author: Mitchell, J.

text:
    (No. 95-CC-0318
    Verna Mae Turner, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 22, 1999.

    Harris, Lambert, Howerton & Dorris (Robert H. Howerton, of counsel), for Claimant.
    Jim Ryan, Attorney General (Brian Dees, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

Claimant, Verna Mae Turner, seeks judgment against Respondent, State of Illinois, for injuries allegedly sustained by the Claimant when she fell while negotiating a concrete stairway at the grandstand at the DuQuoin State Fairgrounds. Claimants complaint alleges that on September 5, 1993, while attending a show at the grandstand at the DuQuoin State Fairgrounds, Claimant attempted to descend the stairs and fell breaking her hip. Claimants fall is alleged to have occurred as a result of Respondents failure to properly light the stairs, mark the stairs with reflective tape or paint or maintain the stair steps so that the steps were of consistent width and height. Respondent has denied the material allegations of the complaint and tendered affirmatively that Claimant was guilty of negligence and had assumed the risk by attempting to exit a grandstand event prior to its conclusion. Claimant denies the affirmative allegations of Respondents affirmative defense.

Claimants friend, Betty McSherry, testified that she and the Claimant attended a concert at the grandstand on the occasion in question. The entertainment was at night. The grandstand lights were dimmed during the performance. Claimant and the witness decided to leave early to avoid the turmoil of getting out of the parking lot. The photograph, identified as Claimant’s Exhibit No. 5, showed the aisle as one is looking down toward the stage. Also see Claimant’s Exhibit No. 1, which is the view looking up the stairs. There were no aisle lights. There is a hand rail on the stairs but not where Claimant fell. The rails are shown in Claimants Exhibit No. 1 and stop at about the area of the sign that says “Section Box M.” There are no hand rails on the bottom two or three steps. McSherry marked on Claimant’s Exhibit No. 1 with a ballpoint pen the location from where the Claimant fell descending the stairs. McSherry and Claimant were holding hands as they walked down the steps. At the bottom of the steps is an aisleway. Claimant was in front and McSherry was behind. McSherry and Claimant were holding on to seat backs as they walked down. There were other people coming down die stairs at the same time, some behind and some in front of the Claimant and her friend. The steps are of different height and width. McSherry testified that Claimant’s physical condition prior to the accident was excellent and the friends did a lot of walking.

Helen Russell, a friend of the Claimant, was called on behalf of Claimant and testified. Russell testified that Claimant was vigorous prior to tire accident but after the accident was much less so and complained of discomfort.

Claimant’s husband testified that they had been married 58 years and before the accident she was very vigorous and after the accident she is in pain and she can’t do the things she used to do.

Gene Turner, the Claimant’s son, testified that, before the injury, people were amazed at the vigorous nature of his mother and after the injury his mother does a lot of complaining and is much less vigorous and active.

Claimant testified that, in order to get to their seats, she and McSherry had to climb the stairs. While the show was in progress, they decided to leave early. Claimant’s Exhibit No. 5 shows the stairs they had to go down as they left the show early. The lighting was dim. There were no other people on the stairs as the Claimant and her friend left. They were descending the stairs slowly. Claimant could not remember holding on to anything as they went down the stairs. Claimant testified that she was watching where she was going and was looking at the stairs as she descended. There were no lights on the seats or rails or stairs, and no reflective tape. There were no signs telling that the size and height of the steps were different. The handrails do not go all the way to the bottom of the stairs as shown on Claimants Exhibit No. 1. Claimant and her friend, Betty, were holding hands as they walked down. Claimant fell from the stair marked “VT” on Claimants Exhibit No. 1. She thought it was the lowest step and fell.

On cross-examination, Claimant testified that she had been to the grandstand at the DuQuoin State Fair on earlier occasions, and had seen several shows prior to the time when she fell. She did not recall how many. At the time of her deposition, she testified it might have been around six or eight times. It could have been more than six or eight times, but could not have been any less. On previous occasions, when Claimant went to a show in the grandstand, she always sat above the walkway. She had been up and down these steps before. When she was standing on the step marked “VT” on Claimants Exhibit No. 1, she thought it was the last step. Claimant also testified that, as she was standing on the step that is marked “VT” on Claimants Exhibit 1, she thought that she had to step one more time. She just fell off the bottom step. This was not the first time she had left a grandstand show early. Claimant had no trepidation about leaving the show early when the lights were dim and thought it would be safe. The lights were very dim. Claimant thinks that, if the lights had been brighter, she would have seen the step. Claimant said she was looking down but it looked like the last step, and that she was going to step on to the floor. The bottom step was a lot wider.

Claimant’s photographer was called and testified about photographs and measurements as demonstrated in Claimant’s Exhibits Nos. 1 through 5. Claimant’s Exhibit No. 2 is a photograph of the steps using a tape measure to measure the distance from the bottom of the step to the top, which on the photograph indicates about 8V2 inches. This is the step that is immediately below the step marked 1. Claimant’s Exhibit No. 3 shows the measurement of step 1 to be 7 inches. There is a difference in height of IV2 inches. Claimant’s Exhibit No. 4 is a photograph of the width of the step immediately below step 1. There is a difference in the width of the steps as one descends. The first step down is around 9 inches or 9M inches, and then the one below it is right at 18 inches.

Respondent called Claimant’s friend, Betty McSherry, who testified that, on the occasion in question, there had been people going up and down the stairs during the show for drinks and sandwiches and moving up and down the stairs in the grandstand. When the show starts, the grandstand house lights are dimmed for the show and it was under these conditions that she saw people moving up and down the stairs in and out of their seats. There were a few people leaving the show at the same time as the Claimant and McSherry.

Chris Purcell was called and testified on behalf of Respondent that he had worked at the DuQuoin State Fair for the State for 13 years. Purcell assists the Manager, books the grandstand entertainment, takes care of concessions and keeps the cash books and is thoroughly involved in the grandstand shows during the DuQuoin State Fair. The State took over the operation of the DuQuoin State Fair in 1986 and had run shows up through the period of 1993. The grandstand was constructed in 1947 and has house lights that are on a different system than the stage lights. The lights can be run independently. During shows, the house lights are dimmed. The lights do not go off completely. People move in and out of the stands during the shows. Patrons move up and down the stairs to their seats.

This Court sustained Respondents objections to Claimants Exhibits Nos. 2, 3 and 4 on the basis of relevance and materiality. The evidence was to the effect that the steps shown in Exhibits Nos 2, 3 and 4 were not the steps upon which the Claimant described the accident took place, but were photographs and measurements made for identification purposes as indicative of the differences in the steps below where the Claimant fell. This Court sustained the objection, noting that the steps shown in such exhibits were not where the Claimant fell, and it could not be determined from looking at the photographs if the same differences existed on the steps directly and immediately involved in her fall. For the convenience of the Court, the photographs to which objection was sustained were made part of the record, so that the Judges of the Court of Claims could review the ruling of the Court on this point.

Both parties were invited specifically by this Court to benefit the Court with briefs as required under the Rules. Respondent has not seen fit to provide a brief, despite the Courts concern regarding what standards should apply to step uniformity in grandstands owned and operated by the Respondent.

