant and other officers of the I.B.I. attended a law enforcement seminar sponsored by Illinois Attorney General Scott. Among others participating in this activity were Charles Rogovin (U.S. Department of Justice), G. Blakely (senate judicial committee), and A. Rody (assistant customs inspector). Materials presented included voices of organized crime figures on tapes and obtained from surveillance devices, training in the use and application of electronic equipment, and training in the use of various surveillance techniques, including the use of “cheese boxes,” parallel microphones, mouthpiece inserts, “leeches,” wall transmitters, “cube mikes,” recorder brief cases, parabolic microphones, pair registers, etc. Attendees were trained in the use, purchase, detection, and installation of all of this equipment.

6. In 1970 a meeting of the Rlinois Law Enforcement division’s task force on organized crime took place. In addition to the Claimant herein, present were Herbert Brown from Governor Ogilvie’s staff, Marlin Johnson, head of the Chicago, Illinois, office of the Federal Bureau of Investigation, Joel Flaum, now U.S. district court judge, then first assistant U.S. attorney, and Edward Hanrahan, then State’s Attorney of Cook County, Illinois. At said meeting the Claimant requested a Federal grant to purchase for his agency the electronic surveillance equipment recommended to him at the 1969 Zion seminar.

7. Thereafter, the Claimant received a grant from the U.S. Justice Department to purchase said equipment and did, in fact, purchase for his agency room transmitters, Schmitt devices, body transmitters, and telephonic surveillance devices. All purchase orders were processed by the State of Illinois in the normal course.

8. Training of I.B.I. agents included proper procedures in the use of electronic surveillance; to wit, prior to use, permission was asked and had to be obtained from the State’s Attorney of the county in which surveillance was to occur. Claimant Mitchell Ware had no authority to give such permission nor did he ever do so.

9. In the spring of 1970, then Governor Richard O gil vie personally directed the Claimant, Ware, to investigate the attempted murder by bombing of State Representative Barr. The investigation of this crime, thought to be connected with organized crime and the Jayne murder, was accomplished in concert among the I.B.I., State’s Attorneys of Cook County and Will County, the F.B.I., the Will County sheriff’s office and the Joliet mayor’s office. Various electronic surveillance techniques were employed. All participants in the investigation were made aware of all activities, and investigation status reports were made directly to Governor Ogilvie. Claimant Ware, however, did not personally participate in any portion of the investigation, but did report results thereof to the Governor on at least six occaisions.

10. In 1976, the F.B.I. informed the Claimant that the purchase by him of surveillance equipment and its use by his agency were being investigated for possibly being in violation of Federal criminal laws. The Claimant duly informed then Attorney General Scott and Assistant Attorney General James Zagel, who denied any duty to defend or represent him in connection with the investigation, and thereupon the Claimant engaged private counsel (Eugene Pincham and Sam Adam). The Claimant was indicted by a Federal grand jury, as was his successor in office, Richard Glicke. The gravamen of the indictment was for the illegal purchase and use of electronic surveillance equipment and conspiracy in connection therewith.

11. On several occasions, both before the indictment and thereafter, orally and in writing, the Claimant made claim upon the Attorney General for representation and/or reimbursement for legal fees expended. Each such request was denied.

12. After a three-week trial before Federal Judge George Leighton, a directed verdict was ordered. The court commented to the jury that at all relevant times the Claimant was simply performing his assigned duties of office.

13. Claimant’s attorneys, Pincham and Adam, in addition to attending and participating in the three-week trial, attended at least 90 meetings with the Claimant and witnesses. Substantial time was also expended in other discovery, meetings with co-counsel Thom Foran, etc.

14. The Claimant and his counsel had agreed upon legal fees of $75,000.00. In the opinion of the Court, this amount was fair and reasonable, taking into account the complexity of the matters, expertise of counsel, time expended, and custom and comparable fees charged and paid in the community for similar services under similar circumstances.

15. The Attorney General had never authorized payment or reimbursement for attorney fees of State officers or employees incurred in the defense of criminal cases as a matter of policy.

16. At no time in the case did the Attorney General make any investigation whatever to determine the nature of the indictment, whether it was the result of performance of an illegal duty, etc.

17. At the time in issue (1976), the Attorney General had a budget of $924,900.00 available for payment of legal fees to part-time or special assistant attorneys general.

Conclusions of Law

Section 4 of “An Act in regard to attorneys general” (Ill. Rev. Stat., ch. 14, par. 4) defines the Attorney. General’s duties, inter alia, as follows:

“Third — To defend all actions and proceedings against any state officer, in his official capacity in any of the courts of this state or the United States.”

Paragraph 6 of the same chapter, in discussing certain situations where the Attorney General is unable to attend a proceeding, states:

“Whenever the Attorney General . . . is . . . unable to attend . . . any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend

It seems clear to us that the quoted statute imposes an absolute duty, in certain instances, upon the Attorney General to defend or pay for the defense of public officials in criminal as well as civil cases. This statutory obligation is conditioned upon the thrust of the action (or indictment) being premised upon an act resulting from performance of an official act or in furtherance of an official duty. Paragraph 6 specifically contemplates this protection being extended to criminal matters.

In the instant case it is abundantly clear that Claimant’s indictment was based entirely upon his alleged law violations in and about the performance of his official duty; to wit, the purchase and use of electronic surveillance equipment. Thus, it was the statutory duty of the Attorney General to either provide Claimant with a defense or to pay for such a defense by appointing a “special assistant” for such purpose.

The Respondent basically advanced four arguments:

First, that in no case is the Attorney General ever obliged to tender a defense to a public official in a criminal case. Although this has heretofore been the policy, we feel that it is contrary to the express mandate of the legislature.

Second, that in any event, Claimant was not indicted for performance of duty. A fair reading of the indictment and interpretation thereof belies this defense. At no time was the Claimant accused of any act for his personal benefit or for that of any other individual, nor for any form of bribery, corruption, misfeasance or nonfeasance.

Third, that even if all other defenses fail, the Attorney General may not be held accountable for any error committed with regard to an act of discretion for which he has immunity. The true issue, however, is not whether the Attorney General erred in his discretionary conclusion as to whether or not a defense was owed but rather whether or not he exercised or attempted to exercise any discretion at all.

Respondent explains that although it might appear that discretion plays no part in a policy that applies to all criminal actions, regardless of the facts involved, the discretion is in the creation of the policy rather than its actual administration. We disagree. We find that the facts prove beyond any reasonable doubt that there was no exercise of discretion at all. At no time were the facts weighed or considered and a conclusion reached that no defense should or could be tendered (which would have been an exercise in discretion). Rather, it is clear that the Attorney General decided without any consideration of the actual facts and arbitrarily that no defense was due. This is not a discretionary error.

Fourth, that the doctrine of Fergus v. Russell (1915), 270 Ill. 304, 110 N.E.2d 130, would somehow be violated by an award in this case. Briefly stated, that case held that the Attorney General has the exclusive authority to represent a public official or interest of the State in litigation. Clearly the Fergus rule has no application to a case such as the one at bar where the Attorney General was asked for representation and refused before any obligation to outside counsel was incurred. This distinction is equally applicable to Dunlop v. State (1917), 3 Ill. Ct. Cl. 107, and Fusek v. State (1975), 31 Ill. Ct. Cl. 170.

For the above reasons, it is hereby ordered that the Claimant, Mitchell Ware, be and hereby is awarded the sum of $75,000.00 in full and final satisfaction of this claim.


source: Caselaw Access Project

author: POCH, J.

license: Public Domain

text:
    (No. 78-CC-1656
    J.J. Altman & Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 2, 1984.

    Marvin W. Goldenhersh, for Claimant.
    Neil F. Hartigan, Attorney General (William: E. Webber and Sue Mueller, Assistant Attorneys General, of counsel), for Respondent.
   POCH, J.

The Claimant, J.J. Altman & Company, has brought this claim seeking $28,241.40. The claim is for additional services performed by the Claimant as construction manager for the repair of damage to a State office building in East St. Louis being constructed under contract with the Capital Development Board, an agency of the Respondent.

The contract between the Claimant and the Capital Development Board called for the payment of additional sums to the Claimant if additional work was needed on the construction project. The Claimant was acting as the construction manager for the project, supervising subcontractors, each of which had a separate contract with the Capital Development Board.

The additional work performed by the Claimant was caused by water damage sustained when a valve broke causing flooding which caused extensive damage. The repair of the building was supervised by the Claimant. There is no dispute that the work performed by Claimant was authorized. The Capital Development Board agreed that $28,241.40 represented the value of the additional services performed by Claimant.

The Capital Development Board and the Claimant were named as insureds in a builders risk insurance policy. The insurance company paid for certain repair work but refused to pay for the cost of Claimant’s services. Neither Claimant or Respondent filed suit against the insurance company for payment of the claim.

The Respondent contends that the Claimant failed to exhaust its available remedies against the insurance carrier and thus has no standing to pursue its claims in this Court. See Ill. Rev. Stat. 1979, ch. 37, par. 439.24— 5.

The testimony of the Claimant’s witness was not refuted by the Respondent. It is, therefore, uncontradicted that Claimant relied on the Capital Development Board to pursue the claims with the insurance carrier. Furthermore the Capital Development Board did acknowledge the validity of the claim in this case. The Claimant did not suffer any loss due to the water damage. The Respondent was the owner of the premises and had an insurable interest in the building. The Claimant was not responsible for the damages caused by an independent subcontractor of the Respondent, under its own contract with the Capital Development Board.