The State has a duty to use ordinary care to keep its property reasonably safe for the benefit of those who come upon its property as invitees and to warn them of hazardous conditions not readily apparent. In order for Claimant to establish a breach of Respondents duty, she must prove by a preponderance of the evidence that a dangerous condition existed, that the State had actual or constructive notice of the dangerous condition and that the State’s negligence was the proximate cause of the Claimant’s injury. (Hall v. State (1991), 45 Ill. Ct. Cl. 276, 280.)In Hall, supra, Claimant sought recovery from Respondent when she fell down an unlighted stairway while leaving the grandstand at the DuQuoin State Fair on August 31, 1988. As in the case at bar, Claimant in the Hall case sought damages in the amount of $100,000 for medical expenses and pain and suffering. In Hall, Claimant and her sisters went to a program at the grandstand in the DuQuoin State Fairgrounds. The Claimant and her sisters climbed upstairs to get to their seats. There were no ushers when they arrived, and the show had begun with the stage being lit up. It was dark and there were no overhead lights where they were sitting. The Claimant and her sisters decided to leave early at a time when only the stage lights were on. They left single file and the Claimant was third in line. Claimant testified that she could not see the stairs and it was very dark in the stairwell. There were no lights on the stairs and no lights on the end of the seats; however, there was a bannister or railing. Claimant testified she could not see where she stepped and felt her way down with her feet trying to feel the next step as she went. Claimant testified the steps did not feel uniform in size or shape. Claimant fell and was injured, having no idea how many steps she missed. Claimant and her sisters went down the same stairs they had come up.

In the Hall case, supra, this Court noted that the Claimant and her sisters went up the same stairs without difficulty in the same lighting. In the case at bar, Claimant arrived before dark and decided to leave early after it became dark. In Hall, Claimant’s companions negotiated the stairs without difficulty, and this Court noted that only the Claimant fell. In Hall, the Claimant did not recall holding on to the railing whereas, in the case at bar, Claimant recalled holding on to the railing and the backs of seats. In this case, as in the Hall case, there was no evidence presented that the State had actual or constructive notice of a dangerous condition. There was no evidence that anyone else had ever had a problem on the stairs. The State is not an insurer of the safety of persons visiting its fairgrounds but rather such visitors are owed a duty of reasonable care in maintaining the premises. (Hall v. State (1991), 45 Ill. Ct. Cl. 276, 281; Berger v. State (1998), 40 Ill. Ct. Cl. 120.) As in the Hall case, Claimant herein chose to go down the dark stairway prior to the conclusion of the performance. No experts were called to testify about any dangerous condition that could have been discovered. The pictures presented in the case at bar do not tend to reveal that the size or width of the steps constituted a dangerous condition per se.

The State is not an insurer required to pay for all accidents that occur on its premises, rather, the State must be found negligent. (Gillmore v. State (1986), 40 Ill. Ct. Cl. 85; DeWalt v. State (1994), 46 Ill. Ct. Cl. 293, 295.) In DeWalt, supra, the Claimant sought damages for a fall on a step leading to a platform at the Centralia Correctional Center. In DeWalt, Claimant did not establish that the placement of the step was unsafe and testified that “somehow or another, I [Claimant] tripped up this step.” DeWalt, at 296.

In Harder v. State (1991), 44 Ill. Ct. Cl. 235, Claimant brought suit for injuries sustained when she allegedly fell while negotiating a step near the Old State Capitol Building in Springfield. This Court pointed to the fact that many people had negotiated the step in question without incident, indicating that the Respondent was not negligent despite Claimants contention that a failure to provide guardrails or warnings proximately caused Claimants injuries. (See Harder, supra, at 237.) In Lyons v. State (1987), 39 Ill. Ct. Cl. 192, this Court denied recovery in a fall on stairs at Blackhawk State Park. The Court noted that minor defects are not actionable in that Respondent would not anticipate danger from minor defects. In Lyons, supra, this Court noted that it was a principle of law that an invitee, such as Claimant, assumes normal or obvious risks attendant to the use of the premises (see Lindberg v. State (1954), 22 Ill. Ct. Cl. 29), and that, because the State is not an insurer, it cannot be expected to remove all risks of accident which may occur in the absence of negligence. Obviously, there are risks inherent in ascending or descending concrete stairs in dim light that must be assumed by Claimant. Lyons v. State, at 195.

Evidence was introduced that many people gained access to and egress from the grandstands by using the stairs in their dimly lit condition during the performances. Claimant was not required to attempt an exit through the use of the stairs in dim light conditions, and chose to do so to suit her own convenience. Although Claimant points to certain alleged deficiencies with respect to the height or width of the steps and the absence or presence of railings at the exact point the Claimant alleges she fell, Claimant had ample opportunity to observe.

As in the Hall case, supra, the Claimant has not met her burden of proof to show Respondent negligent.

Therefore, the claim is denied.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 95-CC-0535
    Marcello Cerasani, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 27, 2001.

    Joseph V. Roddy Law Offices (Tamara L. Cummings, of counsel), for Claimant.
    Jim Ryan, Attorney General (Edward C. Seward III, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

On September 29, 1993, officers of the Chicago Police Department, armed with an arrest warrant issued in Du Page County, entered a well-known Chicago restaurant and identified themselves to the management of the restaurant. They then asked for Marcello Cerasani, the Claimant in this matter, who was a waiter at the restaurant. Mr. Cerasani was taken into custody in the public portion of the restaurant, brought into a kitchen and searched. He was there informed he was being placed under arrest for criminal conspiracy to acquire a controlled substance. The police officers handcuffed Mr. Cerasani and led him back through the restaurant and outside to a waiting vehicle. According to uncontradicted evidence, the restaurant was extremely crowded and there were patrons waiting outside for entry. Mr. Cerasani was transported to a Chicago Police station where he spent the night. He was taken to the Du Page County Courthouse the following day. At his first hearing in front of a judge, he was informed of the time frame of the alleged conspiracy. He immediately told the judge the same thing he had told the Chicago Police officers and the Du Page Metropolitan Enforcement Group (“DuMEG”) officers who had interviewed him before his court hearing, and anyone else who would listen. He told them that he was not the correct man. He even told the judge that he had been out of the country in Italy on the date he was alleged to have met with the undercover police officers at a Holiday Inn in Du Page County. Unfortunately, Mr. Cerasani sat in jail until the States Attorneys Office of Du Page County, with the prodding of Mr. Cerasanis newly acquired lawyer, finally dismissed the charges against him. The warrant, issued by a Du Page County judge at the request of the Du Page Metropolitan Enforcement Group, was used to arrest an innocent man. Mr. Cerasani brings this claim against the State of Illinois for false imprisonment.

The Claimants trouble began at a meeting, which occurred at a hotel in Du Page County on March 22, 1993, some six (6) months prior to the arrest of the Claimant. On that day, an undercover Du Page Metropolitan Enforcement Group officer, David Bruno, met with three suspects to discuss the sale of cocaine. This first meeting was the only contact between the undercover officer and an imposter. One of the suspects used the name Marcello Cerasani. Further, the suspect, who utilized that name, provided a phone number. Phone records revealed that the number was registered to Marcelo Cerasani and the records revealed an address. The agent in charge of the case never went to the address and essentially never took any further steps to verify the identification of the subject who claimed his name was Marcello Cerasani. He did call the telephone number and claimed to have recognized the voice of the person who answered the phone as the person whom he had met with at the hotel. There was a second meeting at the same hotel and the person claiming to be Marcello Cerasani was not present. At this meeting, further steps were taken by the agent to prove to the suspects that cocaine could be produced for the proper purchase price. Based on the initial meeting between Agent Bruno and the three individuals, along with the phone number, Agent Bruno prepared an affidavit and procured an arrest warrant for Marcello Cerasani. No explanation is provided in the record as to why the DuMEG agents and Officer Bruno did not execute the warrant themselves. Instead, the warrant was placed into the stream of law enforcement and eventually executed by the Chicago Police Department. Had Officer Bruno attempted to execute the warrant himself, it is unlikely Mr. Cerasani would have been detained. It is interesting to note that the spaces provided for height and weight on the arrest warrant were not filled in by Officer Bruno or the agents. The morning after his arrest, the Claimant was interviewed by two (2) DuMEG agents at the Du Page County Jail. Cerasani told one of the agents that someone else had been using his name and identifying himself as Marcello Cerasani, in addition to claiming that he was not involved in the conspiracy. This information was documented in a memorandum and signed by an agent. No follow up was done on that information. A bond hearing was held during which a bond of half a million dollars was set by a judge. Claimant, during that hearing, explained that he had been in Italy during the time frame the alleged conspiracy had taken place. While the facts differ at this stage as to whether the only agent who could identify Mr. Cerasani had contact with him, there is no dispute that Mr. Cerasani was returned to the jail at that stage. From this point on, Mr. Cerasani spent five (5) additional days in jail.