If the Claimant has no insurable interest in the property loss there is no legal duty to file suit against the insurance carrier. In this case the Claimant was only the construction manager and had nothing to gain from the continued existence of the building. In Lieberman v. Hartford Fire Insurance Co. (1972), 6 Ill. App. 3d 948, 287 N.E.2d 38, the Court, defined what constitutes an insurable interest. It is necessary that the insured profit or gain some advantage by the continued existence of the property, and that if the property is damaged or destroyed the insured then suffer a loss as a result thereof. Therefore to have an insurable interest the insured must have suffered a loss. See also Reznick v. Home Insurance Co. (1977), 45 Ill. App. 3d 1058, 360 N.E.2d 461.

Merely because the Claimant was a named insured does not cause the Claimant to have an insurable interest in the property. The named insured must sustain a loss as a result of the damage in order to have an insurable interest.

In this case the J.J. Altman Co. was a named insured but had no insurable interest in the property. It was not the owner of the property. It would not have benefited by the continued existence of the building and it did not suffer any loss by the flooding of the building.

The Capital Development Board had the insurable interest and suffered the loss due to the flooding of its office building. The Respondent had the opportunity and the duty to pursue its insurable interest. Its failure to do so should not cause the Claimant to forfeit its claim for services rendered pursuant to its contract.

Since the Claimant had no insurable interest in the property the Respondent’s allegation that the Claimant failed to exhaust any claimed remedies against the insurance carrier is without merit.

The Respondent requested that the Claimant supervise the repair work. The contract between the Claimant and the Capital Development Board provided for payment for such services. The Respondent does not dispute that such services were performed.

The Claimant is entitled to recovery of the sum of $28,241.40 for services performed pursuant to the contract with the Respondent.

It is hereby ordered that the Claimant, J. J. Altman & Company, be awarded the sum of twenty eight thousand, two hundred forty one dollars and 40 cents ($28,241.40).


author: Holderman, J.

text:
    (No. 79-CC-0721
    Pora Construction Company, an Illinois Corporation, Claimant, v. Capital Development Board, a body politic and corporate, Respondent

      Opinion filed November 9, 1984.

    O’Brien & O’Rourke and Peter Petrakis, for Claimant.
    Neil F. Hartigan, Attorney General (James A. Koch, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

The final hearing on the above-entitled claim was held on June 13, 1983, in the Court of Claims hearing room, 188 W. Randolph Street, Chicago, Illinois.

From the evidence introduced at the hearings it appears that in February of 1975, Claimant, Pora Construction Company, entered into a contract with Respondent, Capital Development Board, to act as general contractor in the construction of Phase II of the Morraine Valley Community College (MVCC). This was an addition to an existing college facility, which had been Phase I. The contract price was initially $5,156,626.00.

The addition to be constructed by Pora consisted of two two-story structures, connected by an enclosed bridge, as well as adjacent parking areas, landscaped areas, walkways and the like, all totalling approximately 199,000 square feet. The buildings were to include classrooms, laboratories, study units, computer areas and a library.

For construction purposes, the project was designated by area and by various unit numbers. The building which was to connect to the two existing MVCC facilities and which therefore would be put to use first, was designated Units 3 and 5. The other building was labelled Units 1 and 2. The enclosed bridge between the two buildings, which was to connect with Units 3 and 2, was to be Unit 4. Unit 4 was to span a scenic drive running north and south through the campus, which had theretofore been a public highway known as 88th Avenue.

Caudill Rowlett Scott (CRS), a Houston, Texas, firm, was appointed by CDB to act as its architect/engineer (a/e) for the MVCC project. According to article 2 of the general conditions of the contract documents, CRS, as a/e, was to provide general administration of Pora’s contract, to interpret the contract, to judge Pora’s performance, to accept or reject work, and to act as the owner’s representative with respect to the project. Accordingly, as the owner’s representative, CRS prepared and published the plans and specifications for the project. The CDB, as owner, had authority to stop the work, or any portion thereof, and was responsible for promptly furnishing all surveys, easements, information and instructions, pursuant to article 3 of the general conditions.

Pora, as required by article 4 of the general conditions, submitted an estimated progress schedule of the entire MVCC project for the a/e’s approval, indicating dates for starting and completion of all stages of construction. According to that schedule, based on the plans and specifications as originally provided by the owner, the project was to be constructed between March 17, 1975, and June 19, 1976, within the 420 days’ completion time specified in the contract. A subsequent revision of the schedule extended the completion date to October 1, 1976. Claimant contends that various owner-caused delays caused a job overrun of Pora’s work for approximately eight months from this extended completion date.

Pora’s plan of construction anticipated a certain orderly and logical sequence to the construction of the Phase II facility. As a result of meeting with representatives of the college, it was decided that the building designated Units 3 and 5 would be completed and ready for occupancy first, as it was the building adjacent to the existing facility. Work would then proceed in steps progressing away from the existing college, with the bridge next and finally the other building (Units 1 and 2). The specific construction sequence, then, was to be 5-3-4-2-1.

As a result of various delays occasioned by the alleged action, omissions and changes by the CDB, the final completion of Pora’s work under the contract, as amended from time to time, occurred approximately 242 days after the completion date, as extended. Those alleged owner-caused delays were the focal point of the evidence adduced in this case. It is claimed, that as a result of the alleged owner-caused delays, Pora’s work schedule was altered and impeded to such an extent that Pora incurred $379,045.00 of compensable damage flowing directly from the impact of the delays and obstructions caused by the CDB.

The complaint in this case specifies the manner in which several separate actions or omissions of CDB combined to cause delay and unwarranted expense to Pora and alleges actionable breaches of express or implied covenants of the contract between Pora and CDB. Specifically, the four contractural breaches, and therefore the four legal issues involved herein, were as follows:

1. A breach of the implied warranty of the accuracy and sufficiency of the plans and specifications;

2. a breach of the implied covenant to facilitate the progress of the work;

3. a breach of the implied warranty of access to the job site; and

4. a breach of certain express provisions of the general conditions of the contract.

In the present situation the contract documents did not set a fixed time for completion but required the contract to be completed in 420 days. The length of the contract was established by the Claimant. The contract reserved the right to CDB to stop work, change specifications and reject the work of the contractor. (Sections 12.1 and 2.2.12 of the general conditions.) The contract documents provided that if the Respondent exercised its rights previously stated or if delay in the progress of the work was caused by the Respondent, then the contract would be modified by extending the completion time of the contract and/or adjusting the contract price for any changes or delays. This project also ran into unexpected bad weather, unfavorable soil conditions and changes in the specifications.

The Claimant in the present case did modify the contract by using the change order provisions of the contract. Claimant is now requesting additional compensation for costs due to the delay and damages caused by the decrease in labor effectiveness because the work was done in winter months.

Claimant is claiming reimbursement for additional costs it claims it sustained as a result of lack of accessibility to the site; problems concerning the removing of certain telephone and Commonwealth Edison lines and poles; delays to work as a result of pile driving difficulties; delay due to switchgear revision and elevator installation; and also delays due to handicap ramp installations and the revision of the expansion joints to be used in the concrete.

When Claimant began driving piles it was determined that more soil tests were needed. This caused some delay. The job site was intersected by a heavily travelled highway known as 88th Avenue, which road was not vacated prior to the start of construction. This caused some inconvenience to the work progress on the project. The same applies to the delay in the removal of the telephone lines and poles and the electric lines and poles which were situated on the job site.

The switchgear to be used in the building had to be reordered. This caused some delay. A delay was also occasioned by a change in the plans calling for the installation of an elevator and handicap ramps. Intermingled with the delays and contributing thereto was extremely bad weather which caused a delay of 56 days out of the first three months. Certain other delays were also encountered, some attributable to the Respondent, and some to the Claimant. As a result of the delays the project was pushed into the winter of 1976-77. The winter weather caused a slowdown of the work. It further necessitated installing temporary heat and the enclosing of the buildings so that the inside work, including the electrical, plumbing, heating and carpentry work, could be done.

Claimant seeks to recover for what it calls its direct field costs. It also seeks to recover for its alleged indirect cost consisting of home office overhead covering the overrun of 242 days which it claims amounts to the sum of $72,827.00. For the direct costs and indirect costs, Claimant seeks a total of $369,045.00.

It is next to impossible to directly pinpoint the delays and the responsibility therefor and to assess the items of damage directed thereto as claimed by the Claimant. There is further a contention by Respondent that Claimant should have been compensated only through the submission of change orders and the approval thereof by the architect/engineer, or in failure thereof by arbitration in accordance with the terms of the contract.

The Respondent’s contention is that the delays caused by changes in specifications and other events resulting in delays in the progress of the work were not breaches of the contract which provided that “the owner without invalidating the contract may order changes in the work. . . .” It further argues that any delays were also covered by the contract provisions to the effect that through change orders the contract price can be adjusted and an extension in time to perform can be given if Claimant is delayed and suffers a loss because of it. Respondent states that while Claimant has been paid the contract price adjusted by many change orders it seeks additional compensation because of alleged delay damage not recovered through the change orders.

On this point Claimant’s position is that its claim for delay damages differs from the change order situation, which procedure, it says, is to compensate for work which was not originally specified and does not include the “impact of a change”. Impact damages are unascertainable at the time of a change order and, Claimant argues, the change order procedure cannot deal with delay claims. It agrees that there is a situation when delay claims cannot exist and that is when the contract includes specifically a “no damage for delays” clause which wasn’t the case here.

This issue of the case was very extensively and ably briefed and argued by both sides. Resolution of this issue is not without difficulty. The Respondent cites Gleason v. State (1902), 1 Ill. Ct. Cl. 233, where it was held that Claimant was not entitled to delay damages because it should have proceeded under the contract to have the contract extended and adjusted for the delay. Further, Respondent relies on United States v. Rice (1942), 317 U.S. 61, where the court held delays in the project could not be considered a breach of contract since the contract provided the government had power to alter, suspend and change the contract.

In answer, Claimant contends that Gleason is no longer the law of this State in light of the evolution of the theory of delay damages. In answer to Rice, Claimant states it deals with interpretation of Federal procurement contracts, that it has been criticized even in. Federal courts, and that it is not the law of this State.

This Court is of the opinion that while change orders do take into account delay, costs, that notwithstanding, there can be and were delays occasioned by Respondent which could not and were not included in the change order procedure. The real difficulty however is assigning culpability for each delay when part of it could be attributed to the weather, part of it could be attributed to Respondent, part attributed to Claimant and part of it included in the change orders. We do not believe it possible to separate each delay into one specific category solely in every instance nor to mathematically, with any accuracy, dilute the alleged delay damages by such delay factors as may have been included in specific change orders for which Claimant has been paid.

Respondent contends that if damages were its responsibility at all, they should be limited to 49% of amount claimed, as the balance would be attributable to the weather or to Claimant’s own fault. There is some merit in Respondent’s contention. Certainly the weather was a contributing factor and certainly some portion of the delays were covered by the change orders.

The thrust of Claimant’s claim is to a great extent based on the damages caused by the interruption of its planned sequential performance brought about by the various delays. Respondent argues that all this could have and should have been handled by resorting to change orders. It seems to us, however, that much of the impact damages could not reasonably be anticipated at the time of the change orders. In addition, the change orders didn’t cover every delay.

The overlapping of the various delays both in cause and in damages makes it impossible to isolate the exact amount any particular delay caused. The whole has to be considered in preference to an itemization, while the latter must be given such consideration as is ascertainable.

Respondent argues that if damages are awarded they should not include $96,000 in labor costs as they were included in the change orders. There is some merit in this contention as we do not find it unreasonable to expect Claimant to include a labor factor in his change orders at the time they were agreed upon.

A synopsis of the delays shows their magnitude and the impact flowing therefrom.

It appears that 88th Avenue intersected the site of the MVCC project, dividing Units 3 and 5 from Units 1 and 2 and running beneath the bridge of Unit 4. The plans submitted to Claimant indicated that this public highway was to be closed. When Claimant moved in March 10, 1975, the street was still being used and this presented a major problem. The road was not closed until July 3, 1975. During the interim the crew had to work across traffic on 88th Avenue. Also, Claimant had to stop work until it got a permit from Cook County.

Further, there were utility poles present, some on each side of the highway. This caused a great deal of burdensome inconvenience in pile driving and in moving equipment across the road with utility wires present. The lines were not removed until June 13,1975, and some not until July 1975. The presence of the poles caused Claimant to undertake drastic changes in procedure from what it had contemplated.

The specifications required piles to reach a 25-ton bearing capacity, but due to the nature of the soil, the pile driving had to be stopped until test borings could be made to determine the proper length to drive the piles. This delay caused the other work to be stopped also, as the pile driving was a necessary preliminary to other construction.

Further, the specifications called for a bearing-plate type of expansion joint made from ruberoid or equal. Ruberoid was not available and a substitute was obtained and used in 16 expansion joints. However, the work was again stopped by owner until the expansion joints were redesigned for prospective use. This error apparently was the fault of the architect in its original set of specifications. Again this caused an interruption in Claimant’s continuity of progress and a delay in concrete pouring and other work. The orderly progress of performance being interrupted is the basis of Claimant’s claim.

In addition, the switchgear specified caused a problem and was redesigned. Originally it was scheduled to be installed prior to December 1978. This apparently was due to an error in the specifications furnished. The delay in the installation caused an interruption in pouring slabs. It was not until November 1976 that the newly designed switchgear was installed and much of the other construction was dependent on this item. The delay was such a severe departure from the original anticipated installation that Claimant suffered damages not possible to include in any change order.

Originally there were no handicap ramps specified at the entrances, but a change was made to require such ramps at six entrances. Claimant furnished a proposal on January 14,1976, for the ramps, but it was not until July 12, 1976, that the details of the ramps were made final. Again the sequential progress of the work was drastically interrupted.

The plans originally called for a pedestrian ramp to the second floor of Unit 3, but no elevator was specified. The contractor was put on hold until the matter could be resolved. The hold direction was March 1, 1976, and applied to “areas affected by the proposed changes.” The “areas affected” were not defined, however, leaving the matter suspended in a state of confusion. On April 29,1976, Claimant was provided with specifications for a hydraulic elevator. It was not until August 18, 1976, that Claimant received a change order for the elevator— 5 1/2 months after the hold order. The delay in respect to the elevator compelled concrete pouring to proceed in the winter of 1976. The six-month delay caused a severe delay in Claimant’s orderly progress of performance. Claimant contends this, along with the other delays, was a violation of owner’s duty under the contract to facilitate the progress of contractor’s work.

Further delay was encountered in contracting for and the laying of carpet. It was planned to start in March 1976, but didn’t start until January 1977. Until the carpet was in, other trades could not complete their work — the laboratory furniture work, certain school equipment, access flooring, electrical units and plumbing, all were delayed.

All in all, the magnitude of the delays attributable to Respondent’s dilatory practices warrants some recovery by the Claimant. No change order could encompass the impact damages caused by the extensive delays.

Respondent strongly urges that article 8, section 8.3 of the contract’s general conditions adequately covers the procedure for time delays.

Section 8.3.1 provides:

“If the contractor is delayed at anytime in the progress of the work by any act or neglect of the owner or the architect, of by any employee of either, or by any separate contractor employed by the owner, or by changes ordered in the work, or by labor disputes, fire, unusual delay in transportation, unavoidable casualties or any cause beyond the contractor’s control, or by delay authorized by the owner pending arbitration, or by any cause which the architect determines may justify the delay, then the contract time shall be extended by change order for such reasonable time as the architect may determine.”

Article 12 of the general conditions provides for change order procedure, wherein it states that the owner, without invalidating the contract, may order changes in the work and the contract sum shall be adjusted accordingly, and if the adjustment can’t be agreed upon it should be determined by the architect. (12.2.1.)

Respondent contends these contract provisions were agreed upon and, according to their terms, any claim not made would be waived.

However, article 7, section 7.6.1 provides that the duties and obligations imposed by the contract documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law.

Therefore, Claimant would be barred were he suing under the contract, but his theory here is that the owner-caused delays amounted to a breach of contract. in interfering with his orderly performance of work.

As stated earlier, Respondent cites the 1902 case of Gleason v. State, supra. In that case Claimant’s contract had been terminated by the State under applicable provisions of the contract due to failure of Claimant to perform. Thereafter, the State took possession of the buildings and completed the work spending about $57,000 in excess of the Gleason contract. Claimant in Gleason demanded additional compensation for work done up until the time of suspension of the contract. The suit was in assumpsit for the value of work done by Claimant. The Court held that the State was justified under the contract to suspend work by Claimant.

One item of damages claimed in Gleason was for delay in work through winter months. The Court denied this, as it said it wasn’t clearly shown to be the fault of Respondent, but even if it was, they should have proceeded under the contract terms to have the architect estimate the loss, and if not satisfied, resort to arbitration as provided in the contract. This they did not do. The Court concluded that what the State paid to complete the contract after suspension exceeded any claim the contractor could make.

In Gleason, the Court refused to consider the claim because it “wasn’t clearly shown” that the delay was the fault of Respondent, and what the State paid exceeded any claim that the Contractor could make. The case seems to support the fact that the contract provided that the proper remedy to pursue was through arbitration if the architect’s value of extra work was unsatisfactory. See Gleason, supra, 244 et seq.

Does Gleason actually foreclose Claimant? It’s true, delay damages are expected to be covered by a change order, but weren’t the delays such that they wouldn’t be expected to be included in a change order? Is there not a breach of contract where the owner’s own fault, independent of all others, causes delays of such magnitude that the impact is not possible to calculate? The owner is required not to interfere with the expeditious performance by the contractor. We believe that in this case the owner interfered at least in substantial part. This being the case, the Claimant isn’t required to go without a remedy except through approval of the architect.

In this regard our case has a limited application and is confined to a case where the owner’s sole conduct so interfered with the work progress that it amounts to a breach of contract.

This holding of the Court is limited strictly to cases where all the following elements are substantiated by the evidence:

1. Where the contract contains no clause which provides there shall be no damages for delays; and,

2. Where the delay is caused solely by the unanticipated fault of the owner without concurring causes; and,

3. Where, the delay damages are not already included in any change order nor, because of their nature and extent, they reasonably can be expected to be included in such change order by either party to the contract; and,

4. Where the damages solely caused by the owner create such an overall impact that they can be said to be a violation or breach of the contract not to interfere with expeditious performance of contractor.