It is certainly clear that the Chicago Police Department, simply acting on an otherwise valid warrant from the Du Page County authorities, was not in a position to do anything other than arrest Mr. Cerasani. It is the conduct of the agents of the State, specifically the DuMEG agents, both before the arrest and in the six (6) day period after the arrest, which forms the basis of the claim. The agent in charge of this case attempted to verify the identity of the person whom he met in the restaurant, by simply calling a phone number and comparing the voice of the person on the phone with the voice he had heard in the restaurant, for a limited period of time. Under the circumstances, the failure to verify the identification of the man who called himself Marcello Cerasani is not justifiable. The officer made no attempts to check the imposters personal information, unlike the other suspects. That suspects in criminal investigations use phony names comes as no great shock to either this Court nor to the offices involved. Further, the absence of a description with regard to height and weight is terribly bothersome. The officer who secured the warrant should have known that he would not necessarily be the person executing the warrant. In this case, it is apparent that he intentionally did not execute this warrant, but allowed the Chicago Police to do that job. While certainly that is acceptable law enforcement behavior, in a situation of this nature where the identity of the offenders is uncertain, once the warrant is executed, the only officer capable of making an identification should have done so in a much more expeditious fashion. That officer claims it took five to six days for him to receive the paperwork regarding Mr. Cerasani’s arrest, and only at that time, when he saw Mr. Cerasani s arrest photo, did he realize that the wrong man had been arrested. He claimed to have called the State’s Attorney’s office immediately to inform them that the wrong man was in custody. There is no explanation, if one chooses to believe that officer, as to why no one from the DuMEG office informed him, immediately upon the arrest, that Mr. Cerasani was claiming to have been the wrong person and had been in Europe at the time. To wait five days under those circumstances to verify the identity of someone being held on $500,000 bond is completely unreasonable.

Mr. Cerasani had never been in any trouble with the law. It is difficult to measure the impact of an incident of this nature on an individual. We are all different, but no doubt this type of conduct by governmental authorities would have an impact on anyone. Mr. Cerasani was forced to hire an attorney who, it appears, was particularly helpful in securing his justifiable release. Mr. Cerasani was embarrassed and humiliated in front of his co-workers and his employer. Public humiliation affects a person’s self-esteem and psyche. The arrest and detention of Mr. Cerasani for six days under the circumstances was unreasonable, and also excessive. There is no evidence to justify the failure of authorities to verify the identity of the suspect in an immediate fashion, given the time delay between the date of the conspiracy and the date of the arrest. False imprisonment consists of an unlawful restraint against the will of an individual and, while false arrest is one method of committing false imprisonment, even when the arrest itself is valid and legally sustainable, an unreasonable detention following the arrest can be, in and of itself, false imprisonment. (Howard v. State (1993), 45 Ill. Ct. Cl. 214.) The contention of the State that it is not responsible, because it did not actually arrest the Claimant, is without merit. Special Agent Bruno and DuMEG represented to the circuit court of Du Page County that Marcello Cerasani was involved in an attempt to buy cocaine. This was obviously wrong. It was and is the States failure to identify the individual at the hotel meeting which makes this actionable. Even if this Court were to find that there was more than sufficient cause for an arrest warrant to be sought, the circumstances immediately after the Claimants arrest require that law enforcement verify the identity of the arrestee. After Claimants appearance in court, six hours would have been a reasonable period of time during which to identify Mr. Cerasani as the wrong person. Six days is totally inappropriate.

Therefore, the Court awards Claimant the sum of $30,000.


author: Raucci, C.J.

text:
    (No. 95-CC-0593
    George McCoppin, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 17, 2001.

    Lerner and Kirchner (Robert Kirchner, of counsel), for Claimant.
    Flynn, Palmer & Tague (Richard P. Klaus, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This cause is before the Court upon a recommendation from Commissioner Owen following an evidentiary hearing.

The Claimant, George McCoppin, Jr., filed a complaint for wrongful discharge, alleging that he was terminated from his employment with the University of Illinois in retaliation for reporting acts of misconduct and potentially criminal wrongdoing by a supervisor.

Facts

At the hearing, the Claimant testified that he was 49 years of age and that he had first been employed at the University of Illinois in October of 1981, when he was hired as a crop tester in the Department of Plant Pathology. Prior to July of 1991, Claimant had received annual evaluations that were outstanding.

Claimant testified that during 1989 and 1990 he had furnished information in an investigation about acts of misconduct by Dr. White, his supervisor in Plant Pathology. Claimant stated that on two occasions prior to July of 1991, Dr. White had made threats of harm against him and his family.

In July of 1991, Claimants position as a crop tester in Plant Pathology was eliminated and, in accordance with the civil service rules, he was able to bump a less senior employee and become a crop tester in the Department of Agronomy.

After Claimant became a crop tester in Agronomy, he had one person below him on the seniority list named Craig Anderson. Subsequently Craig Anderson’s position was restructured to crop tester specialist. In July 1993, a crop tester position in Agronomy was eliminated and Claimant was laid off.

At the time Claimant was making $13.05 an hour, which was just over $26,000 a year. Claimant received retirement, free health insurance for himself, and tuition waivers for himself and his children. After Claimant’s termination from the University of Illinois, his wife had to pay an additional $150 per month to cover him on her health insurance. In July of 1994, Claimant obtained employment with Caterpillar at the rate of $18.05 an hour and was still employed there at the time of the hearing. During the period from July of 1993 and July of 1994, Claimant did obtain employment at Central Stores at the University of Illinois for 90 days. This employment came within ten days of his being terminated as a crop tester.

Kerrin Thompson testified that she is employed by the University of Illinois in the Personnel Services Office. During the period of time from 1991 to 1993, she was an auditor job analyst, in which she reviewed positions for civil service employees, did onsite audits to determine that they were appropriately classified or took whatever action was necessary to effect the appropriate classification.

In 1992, she participated in auditing all of the Crop Testing Technician positions. At that time, the title for five employees was changed from Crop Testing Technician to Crop Testing Specialist. The State University Civil Service System approved the creation of the new classification of Crop Testing Specialist. Ms. Thompson testified that, when performing an audit, the Personnel Semees Office determines what classifications are established.

Elyne Cole testified that she is an employee of the University of Illinois in the Personnel Services Office and one of her responsibilities, during the period from 1991 to 1993, was that she was responsible for layoffs. Ms. Cole testified that there is a difference between a layoff and a discharge, in that a layoff is an elimination of a position and a discharge is action taken against a certain individual to separate that persons employment from the University.