Claimant is awarded $240,000, based on 65% culpability applied to total damages of $369,045.


author: Roe, C.J.

text:
    (No. 79-CC-1145
    McNeill Asphalt Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 26, 1984.

    David B. Daley, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

McNeill Asphalt Co., Claimant herein, seeks to recover $54,031.90, which it alleges is due pursuant to a contract between Claimant, as general contractor, and the Department of Transportation of Illinois, for construction of an airport runway extension at the Kewanee Municipal Airport at Kewanee, Illinois. For the purpose of earth excavation and embankment and attendant dirt removal, the general contractor employed Strunk Brothers Company as subcontractor.

Following the completion of the project, the State paid the general contractor (Claimant) the entire remaining balance, known and admitted by the State to be due under the contract. After such final payment was made, the subcontractor filed a mechanic’s lien. Upon ascertaining that all the funds to which its lien could attach had been disbursed, the subcontractor filed suit against the Claimant in the circuit court of the Fourteenth Judicial Circuit of Henry County, general division, case No. 78-C-13, for moneys alleged to be due based upon additional cubic yards of dirt excavated and carted by it and elevation surveys and plans submitted to it.

The contractor and subcontractor thereupon entered into a stipulation voluntarily dismissing the contractor in return for an assignment of a claim the contractor may have against the State. The assignment provided that in consideration of the aforesaid release, the contractor would undertake to actively pursue a suit against the State and any recovery thereon would accrue entirely to the subcontractor, with the condition that failure of any recovery would not affect the forgiveness of the claim that the subcontractor may have against the contractor, their account being settled between them on the basis of said assignment.

The net effect of the aforesaid assignment is that this claim before this Court is one exclusively of the subcontractor, Strunk Brothers Company, even though ostensibly pleaded by the general contractor. The Illinois appellate court, in Bates & Rogers Construction Corp. v. North Shore Sanitary District (1981), 92 Ill. App. 3d 90, 414 N.E.2d 1274, held that it was improper for a general contractor to plead the claim of a subcontractor since the subcontractor stood in a different relation to the State than the contractor, and further stated that the subcontractor’s sole remedy is under the Mechanics’ Lien Act.

Although admitting that the subcontractor has an interest in this claim, Claimant contends that this suit is based upon its own claim. This is contrary to the facts. The assignment executed by the Claimant transferred all of its right, title and interest in the claim, if any, to the subcontractor, and Claimant no longer has any rights in the property assigned. (People v. Wurster (1981), 97 Ill. App. 3d 104, 422 N.E.2d 650; Stavros v. Karkomi (1976), 39 Ill. App. 3d 133, 349 N.E.2d 599.

Inasmuch as there is no contractual relationship between the subcontractor and the State, the subcontractor has no standing to sue in its own name. (Weiland Tool & Manufacturing Co. v. Whitney (1963), 40 Ill. App. 2d 70, 188 N.E.2d 756.) The Illinois Mechanics’ Lien Act has adequately preserved the rights of the subcontractor (Ill. Rev. Stat., ch. 82, par. 23) by providing the method of filing liens against the owner. Hill Behan Lumber Co. v. Marchese (1971), 1 Ill. App. 3d 789, 275 N.E.2d 451, a case in point, held:

“Our research reveals that the sole (emphasis added) remedy of subcontractors against the owner of the premises is with the Mechanics’ Lien Act.” (Citing Traubco Food v. United Auto Workers (1970), 123 Ill. App. 2d 106, 258 N.E.2d 817; Vanderlaan v. Berry Construction Co. (1970), 119 Ill. App. 2d 142, 255 N.E.2d 615; Sudarth v. Rosen (1967), 81 Ill. App. 2d 136, 224 N.E.2d 602.

The opinion of this Court in the case of R. D. Lawrence Construction Co. v. State (1982), 35 Ill. Ct. Cl. 709, is further determinative of the issue herein. In Lawrence, the general contractor filed suit in this Court on its own behalf for a stated amount and for an additional amount on behalf of its subcontractor. This Court awarded the general contractor the amount of its own claim, but denied the amount claimed on behalf of the subcontractor. In the instant case at bar, the subcontractor failed to perfect its statutory lien and this Court cannot provide it greater rights than as provided by statute.

The Claimant finally contends that the claim herein comes within sections 8(a) and (b) of the Court of Claims Act and its provisions. (Ill. Rev. Stat., ch. 37, pars. 439.8(a), (b).) The contention is untenable. It is not a claim against the State, as discussed supra, since it is in reality a claim against the funds held for a contractor, and can only be enforced by a subcontractor in the manner provided for under the Mechanics’ Lien Act. Neither is this claim one founded upon any contract as none exists in the case at bar.

As for the merits of the claim, although it is unnecessary for us to rule on, we make the following observations.

The claim of $54,031.90 is based upon conflicting testimony governing the amount of dirt “cut and carted to the embankment area” of a runway extension of the project. The general practice in determining the quantity of dirt hauled is by taking surveys of the elevation of the area involved before and after construction. As per the testimony of various witnesses, condemnation proceedings caused the owner of the land to prohibit entry upon the land. The chief engineer of the State in charge of the project made an aerial survey before construction began. According to his testimony, because he believed aerial surveys are sometimes off one foot he arbitrarily proceeded to lower the aerial survey one foot and submitted plans to the contractor on such basis.

Subsequently, when entry was permitted on the land, the field crews and field men of the State advised the chief engineer that the actual elevations were practically equal to the original aerial survey and did not warrant his lowering the elevation the one foot. He then phoned a Mr. Brown, engineer and president of the subcontractor performing the excavation and carting, at his home and advised him to pay no attention to the original plans, but that there were stakes placed in the cut area showing the correct elevations and to be so governed. Mr. Brown denied having received the phone call, even though the chief engineer submitted the phone bill showing that a call had been made to Brown’s residence in the evening of the day stated.

The dispute as to the amount of dirt hauled appears to revolve around the veracity of the testimony as to whether the subcontractor had been notified as to the change in the specifications. Whether there was notice or whether proper notes were made in the diary of the engineer, or when or by whom, we feel, has no bearing on the quantity of dirt actually cut and removed. The field men, in their staking of the area, indicated the area elevation which governed the amount of dirt to be excavated and embanked. It was upon such elevations of the field men and crew of the State that the State did pay the general contractor the contract price of $1.30 per cubic yard of dirt so hauled and there should be no further payment due from the State for same.

Claim denied.


text:
    (No. 79-CC-1187
    Ruth M. Boe, Administrator of the Estate of Cheryl Boe, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 29, 1984.

    Law Offices of Peter J. Ferracuti & Associates, for Claimant.
    Neil F. Hartigan, Attorney General (James A. Koch, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This matter came on for hearing before Commissioner John P. Simpson for oral argument on two motions to dismiss by the Respondent. The first motion to dismiss was based on the failure of the Claimant to exhaust her remedies pursuant to section 25 of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.24— 5) and Rule 6 of the Court of Claims Rules. The second motion to dismiss was based on the Claimant’s failure to file a legally sufficient notice of claim.

With regards to the first basis for dismissal, to wit: the failure to exhaust all remedies, the following paragraphs of Claimant’s amended complaint are germaine:

“3. That on or about December 25,1978, at or about the hour of 9:35 p.m. thereof, CHERYL BOE, hereinafter referred to as Claimant’s Decedent, was a passenger in an automobile being driven by TIMOTHY SMITH in a southbound direction along and upon Interstate Route 55 at or near its intersection with U.S. Route 30 in the County of Will, State of Illinois.
o e o
5. That prior to said date, there was present at said location on the western shoulder of the southbound lanes of Interstate 55, a metal guardrail, which guardrail was supported by vertical metal posts.
6. That approximately one week prior to December 25,1978, said guardrail and post had been damaged so that the north end of said guardrail was not protected by any vertical post and did project outward to the north.
7. That prior to December 25, 1978, the Respondent, State of Illinois, had knowledge and notice that said guardrail had been damaged and that the north end of said guardrail was unprotected by any vertical post and did project outward.
8. That on or about December 25,1978, the automobile in which claimant’s decedent was a passenger was caused to strike the north end of said guardrail, as a direct and proximate result of which, the claimant’s decedent suffered severe injuries and died.”

On July 28, 1983, counsel for Claimant and Respondent took the evidence deposition of Timothy Smith, the driver referred to in paragraph three of Claimant’s complaint.

In his deposition, Smith testified that at the time of the deposition he was 22 years old (making him approximately 17 or 18 years old at the time of the accident). He further testified that he was driving the deceased in her car from O’Hare Airport to Ottawa, Illinois, and that it was snowing lightly. As he approached the scene of the accident, he was travelling approximately 40 miles an hour and he lost control of the car.

“A. I remember driving along Interstate 55 and then the car just started to slide and I lost control of it.
Q. Did you strike any objects along Interstate 55?
A. The guardrail, yes.” (Smith evidence deposition 6.)

As a result of the accident Miss Boe died and the driver broke 10 ribs, his upper right arm, right clavicle, and the right side of his jaw. Mr. Smith spent 25 days in the hospital.

Mr. Smith testified that there was no snow accumulation, because the cars were blowing the snow away, but that there might have been an ice patch.

“I couldn’t say exactly when the accident happened that there wasn’t any ice on the road because everything happened so fast and the car just lost control and just started sliding. I would assume there was an ice patch.” (Smith evidence deposition 11).

Mr. Smith testified that the car slid off to the left and started sliding down the highway sideways, and that he tried to avoid the guardrail. He said that the car did not respond and that it just kept sliding into the guardrail.

Mr. Smith further testified that at the time of the accident he did not own a car and had no insurance. As a result of the foregoing testimony, it became clear on the face of the record that up until the expiration of the statute of limitations, Claimant had a possible cause of action against Timothy Smith. It is further clear from the answers to interrogatories filed herein by Claimant in November 1979, that the Claimant knew of the existence of Mr. Smith long before the statute of limitations had run.

Approximately three months after the deposition of Smith, Respondent filed its motion to dismiss based on the failure to exhaust remedies.

The position of the parties is well stated in their respective pleadings. In effect Respondent argues that pursuant to section 25 of the Court of Claims Act and Rule 6 of the Court’s Rules, claimants must exhaust all possible causes of action before seeking final disposition of a case filed in the Court of Claims. Claimant argues that claimants should be given a certain latitude and discretion in determining whom to sue. From Claimant’s point of view, it probably did not seem reasonable to sue an uninsured 18-year-old boy with no assets.

However, this Court in its holdings on this issue does not seem to recognize any discretion on the part of claimants to pick and choose whom they wish to sue. In Lyons v. State, 34 Ill. Ct. Cl. 268, the Court held as follows.

“The requirement that Claimant exhaust all available remedies prior to seeking a determination in this Court is clear and definite in its terms. It is apparent to the Court that Claimant had sufficient time to both become aware of his other remedies and to pursue them accordingly. The fact that Claimant can no longer pursue those remedies cannot be a defense to the exhaustion requirement. If the Court were to waive the exhaustion of remedies requirement merely because Claimant waited until it was too late to avail himself of the other remedies, the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants. We believe that the language of section 25 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.24 — 5) and Rule 6 of the Rules of the Court of Claims quite clearly makes the exhaustion of remedies mandatory rather than opitional.” 34 Ill. Ct. Cl. 268, 271-72.

Based on the foregoing, Respondent’s motion to dismiss based on the failure to exhaust remedies is granted.

Because the first ground for dismissal is sufficient and dispositive, there is no need to discuss the second ground.


text:
    (No. 80-CC-0238
    Opal R. Simpson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 21, 1985.

    John H. Squires, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim arises out of an accident which occurred on September 3, 1978, at New Salem State Park. Claimant asserts that her injury was caused by the failure of the Illinois Department of Conservation to adequately maintain the walkway in New Salem State Park. The facts are not in dispute.

On July 9, 1982, a hearing was held before Commissioner Robert J. Hillebrand. Claimant subsequently filed a brief, but the Respondent has not done so and the time period has long since passed. Commissioner Hillebrand has duly filed his report which the Court has carefully considered along with the other evidence in the record.

On September 3, 1978, Opal Simpson, Claimant, a retired restaurant and motel owner, and members of her family visited New Salem State Park. Claimant was walking in an easterly direction on an asphalt pathway in the park. The pathway was not level with the adjacent ground, but rather had a drop-off of 1 to 1M inches along its border. There was no warning device of any kind for this drop-off, nor was there any curbing. As another group of tourists approached from the opposite direction, Claimant stepped off the asphalt, admittedly without looking, and slipped and fell. As a result of her fall, she fractured the fifth metatarsal bone in her right foot.

Richard Welchans, a park ranger, testified that the asphalt path that Claimant complains of is located inside New Salem State Park. The purpose of the path is to allow foot traffic through the park. In Welchans’ opinion, warning signs would hinder the authenticity of the village area of the park. The village is a re-creation of New Salem as it existed in the 1830’s. Welchans stated that, while the asphalt is there to allow easier passage through the village, the park is designed to attract the least amount of attention to the asphalt which is inconsistent with the 1830’s atmosphere. Welchans testified that, in order to reach the cabins and other sites in the park, it is necessary to leave the asphalt path and to travel on other surfaces and that the park averages over 300 visitors per day and to his knowledge this is the first incident of this kind.

The State is not an insurer of Claimant’s safety. To recover damages, Claimant must prove by a preponderance of the evidence that a dangerous or defective condition existed on or around the pathway, that the State knew or should have known of this condition, and that this condition caused Claimant’s injuries. (Perlman v. State (1979), 33 Ill. Ct. Cl. 28.) The testimony of Richard Welchans makes it clear the State knew of the condition on and around the pathway in question. The issue then is whether the condition was unreasonably dangerous so that the State had a duty to warn of the condition or otherwise protect the public using the pathway.

While the issue is easy to define, the application is more difficult. Here, the drop-off on the side of the pathway measured less than two inches. The general rule in such an instance has been clearly stated to be that, while “minor” defects in a walkway are not actionable, it is within the purview of the trier of fact to determine negligence when the defect is such that a reasonably prudent man should anticipate some danger to persons walking upon the walkway. (Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601, 145 N.E.2d 105; Warner v. City of Chicago (1978), 72 Ill.2d 100, 378 N.E.2d 502.) The problem is defining what is a “minor” defect. Warner v. City of Chicago, 72 Ill.2d 100, 101, 378 N.E.2d 502, 503.

It is the opinion of this Court, in considering all the testimony and in viewing the photographs, which show in good detail the drop-off in question, that any defect which existed was not so unreasonably dangerous as to create liability against the State. The walkway was in a rustic, almost rural area. There was no breaking in the pavement itself; rather, the ground along the side of the walkway was lower in some places than the walkway surface. Such a condition is not unacceptable or unreasonable in this factual context.

Based on the foregoing, it is hereby ordered that this claim be, and is, hereby denied.


text:
    (No. 80-CC-0297
    Linda Weislo, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 7, 1984.

    Gerald C. Bender, for Claimant.
    Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This is a claim for personal injury sustained by Claimant, as a result of an automobile accident that occurred on March 11, 1979, on Mannheim Road, just south of Zemke Road in the city of Chicago, Cook County, Illinois.

The evidence clearly showed that the State of Illinois was responsible for the maintenance of the highway at that time. The evidence further showed that the road was in a hazardous condition.

It is Claimant’s contention that she was driving her car southward on Mannheim Road near Zemke Road, struck a rough grade and a pothole in the pavement, thereby causing her to lose control of her vehicle, veering off the roadway and striking a utility pole. The car was a total wreck. The accident occurred at approximately 4:30 p.m.

An eyewitness to the accident, Donald Wagner, testified that at the time of the accident, the pothole that Claimant struck was in existence for about a month and that he traveled Mannheim Road daily as a truck driver and learned to slow down and drive on the shoulder of the road to avoid the pothole.

As a result of the accident, Claimant suffered a broken jaw and other injuries to her arm and face. Claimant has a scar across her face approximately 3 inches long. Because of the broken jaw, there is an overlapping portion of scar and a bony pathology which is visible on her face that is a permanent condition and causes much pain in the cold weather. Claimant also has problems eating.

As to her scar, additional surgery to lessen the appearance of the scar would cost approximately $900.00. Even after surgery the scar would not be erased but would be permanent.

At the time of the accident, Claimant’s car was worth about $850.00. After the accident, Claimant sold her car for scrap for $35.00.

Respondent’s witness, Roman Kostelyna, was employed as the yard technician for the Illinois Department of Transportation at the North Side garage located at Harlem and Irving in Chicago. He testified that the southbound lanes of Mannheim Road fall within the jurisdiction of the North Side garage, that making regular inspections of that section of Mannheim Road was part of his duties and that during the winter months potholes are patched with cold patch, a temporary type of asphalt material with a life expectancy of only a few weeks. Mr. Kostelyna, having viewed Claimant’s and Respondent’s exhibit of the pothole, described it as a hazard.

Mannheim Road is regarded as a high density route whose heavy high-speed traffic would knock the cold patch out of the ground. The evidence is to the effect that this was a very poorly maintained highway.

Evidence was introduced to the effect that none of the repairs were of a recent date. It is clear that the State had actual, as well as constructive, knowledge of the hazardous condition of the highway.

Claimant, before she can recover, must prove she was free from contributory negligence. It is clear from the record that she was traveling the highway as any motorist has a right to do and that her driving did not in any manner contribute to the accident. She testified that she hit the pothole, went off the road and struck the utility pole.

From the evidence, we find that the State was negligent in allowing the pothole, a dangerous condition, to exist on the highway and that the State’s negligence was a direct and proximate cause of Claimant’s injuries, that this dangerous condition existed for a long period of time, giving the State constructive notice of said dangerous and hazardous condition, and that the Claimant was in the exercise of ordinary care and was not guilty of contributory negligence. Croughan v. State, 29 Ill. Ct. Cl. 434; Manos v. State, 30 Ill. Ct. Cl. 639.

For her injuries, loss of time and property damages, the Claimant is hereby awarded damages in the sum of sixteen thousand ($16,000.00) dollars.


text:
    (No. 80-CC-0439
    American Bank of Cerro Gordo, Guardian of the Estate of Gene Ray Fickes, a minor, and Barbara Keith, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 27, 1984.

    David A. Dvorak, for Claimants.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim has been brought by American Bank of Cerro Gordo as guardian of the estate of Gene Ray Fickes, a minor, and by Barbara Keith, the mother of the minor, to recover for injuries inflicted upon the minor by Carrie Reed, a foster parent licensed by the Illinois Department of Children and Family Services (DCFS).