In 1991, she was notified that the Department of Plant Pathology was planning to eliminate a position. She then analyzed the position and found out who was the very least senior employee in that classification. The Claimant’s position was going to be eliminated and he then had employment rights to bump or not bump and he elected to bump the position occupied by Kevin Williams in the Department of Agronomy. Kevin Williams took an exam for a farmer classification and was hired as a farmer in the lower paying classification.

In 1993, the position occupied by Claimant in the Department of Agronomy was eliminated and he was notified that his position was being eliminated and that he was the least senior employee in that classification and therefore did not have any bumping rights. The Claimant is still listed as a Crop Testing Technician on the register and, if that position is ever refilled, he would be the person first called up for reemployment.

Ms. Cole testified that an employee has a right under the civil service rules to challenge any action being taken against them, including determinations in respect to layoffs and bumping rights. Ms. Cole testified that the Claimant did not make any such request pursuant to the elimination of his position in 1991 nor pursuant to the layoff determination in 1993. The Department of Agronomy determined that they needed to layoff due to budgetary constraints and Personnel Services made no independent determination whether or not that was a truthful reason.

Gary Heichel testified that, from April 1, 1990 through August 20, 1995, he was head of the Department of Agronomy at the University of Illinois. During his tenure as head of the Department of Agronomy, he was in charge of the budget process for his department. Funding for a fiscal year for the Department would run from July 1 to June 30. During the period from 1990 to 1994, funding from the Illinois State Legislature was inadequate to meet the needs of the University and it was necessary for the Department to reallocate funds in the amount of $70,000 to $150,000 per year. His budget allocations are subject to approval by the Dean of the College. In 1993, it was necessary to effectuate a 4% budget reduction. This was effectuated by not filling empty positions and reallocating some positions or a portion of some positions from State funds to non-State funds or grant funds.

In fiscal year 1994, which ran from July 1, 1993, through June 30,1994, funding reductions of 2% were necessary. He made the decision to eliminate Claimants position. There were not any non-State funds available to defray the elimination of the position which was eliminated and remained eliminated as of the date of the hearing.

Dr. Heichel testified that he did not know the Claimant until the Claimant came to work for the Department of Agronomy in 1991, and that he had not met Dr. White prior to August of 1994. Dr. Heichel further testified that, prior to preparing the budget in 1993 that eliminated Claimants position, he did not have any conversation with Dr. White concerning Claimant and that he was unaware of the investigation of Dr. White.

Dr. Heichel testified that he would have discussed the elimination of the position with other members of his Department of Agronomy faculty and that one factor in eliminating Claimants position was that there were no non-State funds to replace the State funds as there were in other positions, so that the only thing they could do to eliminate the State funds that were going to that position was to eliminate the position. Dr. Heichel admitted that a number of faculty members did receive raises at this time, in some cases a very substantial amount, but also stated that some of these raises were to encourage early retirements which allowed the department to then eliminate the position.

Legal Analysis

Retaliatory Discharge

Illinois recognized a cause of action for retaliatory discharge in Kelsey v. Motorola Inc. (1978), 74 Ill. 2d 172, 23 Ill. Dec. 559, 384 N.E.2d 353.

A Claimant has a valid claim for retaliatory discharge, if Claimant was discharged in retaliation for his or her activities and the discharge violates a clear mandate of public policy. (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 116 Ill. Dec. 694, 519 N.E.2d 909.) Although many of the Illinois cases deal with workers’ compensation cases, Illinois has recognized a cause of action for retaliatory discharge, when the public policy involved reporting wrongdoing. Sherman v. Kraft (1995), 272 Ill. App. 3d 833, 209 Ill. Dec. 530, 651 N.E.2d 708; Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 52 Ill. Dec. 13, 421 N.E.2d 876.

Under the evidence presented in this case, Claimant has failed to prove a valid claim for retaliatory discharge. Claimants claim that he was discharged for reporting acts of misconduct by Dr. White is not supported by the evidence. The decision to layoff the Claimant was initiated by the head of the Department of Agronomy, who testified that he had no knowledge of Claimants allegations against Dr. White and that he did not even know Dr. White prior to mating the decision to layoff Claimant. The layoff was part of the budget process, whereby a position needed to be eliminated to meet budgetary reductions. All of the rules and regulations of the Department were followed in eliminating the position occupied by Claimant, and there was no evidence to support his allegation of retaliation.

Exhaustion of Remedies

In addition, Claimant failed to exhaust his remedies. The question of exhaustion of remedies was raised in one of the Respondents motions for summary judgment but was never addressed by this Court.

This Court in Devaney v. State (1996), 48 Ill. Ct. Cl. 461, held that the Claimant, in a case for retaliatory discharge, was first required to exhaust the remedies with the Merit Commission of the office of Secretary of State.

In the present case, Claimant could have protested his discharge through the Civil Service Rules and Regulations of the University of Illinois, but failed to do so.

It is hereby ordered that this claim is denied.


author: Epstein, J.

text:
    (No. 95-CC-0614
    R & G, Inc., Claimant, v. Illinois Department of Transportation, Respondent.

      Opinion filed July 21, 1999.

    Gates, Wise & Schlosser (Gordon W. Gates, of counsel), for Claimant.
    Jim Ryan, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   OPINION ON SECOND SUMMARY JUDGMENT MOTION

Epstein, J.

This emergency oral contract claim against the Respondents Department of Transportation (“IDOT”), now pending on the Claimants amended complaint, is back before the court on Respondents second summary judgment motion. This motion follows our two prior rulings which, inter alia, denied the first summary judgment motion without prejudice. See order of November 26, 1996; supplemental opinion of May 7,1997.

Respondents Second Summary Judgment Motion: Issues Raised

The Respondent’s renewed motion for summary judgment (filed 8-14-98), considered with the Claimant’s response thereto (filed 12-23-98), raise the following issues:

1. Was an oral contract formed between the Claimant and IDOT for Claimant to render labor and equipment services to IDOT for compensation, as Claimant contends; or was Claimant a volunteer in the 1993 flood control efforts, and no such contract was formed, as Respondent contends?

Respondent argues that undisputed facts at best show a voluntary undertaking without any IDOT commitment to pay, and a misunderstanding at worst, precluding a contract formation. Claimant says there are disputed issues of material fact that preclude summary judgment.

2. Is this oral contract claim barred by the section 9.01 of the former Illinois Purchasing Act (30 ILCS 505/9.01), as it was effective in 1993, which prohibited unwritten "State agency contracts for services involving professional or artistic skills * * * involving more than $5,000 * * *.” and by section 10 of that Act, which provided that a State agency contract “in violation of this Act * * * is void and of no effect.”?

Citing precedent of this Court and the Supreme Court, Respondent argues that the alleged oral contract in this case — or at least recovery of any amount in excess of $5,000 on such contract — is barred by this statute, which was applicable at the time. Claimant contends that this argument was already decided by our May 7, 1997, supplemental opinion, in which we rejected a virtually identical defense under section 15 of the State Comptroller Act. (15 ILCS 405/15.) Claimant also argues that section 9.01 of the former Purchasing Act is inapplicable to the alleged contract in this case on the theory that sandbag filling is not a “professional or artistic” service.

3. Is this emergency oral contract claim barred by non-compliance with the IDOT regulations governing emergency purchases (see 44 Ill. Admin. Code 685.295(c), as enabled by 44 Ill. Admin. Code 4200.60 and IDOT Order 21-2, as amended 7-1-89), which requires an IDOT emergency affidavit and a later written contract, as well as filing of an authorizing affidavit with the Auditor General?