Gene Ray Fickes, the minor, was born October 20, 1977, of Claimant Barbara Keith and Raymond E. Fickes. The child resided in Decatur with his parents, who were not married. Kimberly, Barbara Keith’s four-year-old daughter, also resided in the home.

In early 1978, the household was referred by DCFS to the Youth Advocate Program in Decatur because of the need of the family for help in caring for the two children. Barbara Keith and Raymond Fickes had a history of heavy drinking and fighting with each other to the extent that physical injury was inflicted upon one or the other. There is no evidence, however, that either child was ever physically abused. Both parents admitted in their testimony that they suffered from alcoholism.

On May 28, 1978, Barbara Keith contacted the Youth Advocate Program and requested that Gene Ray be placed in a foster home because the parents had been drinking heavily and were afraid they could injure the child. Kimberly had already been taken from the home by Barbara and Raymond to reside with Doris Fickes, Raymond’s mother. Eleanor Bridgman, the caseworker for this family, went to the home, took physical custody of the child and placed the child in a foster home for shelter care until DCFS could make a more long-term placement. DCFS then filed proceedings for involuntary surrender, and on May 31 the Circuit Court of Macon County held a shelter care hearing pursuant to section 3 — 6 of the Juvenile Court Act (Ill. Rev. Stat., ch. 37, par. 703 — 6). On that date the court found that the child needed immediate protection and should be detained in shelter care. DCFS was appointed temporary guardian with authority to place the child in a “licensed foster home until further order of court.” An adjudicatory hearing was set for June 30,1978.

On June 28, 1978, Mrs. Keith was found to be indigent, and Jessica Stricklin was appointed as her counsel in the juvenile proceedings.

On July 24,1978, the circuit court placed the minor into custody of Larry and Carrie Reed, who resided in Blue Mound, Illinois. Mr. and Mrs. Reed had been licensed by DCFS on May 29, 1978, to serve as foster parents for children between the ages of two years and 18 years. At the time of the court order, the minor was just nine months old. In fact, the minor had been placed with the Reeds on June 5,1978.

In August 1978 the minor suffered a broken leg. Mrs. Reed reported he had fallen and DCFS found no reason to suspect otherwise.

In the meantime, because of persistent complaints by Mrs. Keith that the child was not being properly cared for by the Reeds, Jessica Stricklin, the child’s guardian ad litem, filed a petition to return the child to his natural mother, who was now separated from the child’s father. On September 14, 1978, the court authorized DCFS to place the child back with his mother, subject to DCFS supervision, and further entered an order of protection against the father.

In October, while the child’s return was being processed, the child was sick for an extended period of time. Claimants allege that the illnesses were caused by the negligence of DCFS and Carrie Reed. The child, however, was not taken out of the foster home until November 8, 1978, because of various bureaucratic delays in DCFS proceedings. On November 8, the day before DCFS was scheduled to remove the child, the foster mother, Carrie Reed, seriously injured the child by slamming his head against the floor, causing severe internal head injuries to the child. When the DCFS worker, Adelaide Price, picked up the child the next day, she noticed that the child was not responsive. She immediately took the baby to the DCFS office in Decatur, from where the child was rushed to Decatur Memorial Hospital. At the hospital it was determined the child had been badly abused. Carrie Reed was subsequently arrested for child abuse. She confessed to a series of acts, including choking the baby, sexually molesting the baby, breaking the baby’s leg in August and smashing the baby’s head on November 8. She pleaded guilty to child abuse and was sentenced. Claimants allege that the State is hable in damages for the injuries suffered by Gene Ray Fickes.

The first theory proposed by the Claimants is that the Court of Claims Act makes the State liable for the torts of its officers, agents or employees.

Section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.8(d)) provides:

“The Court of Claims shall have exclusive jurisdiction to hear and determine the following matters ...(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit. . .”

The question therefore is whether a private corporation would be liable for similar acts by its agents.

Under the laws of the State of Illinois, a principal is liable for torts which are wilfully, wantonly, or maliciously committed by an agent acting under the authority or direction of the principal. Where, however, the agent abandons the business of the agency and commits an act outside the scope of his authority or employment in a wanton, wilful, or malicious manner, the principal is not liable therefor. Kokenes v. Cities Service Oil Co. (1974), 24 Ill. App. 3d 483, 321 N.E.2d 338.

In this case there is no question that Carrie Reed was not acting under the direction of DCFS. In fact, she was acting completely contrary to the purpose for which she was employed. Therefore, the Respondent is not liable for the actions of Carrie Reed under an agency theory.

Claimant’s next theory of liability is that the State was negligent in its supervision of Carrie Reed. Section 2 of the Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1977, ch. 23, par. 2052) provides:

“The Illinois Department of Children and Family Services shall, upon receiving reports made under this Act, protect the best interests of the child, offer protective services in order to prevent any further harm to the child and to other children in the family, stabilize the home environment and preserve family life whenever possible. Recognizing that children can also be abused and neglected while living in public or private residential agencies or institutions meant to serve them, this Act also provides for the reporting and investigation of child abuse and neglect in such instances.”

Furthermore, section 5 of the act creating DCFS (Ill. Rev. Stat. 1977, ch. 23, par. 5005) provides that DCFS shall provide direct child welfare services by

“(I) preventing or remedying or assisting in the solution of problems which may result in the neglect, abuse, or exploitation of children; . . . and (4) providing adequate care of children away from their homes, where needed, in foster family homes or day care or other child care facilities.”

The State therefore has an affirmative duty to investigate complaints made about foster parents such as Carrie Reed and to supervise the foster home. The State contends that their agents and employees were not negligent in their supervision of this child and that they took all reasonable precautions to safeguard and supervise the foster home.

Claimants’ allegations regarding DCFS’ negligent supervision of Carrie Reed are basically twofold. First, the Claimants allege that, although the real mother, the real father, the real grandmother and the child’s guardian ad litem made repeated complaints that the baby was not being properly cared for, DCFS made no attempts to correct the problems. Second, the Claimants allege that an agent of the State admitted to the child’s guardian ad litem that DCFS knew that Carrie Reed had made conflicting statements regarding the child’s broken leg, but that DCFS did not make a thorough investigation regarding the discrepancy. We find that neither allegation is sufficiently supported by evidence of negligence.

Testimony by Barbara Keith and Jessica Stricklin substantiates the fact that repeated complaints were made to Standley Moore at DCFS. As a matter of fact, Barbara Keith and her mother can be characterized as chronic complainers. Barbara Keith and her mother complained repeatedly that the child was sick, that the child was dirty, that the child’s bottles were dirty, that the child “looks like a little animal,” that the child “doesn’t laugh anymore,” that the child was being mistreated, that the child was not receiving proper medical attention, that the foster parents bought the child too many nice things and that the child wasn’t wearing the clothes that they had bought but rather he was wearing clothes that the foster parents had bought. Jessica Stricklin’s complaints to Standley Moore were in substance just transmittals of Barbara Keith’s complaints, except for the one occasion when Ms. Stricklin actually saw the child, at which time the child was apparently ill and was given some medical attention.

Standley Moore’s response to these complaints was to send a “homemaker” or helper, Adelaide Price, to help Carrie Reed. Ms. Price’s testimony indicates that, while Carrie Reed did have some minor problems in these areas, most of the complaints were greatly exaggerated. Carrie Reed was an adequate mother, at least while Ms. Price was present. Furthermore, Ms. Price testified that the baby did receive proper medical attention and that in at least one instance Carrie Reed took the baby to her family doctor after the natural mother had taken the baby to a different doctor, who had prescribed medicine too strong. Ms. Price further stated that, in the many instances in which she gave the baby a bath, she never once saw a bruise or abrasion on the baby’s body.

Eleanor Bridgman, a caseworker supervisor with the Youth Advocate Program in Decatur, an agency working with Barbara Keith, corroborated Ms. Price’s evaluation of Barbara Keith by testifying that she was with Barbara Keith on at least one occasion when Mrs. Keith complained about the baby receiving improper care from the foster mother even though the baby appeared to be clean, adequately dressed, and physically healthy. In light of this testimony it would appear that Standley Moore and DCFS did take reasonable steps to investigate and remedy the complaints.

The next allegation arises through the testimony of Jessica Stricklin, the child’s guardian ad litem. According to Ms. Stricklin, Eleanor Bridgman admitted that DCFS knew Carrie Reed had given two different statements concerning the baby’s broken leg but that DCFS did not investigate the discrepancy. Ms. Bridgman herself was never questioned on this point during her evidence deposition. The State objected to the evidence on hearsay grounds. The commissioner sustained the objection but allowed an offer of proof. The question is whether the evidence should be allowed as an admission by an agent of the State. Before a statement can constitute an admission by an agent, it must be shown that the person was an agent or employee, that the statement was made about a matter over which the agent or employee had actual or apparent authority, and that the person spoke by virtue of his or her authority as an agent. (Cornell v. Langford (1982), 109 Ill. App. 3d 472, 440 N.E.2d 985; Kapelski v. Alton & Southern Railroad (1976), 36 Ill. App. 3d 37, 343 N.E.2d 207.) It is the opinion of this Court that Eleanor Bridgman does not meet these requirements. The testimony of Eleanor Bridgman was that she was a casework supervisor for the pre-teen program in Decatur. As such she was an employee of the State and did handle referrals from DCFS. She was, however, by her own testimony only responsible for situations in which the DCFS thinks the family needs extra help in order to maintain the children at home. While Eleanor Bridgman was instrumental in physically removing the child from the real parent’s home, nothing in the record indicates that she held any authority over the care and supervision of the child once the child was removed from the real parents. Furthermore, nothing in the record indicates that Eleanor Bridgman ever had access to the files regarding the foster care of the child, nor is there anything in the record to indicate that Eleanor Bridgman had any advisory, supervisory, or investigatory powers concerning the foster parents or the protection of the child after the child was placed in the foster home. Eleanor Bridgman had no authority to make any statements regarding either the care provided by the foster parents or the DCFS investigations of that case. Ms. Stricklin’s testimony regarding the admission of Eleanor Bridgman is therefore excluded. Furthermore, the State has produced evidence that it did investigate the first accident and the illnesses and that as part of that report a Dr. Mathias reported to the DCFS that:

“I examined (Gene Ray Fickes) on 10/30/78.1 did not find any evidence of physical or mental abuse to the child. He was alert and cooperative with the examination. He went to his foster mother willingly and without any sign of fear or hesitation.
... In summary I have known the foster father, Larry Reed, for 25 years and his wife, Carrie Ellen, for approximately 5 years, and know them to be God fearing Christians and are incapable of any form of child abuse or neglect.”

The fact that Dr. Mathias may have been incorrect does not affect the fact that DCFS could reasonably rely on Dr. Mathias’ professional judgment. We find that the allegations of negligent supervision are not substantiated by the evidence.

Claimants allege that the State was negligent in hiring Carrie Reed because they should have known she was not fit to be a foster parent, that the State compounded the negligent act by placing Gene Ray Fickes in her home, and that as a proximate result of the State’s negligence Gene Ray Fickes suffered severe injuries. We agree with this allegation.

This Court held in Schmidt v. State (1976), 31 Ill. Ct. Cl. 446, that the State was liable for the acts of an unqualified doctor hired by the State. In Schmidt, the agent of the State, under the guise of being a qualified physician, gave a patient an over dose of medication. The unqualified physician was thereafter arrested and convicted of involuntary manslaughter and reckless conduct, and the estate instituted a civil suit against the State for damages. This Court awarded damages based on the fact that the State was negligent in hiring an unqualified physician.

While it is much easier to ascertain whether a person is qualified to be a physician, this Court has recently allowed damages against the State under the same theory as the one proposed by the Claimants in this case. In Carr v. State (1979), 33 Ill. Ct. Cl. 128, this Court sustained an award of $90,000 to a ward of the State who suffered personal injuries as a result of being attacked by his foster father. The foster parent in that case, as in this case, was licensed by DCFS. The Court determined that DCFS had a duty to provide him with an adequately safe and healthy environment. Part of this duty included placing the ward in suitable foster homes under the care of competent foster parents. “Another aspect of this duty is the obligation to make reasonable efforts to determine whether a foster parent is capable and willing to properly care for a ward.” Carr, supra, at 129.

We believe that the State failed to meet its duty to “make reasonable efforts to determine whether a foster parent is capable and willing to properly care for a ward” in this case. The State argues that its investigation was unreasonably hampered by Carrie Reed and that, because Carrie Reed lied about her past, they could not have reasonably determined her past psychiatric problems. While Carrie Reed did indeed lie to DCFS about her past history by characterizing her college days as happy, when in fact she had undergone psychiatric treatment for severe depression and attempted suicide, the DCFS’ own files reflect negligence in the licensing of Carrie Reed.

According to the testimony of Mrs. Lucille Biggs, who is employed in the licensing division of DCFS, the Department requires an applicant to list three character references. Two of the three character references must then write letters to DCFS on behalf of the applicant. DCFS sends out requests for the references to all three character references listed and two of the three must respond before an applicant can be accepted. In the case of the Reeds one of the three references did not respond, but Rev. Robert C. Clark and Mr. and Mrs. Skelton did respond.

Reverend Clark’s letter stated that he had known Larry Reed for about 18 years, and he recommended Larry highly. On the other hand, Rev. Clark stated that he had known Carrie Reed for about five years and that he had “grave reservations” about her abilities. He states:

“. . . I have grave reservations about (Carrie’s) ability to function (as a foster parent). She is a scatter brain from the word go who has extreme difficulty comprehending the reality of a situation. I would characterize her as one who would tell jokes at a funeral. She would not be capable of reading a child’s needs nor responding to them in a constructive manner and yet she would glorify to others the way she handles every situation properly. She has so much growing up to do that I see her needing a foster parent rather than being one.
I hate to think that Larry would have to be deprived of children in his home because of his wife but I simply could not recommend them for the placement of children due to her ineptness.”

The State argues that one bad reference does not and should not mandate that the applicants be rejected. This may be correct, depending upon the nature and facts. One bad reference need not disqualify an applicant if DCFS is satisfied that the allegations in the recommendation are unfounded. This is not the case here. The record clearly shows that DCFS simply ignored the letter. Lucille Biggs admits that Rev. Clark was never contacted by DCFS despite the overwhelmingly negative comments in his letter.

The State argues that this letter must be balanced against the “positive” letter written by Mr. and Mrs. Skelton. The letter written by the Skeltons must be given weight. However, the Skeltons’ letter does not justify the fact that DCFS ignored Rev. Clark’s letter. DCFS is responsible for the protection of the child. It therefore has a duty to thoroughly investigate potentially harmful situations. In this case it simply did not investigate Rev. Clark’s allegations.

While the State argues that the letter written by Rev. Clark was only a portion of the total picture, a statement by Standley Moore puts the letter in better perspective. In his testimony Standley Moore stated that you must weigh the credibility of the person writing the character reference. The Court takes note of the fact that Rev. Clark had ample opportunity to observe the Reeds. Many of the Reeds’ “charitable acts” listed on their DCFS application were done in conjunction with Rev. Clark’s church. The Court also takes note of the nature of Rev. Clark’s work and the nature of the letter — that is, this was not a standard reference letter but one that was unusually negative. Standley Moore apparently thought so, too, since in his testimony he stated very simply that he had never seen Rev. Clark’s letter before, but that if he had he probably would have removed the child earlier than he did. That statement alone contradicts the State’s dismissal of Rev. Clark’s letter.

Furthermore, DCFS’ only source of information on the applicants’ background comes from either the applicants or from the references listed by the applicants. When an agency such as DCFS receives such a negative recommendation from the applicants’ own choice of character references, that negative recommendation must be taken seriously. If such a recommendation is not adequately investigated, then the agency will be liable for damages arising out of the dangerous situation it has created.

Even the Skeltons’ letter states that the Reeds have previously been unable to adopt children and that “(the Reeds) may have problems but we feel they would be able to handle them as parents.” Yet the DCFS file shows no indication that these statements were ever investigated.

Another DCFS memorandum states:

“Mrs. Parr was much less hesitant about her son-in-law than her daughter. She kept adding, when talking about her daughter, ‘of course, I’m prejudiced.’ So I don’t know if she had reservations about her daughter or not. When I pushed her for a decision she would say T like to think she would made a good mother.’ ”

Another DCFS memorandum states that

“A recurring theme we heard about (Carrie) was words like ‘kooky’ or ‘nuts’. We tried to track the meaning of these words down. What the licensing worker and I could determine is that these are affectionate terms for her peppiness and some of her ways that in transactional analysis terms could be said ‘the child in her coming out’.”

Yet the same memorandum warns that

“we also need to watch if (Carrie) is ‘scatterbrained’ or if her flitty ways are just some child fun coming out of her.”

It is obvious that the licensing department of DCFS had reservations about Mrs. Reed. The State’s answer to the question of why these reservations weren’t alleviated before the Reeds were granted a license is exemplified by the testimony of Lucille Biggs, an employee of DCFS in the licensing department. At trial the following exchange took place between Claimants’ counsel and Lucille Biggs:

“Q. At the time the Reeds were approved for foster care, the department didn’t have a lot of foster families available for foster care, did they?
A. The department never has a lot of foster homes.
Q. I assume that had something to do with using the Reeds as a foster home in this case.
A. I can’t address myself to the using of the Reeds in this case. During the course of the study in the final decision we did not feel that we had enough information to deny the Reeds a license.”

In the opinion of this Court, such an attitude is inconsistent with the minimum standards for licensing foster homes. According to Children and Family Services Regulation 5.12, section 2, subchapter IIB, Personal Characteristics for Foster Parents, the “foster parents should be stable, responsible, mature individuals, who can exercise good judgment in caring for children ...” Furthermore, subchapter VA states:

“The adoptive home study shall be done with sensitivity and professional competence. The study of an adoptive home shall indicate a thorough knowledge of the adoptive couple and the adoptive family unit. There shall be ample evidence that the adoptive family can be reasonably expected to offer an adoptive child full opportunity for his potential individual growth and development.”

It is the duty of the DCFS to make a thorough investigation in order to provide ample evidence that the proposed foster parent is in fact capable. Lucille Biggs’ testimony indicates that contrary to the statute and regulations, DCFS took the attitude that if it did not have ample evidence of immaturity and instability, it would license the applicant. It is precisely this attitude which led to DCFS’ failure to make adequate investigations to uncover Carrie Reed’s prior mental health problems. As such, we find that DCFS was negligent in its duty to Gene Ray Fickes, and that the negligence of DCFS was a proximate cause of the injuries of Gene Ray Fickes.