Respondent contends that the former Purchasing Act applied to “emergency” contracts, and thus is fully applicable to this claimed contract, along with the IDOT regulations governing emergency purchases. Claimant contends that the entirety of tire authorization, pursuant to section 9.01 of the Purchasing Act, including any authority to IDOT to regulate emergency purchases of services, is not applicable to the services or contract involved in this claim.

4. Is this claim outside the jurisdiction of the Court of Claims as an implied contract or quantum meruit claim?

Respondent argues that this Court lacks jurisdiction to make an award on the equitable unjust enrichment doctrine. Claimant does not address this issue in its response.

5. Is the alleged contract too vague and uncertain to be valid and enforceable?

Respondent contends that the alleged oral contract is far too indefinite and vague to be capable of enforcement, due to its lack of specificity of duration, equipment involved, equipment rental rates, number of workers, applicability of prevailing wage rates, ability to subcontract, and other unenumerated terms. Claimant contends that this issue was decided against the Respondent in our order of November 26, 1996; and adopts its prior arguments to this Court.

Analysis: The Factual Issues

The threshold issue of whether or not an oral agreement was made is entirely a fact issue. Both parties have produced sworn testimony supporting their positions on this issue and on what appears to be a key sub-issue: whether Claimant was a volunteer or whether the parties agreed that Claimants work was to be compensated. Both positions are competently evidenced and persuasive. Absent a dispositive admission, this requires a determination by a finder of fact.

Respondent asserts a subjective “misunderstanding” between the IDOT official and Claimants personnel, and contends that the misunderstanding precludes a contract as a matter of law. The Court does not agree. We find that this record is replete with disputed facts on the misunderstanding issue as well as other contract-formation issues, which precludes summary judgment. We are also unconvinced that the mere fact that one party to a conversation had a different subjective understanding of the words used than did the listener is a per se legal defense to a “meeting of the minds” for contract formation purposes, although it may be a defense in some circumstances.

A genuine misunderstanding of what was meant by a particular statement may or may not defeat an “agreement,” depending on the particular context and circumstances. The issue of contract formation is ultimately determined by the parties’ intent as manifested by their communicated words and conduct which often take meaning from the particular context.

In this case, Respondents “misunderstanding” defense relies on an alleged difference in understanding of an IDOT statement that the Claimant “would be taken care of’ (R. Thursby Deposition No. 21, excerpted in Respondent’s memorandum of law in support of motion for summary judgment, at 6). There seems to be no dispute that the statement was made and communicated (which is not the usual oral contract dispute over who said what to whom).

Recause we find, on the current record, that the statement is somewhat ambiguous, we conclude that summary judgment must be denied. (Indeed, the statement itself is closer to justifying a finding for the Claimant than for the Respondent, but the ambiguity in the words requires us to defer our consideration for a fuller record.) The determination in this case of what was or was not reasonably and objectively communicated between the parties at the sand pit during the 1993 flood fight — and whether the parties’ words and conduct manifested an agreement — is peculiarly a determination that should be made by the trier of fact, preferably on a full record with an opportunity to ascertain the credibility of the witnesses.

Analysis: The Legal Issues

I. The Purchasing Act Issue

We need only observe, as Claimant bluntly urges, that this contract does not involve “professional or artistic skills” and is therefore not subject to the limitations of section 9.01 of the former Purchasing Act or its implementing regulations or the construing opinions cited by Respondent. This alleged contract was for sandbag filling, which simply is not a professional or artistic skill. (See, 1971 Atty. General opinion, S-256.) The sandbag-filling work in this case involved unskilled labor and the use of earthmoving equipment. The equipments use may entail some skilled labor, but falls categorically short of “professional or artistic” skills. This conclusion does not at all disparage the artistry of some operators of this kind of equipment.

In light of Claimants argument, we point out that this Purchasing Act argument, which today we reject as inapplicable to this case, is not the same as the argument under section 15 of the Comptroller Act that we rejected as a matter of law in our previous supplemental opinion. Although both arguments involve statutory requirements for written documentation and filings in State offices, they arise from different statutes. Those statutes, in turn, prescribe significantly different legal consequences for their respective violation. Most significant, of course, is section 10 of the former Purchasing Act which voids an otherwise valid State contract that violates that Act; the Comptroller Act contains no such provision. That makes sense in light of the different underlying purposes of the two statutes, but in any event mandates different results.

II. The IDOT “Emergency” Regulations Issue

Respondents argument that this emergency contract claim is barred by IDOTs failure to comply with its own “emergency purchase” regulations (i.e., its failure to file an affidavit with the Auditor General setting forth the emergency conditions that prompted IDOT not to competitively bid the contract, and a subsequent written contract) is a troubling argument.

As we said in connection with the section 15 of the Comptroller Act argument, this Court will not allow the State to unilaterally exculpate itself from an otherwise valid contractual obligation by its failure to comply with an internal State administrative requirement, unless a statute clearly compels that result. Otherwise, the agency by administrative neglect or capriciousness could defeat legitimate rights to payment. That would countenance a fraud in some cases.

The record in this case reflects that IDOT has taken the position from the outset that no contract was formed with this Claimant. Given their view that there was no contract, IDOT staffers in perfect good faith would never comply with IDOT’s emergency contract regulations. Thus, if the legal opinion of the IDOT staffers were later to turn out to be wrong — as this Court might eventually decide in this case — the Claimant could still never win under Respondent’s theory. IDOT’s earlier staff opinion (implemented by their failure to do the regulatory paperwork) would always prevail over the contractor’s legal rights. Bureaucratic supremacy would trump the contractor’s right to be paid by the State forever, and would trump this Court’s jurisdiction to decide whether or not the contractor had any rights.

In this case, IDOT takes this argument one step further by asserting the right to create the right of unilateral abrogation of emergency contracts by its administrative rulemaking power. We presume, of course, that the IDOT regulation is valid and binding. But absent a statutory abrogation of an otherwise valid emergency contract due to the agency’s failure to comply with its own regulations, this Court will not void the contract for that reason. In this case, the Respondent does not assert a statutory invalidation of the alleged oral sandbagging contract. Respondent instead relies solely on the regulation, which is not enough. We will deny the motion on this point without prejudice; if Respondent can show a statutory mandate to invalidate the alleged contract due to IDOT’s failure to comply with the cited regulations, the Court will reconsider the issue in that light.

III. Quantum Meruit

Respondents contention that this Court lacks jurisdiction to award a quantum meruit claim is correct under the terms of section 8 of the Court of Claims Act (705 ILCS 505/8), as this Court has held too many times to require citation or discussion. However, the amended complaint does not assert a quantum meruit claim. This argument is therefore moot.

IV. Vagueness and Enforceability

Respondent is correct that this Court previously ruled on this point, albeit solely as a pleading matter, without prejudice and subject to the proofs. (See order of November 26,1996.) We find nothing in the Respondents summary judgment motion that leads us to reconsider this issue at this stage of this case, and we do not find the authorities cited by Respondent to require or even to support a dismissal at this stage on this record. However, the Court will again leave this issue open for reargument later on a fuller record.

Order

For the foregoing reasons, it is now ordered:

1. Respondents motion for summary judgment on the issue of formation of the alleged oral contract is denied; there are disputed questions of material fact;
2. Respondents motion for summary judgment on the basis of section 9.01 of the former Illinois Purchasing Act (30 ILCS 505/9.01) is denied with prejudice;
3. Respondents motion for summary judgment on the basis of noncompliance with 44 Ill. Admin. Code 685.295(c) and IDOT Order No. 21-2, as amended 7-1-89, is denied without prejudice;
4. Respondent’s motion for summary judgment against a quantum meruit claim for want of subject matter jurisdiction is denied as moot;
5. Respondent’s motion for summary judgment for vagueness and consequent unenforceability of the alleged oral contract is denied without prejudice;
6. This case is remanded to the assigned Commissioner for trial on the merits.


author: Hess, J.

text:
    (No. 95-CC-1326
    Stephanie Cadena, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 31, 2000.

    Lerner & Kirchner (Robert G. Kirchner, of counsel), for Claimant.
    Flynn, Palmer & Tague (Richard Klaus, of counsel), for Respondent.
   ORDER

Hess, J.

This matter is before the Court on Commissioners recommendation filed after the Commissioner conducted a hearing. The Court being fully advised in the premises states as follows:

Claimant was struck in the mouth by a hockey puck while attending a hockey game at the ice rink located on the campus of the University of Illinois. From the evidence presented at the hearing, it appears that a player advancing down the ice took a slap shot. The opposing goalie left the goal area to defend against this player and, in attempting to stop the puck, he extended his stick. The stick used by the goalie in a hockey game is substantially different than other sticks in that it is wider. Recause of the angle in which this goalie used his stick to block the puck, it acted like a ramp and sent the puck flying out of the rink. The Respondent presented the testimony of Greg Swanson, the manager of the facility. Mr. Swanson testified that he observed the entire incident and that it appeared that the Claimant was talking to a friend and not paying attention to the action of the rink. Furthermore, the puck left the ice and flew over the protective barrier and struck the wall behind Claimant, ricocheted off the wall and hit Claimant. Claimant presented pictures of portions of the protective wall, which was broken. Mr. Swanson testified that these pictures were of different portions of the rink than where Claimant was sitting. Mr. Swanson further testified that the protective wall where Claimant was sitting was fully intact.

Claimant apparently wishes this Court to disregard the testimony of Mr. Swanson, because he traveled from Chicago to Urbana for the hearing without remuneration. Claimant apparently thinks that any witness, who willingly testifies without payment from a party, is a tainted witness whose testimony should be disregarded. The Court finds absolutely no basis in Claimants contention and, to the contrary, finds Mr. Swansons willingness to testify refreshing. The Commissioner did not detect any bias in Mr. Swansons testimony and the Court could find none in the transcript. This unfounded attack on Mr. Swansons motivations and credibility has amounted to nothing. The substance of Mr. Swansons testimony remains.

Claimants allegations are presented on a theory of negligence. A successful negligence case must establish the following: that the State was negligent, that the negligence was the proximate cause of the damages and that the Claimant was not contributorily negligent. The burden for this evidence rests on the Claimant and must be shown by a preponderance of the evidence. (Hoekstra v. State (1984), 38 Ill. Ct. Cl. 156.) Spectators of hockey games are owed a duty of ordinary care. Riley v. Chicago Cougar Hockey Club, Inc. (1981), 100 Ill. App. 3d 664, 427 N.E.2d 290.

Claimant has failed to reach her burden showing that the State has breached the duty it owed Claimant. There was a protective barrier installed at the stadium. The evidence has shown that the Claimant was not paying attention during the hockey game, and this inattentiveness contributed to her injury. This Court has repeatedly held that the State is not an insurer of individuals on its facilities. See Hoekstra, supra.

Accordingly, Claimants claim is dismissed.


text:
    (No. 95-CC-3031
    Bob Haney d/b/a Haney Farm Center, Claimant, v. Illinois Development Finance Authority, Respondent.

      Opinion filed October 21, 1998.

    Eddie J. Minton, for Claimant.
    Laura Grandy and T. Bradford Waltrip, for Respondent.
   ORDER ON MOTIONS

Epstein, J.

This case arises out of an aborted loan/equipment lease from the Respondent, Illinois Development Finance Authority (“IDFA”), to the Claimant, Bob Haney (“Haney”), and is pending on Claimants two-count complaint, which asserts breach of contract (Count I) and breach of fiduciary duty (Count II) claims seeking $500,900 in damages.

The Pending Motions

This case now comes before the Court on a flurry of motions and the response or objection to each of these motions by the other party:

(1) Respondent’s “Motion for Judgment on the Pleadings or [alternatively] * * * for Partial Summary Judgment” (the “motion for judgment”);
(2) Claimant’s “Motion for Finding * * * that * * * §18 of * * # ‘Equipment Lease’ was Unconscionable * * * pursuant to §5/2A — 108(1) of the Uniform Commercial Code e * *; or * * 5 to Present Evidence as to the Setting, Purpose, and Effect of the Lease Contract * * * pursuant to §5/2A — 108(3) « * “unconscionability motion”);
(3) Claimant’s “Motion to Amend Complaint,” which seeks leave to file an amended 3-count complaint asserting two breach of contract actions (Counts I and II), and a breach of fiduciary duties action (Count III) (the “motion to amend”); and
(4) Respondents “Motion for Stay of Ruling on # * [the Motion to Amend] # * until Court Rules on the * * * Motion for Judgment # (“Motion to Stay Ruling”).

Discussion

The Respondent’s motion for judgment asserts a failure of Counts I (breach of lease agreement) and II (breach of fiduciary duty) to state causes of action, and asserts section 2 of the Credit Agreements Act (the “CAA”) (815 ILCS 160/2) as a bar to the Count I claim, based on the failure of the alleged contract to comply with the two-signature requirement of section 2 of the CAA; to which the Claimant replies that the CAA is inapplicable to the lease alleged in Count I.

The Claimant opposes the motion, but also moved for leave to file an amended complaint that appears to re-plead the original Counts I and II as amended Counts I and III and that would add a new Count II, which is a different contract claim than Count I. Ordinarily under our liberal pleading practice, we would grant such leave at this juncture, thus mooting the original complaint and motion and recommencing with the new pleading. However, because it appears that Claimant is standing on the actions asserted in Counts I and II, and that the issues raised by the motion for judgment would apply equally or similarly to amended Counts I and III, we will entertain the motion for judgment along with the motion to amend in an effort to avoid circuity.

Count I — Breach of Lease or of Contract to Make a Lease

Count I is a breach of contract action, based on a “lease agreement” which is alleged to be or to be embodied in an IDFA staff memorandum (on the Claimants request for commercial lease/financing) that the IDFA Board approved on October 20, 1993. (Complaint, Count I, par. 5; amended complaint, Count I, pars. 15, 16, 20.) Essentially, Claimant alleges that the agreement was for the Respondent IDFA to purchase certain identified equipment for $74,000 and to lease it to Claimant for five years on agreed financial terms; and that Respondent breached the agreement by failing to purchase the equipment — or by failing to timely order and purchase the equipment “during the time period in which [it] # * cost $74,000” (Complaint, par. 29) — and then failing to lease it to Claimant, thus wrongfully aborting the transaction.

Respondent points out the admitted fact that the parties did execute a written lease among the “financing documents” that were executed in April, 1994, approximately six months after the October, 1993 IDEA Board approval on which Claimant relies. Respondent insists, inter alia, that the October 1993 Board action was not itself a lease, and that if it were a contract, it is a “credit agreement” within the meaning of the Credit Agreements Act (the “C.A.A.”) and that Claimants action based on it is barred because the October, 1993 board action, including the approved memorandum, were not signed by both parties as required by section 2 of the C.A.A.