Before turning to the question of damages, it is necessary to address one other theory of liability by Claimants — namely, that Respondent is liable for damages because DCFS violated its own regulations in placing a child younger than two years of age in a home licensed for children two years of age and older. Testimony by Lucille Biggs indicated that such age requirements were only to indicate the previous parental skills of the foster parent and not to indicate reservations about the character or mental stability of the parent. This being true, we find that such a mistake was not the proximate cause of Claimants’ injuries. The Court does take note of the fact, however, that this was another indication of the lack of following thorough procedures by DCFS.

Dr. Campion, a licensed psychologist engaged in the practice of clinical psychology, testified that traumatic injury to a child of Gene Ray Fickes’ age can have severe impact on the child’s development. Signs of bedwetting, violence, aggression, hyperactivity, anger and severe social difficulties manifest themselves. This effect can last indefinitely without treatment, and even treatment is not always successful.

Dr. Campion examined Gene Ray Fickes and determined that his behavior was abnormal. He had some head-banging behavior which indicates stress in a child. He also had indications of hyperactivity and aggressive and violent behavior. The child had difficulty in social situations and in sharing and receiving love. He also states that the child was beginning to show signs of what can be termed psychopathic behavior and, unless treatment is successful, Gene Ray could have permanent emotional problems. Dr. Campion felt that, based on the child’s background, he would need at least $20,000 worth of therapy and the longer the child waited, the less likelihood there was of success. Given the nature of the injuries, including the child’s pain and suffering, and given the possibility of a long and extended therapy with permanent emotional scars, we find that an award in the amount of $100,000.00, the maximum amount that can be awarded by this Court in a case sounding in tort, should be granted in this case. This amount should be placed in trust for the minor with the American Bank of Cerro Gordo, guardian of the minor, for the benefit of Gene Ray Fickes.

Claimant Barbara Keith has also requested an award for damages for her severe emotional distress resulting from the various acts of alleged negligence and liability which caused the serious injuries to her son. However, there is no evidence whatsoever that Barbara Keith is entitled to damages for mental distress, since she did not herself suffer any “contemporaneous impact” (Carlinville National Bank v. Rhoads (1978), 63 Ill. App. 3d 502, 380 N.E.2d 63; Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 445 N.E.2d 485) nor was she within the “zone of physical danger,” as recently defined by the Illinois Supreme Court (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1). Therefore we find that the claim of Barbara Keith must be denied.

For the reasons set forth hereinabove, it is hereby ordered that the sum of $100,000.00 be, and hereby is, awarded, in full and final satisfaction of this cause of action, to the American Bank of Cerro Gordo, guardian of Gene Ray Fickes, for the benefit of Gene Ray Fickes, a minor.


text:
    (No. 80-CC-0928
    Elizabeth Parato, Claimant, v. The State of Illinois, Respondent.

      Order filed December 13, 1984.

    Charles J. Kolker, for Claimant.
    Reed, Armstrong, Gorman & Coffey, P.C. (John L. Gilbert, of counsel), for Respondent.
   Roe, C.J.

This cause comes before the Court on the various pleadings including the amended complaint of Claimant and the stipulation filed by Respondent and Claimant. The Court having reviewed the entire matter and being fully advised in the premises finds the following:

1. Claimant filed her complaint in this Court on or about December 1,1979.

2. On September 21, 1981, the claim was removed from general continuance status because a companion claim in the Circuit Court of Jackson County was dismissed. The claim was restored to active status and assigned to a commissioner for hearing.

3. On or about March 11, 1982, Claimant filed an amended complaint in this matter which was allowed by the commissioner.

4. On or about March 30, 1982, Respondent filed a motion to dismiss the amended complaint. Said motion was heard by the Court on November 3, 1982.

5. On February 22, 1983, the Court ruled on the motion to dismiss, dismissing Counts III and IV of the amended complaint and deciding that the Court was without jurisdiction to award reinstatement and certain other relief requested by Claimant.

6. The Respondents stipulated that allegations contained in Count II with respect to untimely notice of nonrenewal of employment were substantially true and Claimant’s claim in regard thereto was reasonable to the extent of one year’s salary, i.e., $17,500.00. The allegations were:

(a) That the Claimant, Elizabeth Parato, was in a teaching position in the School of Nursing at SIU at Edwardsville, Illinois, for the academic years of 1975-76,1976-77, and 1977-78.
(b) That pursuant to the statutes of the Board of Trustees of SIU-E Claimant was to have been given notice of termination at least twelve (12) months prior to the expiration of her last academic year of teaching if the defendant was going to terminate her employment, pursuant to article VIII, section 6 — B—7(c), of aforesaid statutes:
(c) That Claimant was not notified of her termination for the academic year of 1978-79 until December 15, 1977, which was beyond the termination notice date as aforesaid;
(d) That Claimant fully performed her previous contractual obligations and was willing and ready to perform for the academic year for which was terminated but for defendant’s failure to allow her to perform;
(e) That as a result of not being allowed to teach for the academic year in question, Claimant suffered a loss of salary, to which amount there has been a stipulation by both parties and that such stipulation sets forth the breach of Claimant’s contract by Defendant which directly caused such loss, as set forth hereinabove and as set forth in Count II of Claimant’s amended complaint.

7. The parties stipulated that the claim is reasonable to the extent of and in the amount of $17,500.00.

8. Reinstatement is not a remedy available to be granted in cases such as this. Gendel v. State, No. 78-CC-1063.

9. The award of damages for loss of earnings is an appropriate remedy, especially when the parties stipulate thereto. (American National Bank & Trust Co. v. State, 32 Ill. Ct. Cl. 186. See also order from Court of Claims in this case dated February 22,1983.)

It is hereby ordered, based upon the allegations of the complaint and the aforementioned stipulation that Claimant be, and hereby is, awarded the sum of $17,500.00 as and for full and final settlement of the claim of Claimant.


text:
    (No. 80-CC-0950
    Valerie Daniels, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 14, 1984.

    Richman & Evins, for Claimant.
    Neil F. Hartigan, Attorney General (Francis Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant brought this claim seeking to recover for personal injuries and property damage arising out of an automobile accident which occurred during the winter of 1979. The case proceeded to hearing, briefs were filed, and the commissioner has filed his report with the Court. The case is now before us for decision.

The Claimant testified that on the date of the occurrence, January 3,1979, she left her home in Justice, Illinois, at approximately 7:00 a.m. She entered the Stevenson Expressway at LaGrange Road and proceeded in an easterly direction. Despite the fact that there had been a heavy snowfall some three days prior to the date of the accident, the expressway was generally clear. She testified that traffic was light and that she was proceeding at a speed of approximately 35 m.p.h. as she approached the area of the Damen Avenue exit ramp. At that time she was driving in the lefthand lane of traffic when she encountered chunks of ice on the roadway which caused her car to skid to the right, crossing through all lanes of traffic and onto and over the guardrail on the righthand side of the roadway. Her car dropped to the pavement below, a distance of approximately 20 or 30 feet. The police were called to the scene and Claimant was taken by ambulance to Mercy Hospital. She remained at Mercy Hospital for six days during which time tests were performed and she was treated for headaches. She was treated by Doctors Voris and Parames war during her stay at the hospital and after her release. She last saw these doctors in February 1979, and she received no further medical attention until September 1980, at which time she saw a Dr. Brahem because she was having pain in both knees. She had never experienced this type of pain prior to the accident.

The Claimant testified that she still has problems with her knee which aches when the weather changes or when she is required to stand up for an extended period of time. The only treatment she is taking at the present time is exercise of the legs and use of aspirin.

The Claimant testified the Mercy Hospital bill of $1,707.25 was paid by her insurance company with the exception of a charge to her of $8.50. In addition, she had medical expenses of approximately $650, all of which were paid by her private insurance. She further stated that at the time of the accident, she was employed by the Social Security Administration; that she returned to work in February 1979, and that she was paid her normal wages by use of “accumulated sick leave.” The Claimant also testified that her car was a total loss and that she paid the sum of $250 as deductible collision insurance.

Mr. Chlebicki testified that he was the supervisor of the Stevenson Expressway and that the normal procedure following a heavy snowfall is to clean up the expressway until it is “Code 1,” which means that the main lanes and the shoulders are free of snow and ice. He testified that in excess of 10 inches of snow fell on December 31, 1978; that the winds were high and gusting and that clean up of the expressway was hindered by the wind and severe cold.

Mr. Chlebicki testified that the elevation of the expressway in the vicinity of the accident made it difficult to clear. The difficulty occurs because the wind produces cooling effects on both sides of the roadway and the elevation of the structure prevents the Department of Transportation from dumping great loads of snow on the trucking company below it. Mr. Chlebicki brought with him certain records of the Department of Transportation relating to cleanup operation on the Stevenson Expressway during the period from December 31, 1978, through January 3, 1979. The records fail to indicate that any work was done by the Department at or near the scene of the accident following the snowfall and prior to the time of the occurrence.

Based upon the testimony of the witnesses and the documents offered in evidence, we find that the Claimant was proceeding with due care and caution for her own safety and that the Respondent was negligent in failing to properly clear the Stevenson Expressway at or near the Damen overpass.

Based upon the pain and suffering which the Claimant was caused by the occurrence and considering the fact that she had little or no out-of-pocket expense, we hereby award her the sum of $5,000.00.