Claimant replies with the vehement but unexplained and unprecedented contention that the arrangement was a commercial lease that is governed by section 2A — 201 of the Uniform Commercial Code (the “U.C.C.”) (810 ILCS 5/2A — 201) instead of the C.A.A.; i.e., that the C.A.A. cannot apply to a lease.

Initially we must reject the Claimants statutory argument and its characterization of the October 1993 IDEA Board approval. A commercial lease may be subject to both the U.C.C. and the C.A.A. under appropriate circumstances; these are not either/or statutes nor do they apply to mutually exclusive categories. Equally plainly, the IDEA board approval was not itself a lease, as Claimant urges. If that approval was an enforceable commitment at all, which we assume arguendo (as that is unchallenged), it is clear that at best the agreement at that point was an agreement to enter into a lease, rather than a lease itself.

It is also clear that the purpose and function of the contemplated “commercial lease” was to provide financing assistance (i.e., “credit”) to the Claimant. Indeed, this is not disputed. Financing was the primary purpose of this transaction. The lease was proposed by Claimant in order to obtain financing for his acquisition of certain equipment to expand his business; the credit was to be effectuated by the financial terms of the equipment lease. We do not find it terribly relevant, despite the Respondents emphasis, that it was the Claimant who first proposed the “equipment lease” structure for the transaction. But Claimants reliance on the technical lease form of the transaction is fundamentally erroneous, in light of the governing statutory language (section 12 of the C.A.A.), which defines a “credit agreement” as follows:

‘“Credit agreement’ means an agreement or commitment by a creditor to lend money or extend credit or delay or forbear repayment of money not primarily for personal, family or household purposes, and not in connection with * * * credit cards.” 815 ILCS 160/1(2).

The credit-extension purpose and function of this transaction bring it under the C.A.A. definition of a “credit agreement,” irrespective of the lease form of the transaction. Thus, we are constrained to hold that the alleged “agreement” or “commitment” of the IDFA to enter into this credit-extending commercial lease is subject to the C.A.A. (We presume, and nobody has argued otherwise, that the IDFA is an “entity” within section 1(4) of the C.A.A. and that it is “engaged in the business of lending money or extending credit” within section 1(2) of the C.A.A.

The requirement of section 2 of the C.A.A., which is a kind of super statute of frauds for credit agreements, are as follows:

“Sec. 2. Credit agreements to be in writing. A debtor may not maintain an action on or in any way related to a credit agreement unless the credit agreement is in writing, expresses an agreement or commitment to lend money or extend credit or delay or forbear repayment of money, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” (Emphasis added.) 815 ILCS 160/2.

The contract or commitment alleged in Count I is not signed by both parties; hence Claimant is barred from maintaining a claim upon it. Count I must therefore be dismissed with prejudice. Because Count I of the proposed amended complaint is also based on the same unexecuted arrangement for the lease/financing, and would also be barred by section 2 of the C.A.A., we will not grant leave to file Count I of the amended complaint.

Count II

In Count II, Claimant asserts a breach of fiduciary duty. The asserted fiduciary duty to the Claimant is predicated on the duties and purposes assigned to the IDFA by its enabling statute, the Illinois Development Finance Authority Act (20 ILCS 3505/1 et seq.). (See also Complaint, Count III, pars. 64, 65.) Similarly, the proposed amended complaint, inter alia, reasserts this statutory basis of the fiduciary duty. (See proposed Amended Complaint, Count III, par. 117.) Count II alleges that this fiduciary duty was breached in that the IDFA (See Complaint, par. 67):

“failed to carry out [its legislative] mandate * 0 * but * * * created economic hardships for those whom it was created to help, * * * for the Claimant and for the economic welfare of * * * [his] community.”

We observe that Count III of the proposed amended complaint, which is the amended version of the pending Count II of the complaint, is less specific in pleading the alleged breach. See proposed amended complaint, Count III, pars. 120-121.

Respondent argues that the legislative findings and declarations of policy in the IDFA Act, particularly section 2 (20 ILCS 3505/2) does not create a fiduciary duty on IDFA as a matter of law, although it cites no case law authority for the point.

Claimant replies, also without precedential authority, that (1) the statute imposes on the IDFA a "responsibility to help create a favorable climate for new and improved job opportunities for its citizens by encouraging the development of s * * businesses 8 * * within labor surplus areas of the state”; and (2) that a fiduciary duty also arose due to the “trust and confidence” reposed in IDFA by the Claimant in this case.

Our first task is to characterize the fiduciary claim of the pending complaint, which is less than precisely pleaded and, unsurprisingly, is opposed categorically. For two reasons, we take the fiduciary duty claim to assert a general fiduciary duty to the citizens of Illinois, or at least to the citizenry of “labor surplus areas” of the State.

First, the Claimants pleading asserts a broad general duty, rather than a specific duty to IDFA applicants or to “approved” applicants or some narrower class. Although the Count II allegations incorporate by reference tire earlier allegations about the IDFA boards approval of Claimants financing/lease application, we do not read the claimed fiduciary duty to be predicated on the alleged board “approval” or on the alleged IDFA “contract” or “commitment” to this particular lease transaction, as is alleged in Count I.

Second, even if Claimant was merely unclear in his pleading, we conclude that the theory of an actionable “fiduciary duty” arising from IDFA’s alleged financing commitment/contract is also barred by section 2 of the C.A.A., which bars “an action on or in any way related to a credit agreement” that is not fully executed. This statutory bar applies to “an action.” It is not limited to contract actions; the statutory language must encompass a claim based on a fiduciary duty that arises out of a “credit agreement.” Of course, if there is an independent alternative source for the fiduciary duty, the C.A.A. may be immaterial. Moreover, if a Claimant could sidestep the bar of the statute by characterizing a contract claim as a fiduciary duty claim — i.e., by asserting fiduciary duties as well as mere contract duties arising out of a contract — Claimants could evade the C.A.A. in most if not all financing cases, which would largely eviscerate the statute.

Thus we are left to consider the plain, generalized meaning of Claimants asserted fiduciary duty, which he finds in the statutory findings and policies of the IDFA Act. This Court cannot find a “fiduciary duty” to citizens generally or to citizens of qualified areas or to anyone else in this statute. Moreover, and more to the point (although neither party has argued it), we cannot find any legislative intent nor any basis in the statutory language for the implication of a statutory private right of action for violations of the IDFA Act, which is what Claimants Count II-action ultimately purports to be insofar as it relies on the IDFA. See Farrell v. State (1997), 52 Ill. Ct. Cl. 275 and cases cited therein.

This brings us to Claimant’s last effort to salvage a breach of fiduciary duty claim in this case, when he argues a fiduciary relationship in fact, based on his trust and confidence in the IDFA. There are three immediately apparent problems with this theory as now advanced: First, it is not pleaded in Count II of the complaint, and thus is not properly before us. Second, although it is pleaded in Count III of the proposed amended complaint, it is pleaded there in a purely conclusory form without any underlying factual allegations on which a “trust and confidence” conclusion might be based, which is inadequate. Third, because any claim of “trust and confidence” cannot be predicated to arise out of or to be “in any way related to” (C.A.A., section 2) a contract or commitment by the IDFA to finance the Claimant (unless a fully executed one is alleged), there is no factual basis alleged in either pleading for a fiduciary relationship.

However, the Court cannot say that it is impossible to plead such a fact-based fiduciary relationship, particularly in light of the allegations that the IDFA’s own regulations imposed a six-month limit on the consummation of this lease/financing and that the IDFA engaged in willful and fraudulent delay. Accordingly, we will dismiss Count II without prejudice; but will not allow the filing of the proposed amended Count III which does not appear to cure the defects in the original Count II; and we will allow the Claimant, if he elects, to file another amended count III in yet another pleading to attempt to state an action on the theory of a fiduciary duty arising on the basis of the parties’ factual relationship.

The Proposed Amended Complaint

For the foregoing reasons, the Court will not allow the filing of Counts I and III of the proposed amended complaint. However, there is no objection to the proposed amended Count II (breach of contract based on the executed lease agreement), which we will allow in substance but, in order to avoid confusion, not in form. We will grant the Claimant leave to file a second amended complaint, which may include the proposed amended Count II (contract based on executed lease) and an amended Count III (breach of fiduciary duty) consistent with this order.

The Unconscionability Issue

Because of the imminent repleading, it is premature to entertain Claimant’s unconscionability motion on its merits at this point. However, it must be noted that Claimant has now failed to set forth any factual basis for his conclusion of unconscionability of the provisions of section 18 (“Indemnity”) of the IDFA-Claimant “Equipment Lease Agreement” (the limitation on “consequential or incidental damages”). Absent some allegations that properly raise the issue of unconscionability, the court must deny the motion in its entirety. We will deny the motion without prejudice, to permit the issue to be raised in the second amended complaint, which is where such an issue is best raised, or by later motion.

Because the section 18 contract issues are so clearly critical to this claim and must eventually be considered if these claims are repleaded, the Court notes, in passing, its observation that the text of section 18 of the Equipment Lease Agreement is ambiguous on its face in more than one respect. Both parties should address this provision carefully in their future pleadings.

Order

For the foregoing reasons, it is now ordered:

1. Respondents motion for judgment with respect to Count I of the original complaint is granted; and Count I is dismissed with prejudice;
2. The IDFAs motion for judgment with respect to Count II of the original complaint is granted; and Count II is dismissed without prejudice;
3. Claimant’s motion to amend is denied with respect to Count I and Count III, and is granted with respect to Count II, subject to paragraph 4 of this order;
4. Claimant is granted leave to file Count II of the amended complaint (breach of contract based on the executed Equipment Lease) and an amended Count III (breach of fiduciary duty) as a second amended complaint within 35 days after this order is entered;
5. Claimant’s unconsciónability motion is denied without prejudice to raise in the amended pleadings and/or to renew by later motion.


text:
    (No. 95-CC-3948
    Helen Lundy and Jack Barnes, Claimants, v. Illinois Department of Transportation, Respondent.

      Opinion filed March 26, 2001.

    Heller, Holmes & Associates, P.C. (David Stevens, of counsel), for Claimants.
    Jim Ryan, Attorney General (Phillip McQuillam, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This is a swale case. This contract claim against the Respondent’s Department of Transportation (“IDOT”) for improper excavation/construction of an agreed swale is before us for final decision after trial to Commissioner James E. Shadid. We have the case on the pleadings, the trial record, which includes extensive technical testimony and exhibits, the report of the Commissioner and the parties’ post-trial briefs. Although the Respondent’s post-trial brief was unconscionably late, and was filed without leave of court, we allow the Respondent’s brief in the interest of assisting the Court through this large complex record, which we have reviewed in detail.

Nature of the Claim

This claim is brought as a breach of contract action. Claimant seeks contract damages for injury or loss of farming use of a portion of an 80-acre tract of farmland owned by Claimant Helen Lundy, and actively farmed by her tenant farmer, Claimant Jack Barnes, in Douglas County. (The subject property lies approximately one-half mile south of Areola, Illinois.) Claimants allege that IDOT breached — by improper performance — a written contract between Lundy and IDOT that provided for IDOT to excavate and regrade a portion of the Lundy land to improve and/or restore drainage for the adjacent State highway (Route 45) and, seemingly and perhaps incidentally, for the adjacent land area as well.

Claimant alleged that IDOT breached the specific terms of a letter agreement between Lundy and IDOT, dated December 11, 1991 (Complaint, Exhibit A) (executed by Lundy on January 8, 1992), that provided for IDOT to cut and restore a swale through the Lundy property for drainage purposes in accordance with a specific agreed plan that was reduced to drawings — particularly a “typical cross-section” of the proposed swale with specific dimensions — based on a current survey of the property. A second IDOT letter, dated March 31, 1992, and accepted by Lundy’s letter to IDOT of April 2, 1992 (Exhibit No. 17) modified the terms of the agreed excavation project somewhat.

Claimants alleged that IDOT’s excavation work, which was done in the Fall of 1992 and the Spring of 1993, and the resulting swale on the Lundy land, did not conform to the agreed specifications and resulted in the loss — i.e., the loss of its use for farming — of more than four acres of the Lundy farmland and the consequent loss of farm income to Claimant Barnes.

Claimants also complain, inter alia, that the resulting swale “is so deep that it has effectively split the farm into two halves so that farm equipment, machinery and vehicles cannot cross [the swale]” (Complaint, par. 7, 8), which Claimants maintain is contrary to representations that were made by IDOT officials to Claimant Barnes during the discussions of the swale project with Mrs. Lundy’s attorney. Claimants also complain that the swale causes water “to flow onto the farm and to remain standing rather than draining away, causing a permanent bog” (Complaint, par. 8), thus reducing usable farm acreage. Finally, Claimants assert some oral agreements and representations as to the process of the IDOT excavation work, including the giving of notice to Mr. Barnes and an opportunity for him to be present during the work, doing the work only when the ground was dry, and disposing of the excavation debris by distribution on the remainder of the Lundy land.

Claimants seek $100,000 compensatory damages, which they do not allocate between themselves in their complaint.

Nature of the Defense

IDOT has defended this claim on the bases: (1) that it did not breach, or did not materially breach, the agreement as to the specified dimensions of the swale; (2) that the “representations” allegedly made to the Claimants were not part of any of the letter agreements between the parties and are not actionable in this contract case, as they were not pleaded; (3) that Claimant Jack Barnes is not a party to the Lundy-IDOT agreements and cannot claim contract rights or contractual inducement by IDOT “misrepresentations”; (4) that IDOT did not agree or represent to Mrs. Lundy that farm operations would be unaffected and unreduced by the swale, and (5) that it was clear and was understood that part of the swale project was to restore a prior drainage swale through the Lundy lands that had silted up due to silt deposits carried by water flow to obstruction(s) located on the Lundy land, as well as from farming activities above and below obstruction^) on the property, and that Mrs. Lundy and Mr. Barnes knew or should have known that removal of the siltage would reduce the farmable acreage that Mr. Barnes had been farming on the siltage built up in the prior swale area.

The Trial Record

Claimant Barnes was the sole occurrence witness for the Claimants, who also presented one expert witness, John C. Guillou, an engineer. Respondent presented the testimony of Jerry Wilhoit, a field maintenance official of IDOT, Kevin Knoepfel, a bridge and hydraulic engineer, Leon Gobel, also of IDOT, who was Respondents sole occurrence witness, and Jack Barnes as an adverse witness.

The parties introduced numerous exhibits, relating to the parties’ negotiations and agreements, relating to the engineering and construction of the swale, and relating to the drainage characteristics of the Lundy property and adjacent areas.

The Evidence

We summarize the evidence by adopting the trial summary report of our Commissioner, here excerpted:

“The contract, when finally approved, was by way of letter of December 11,1991 and March 31,1992 from the Illinois Department of Transportation to Mrs. Lundy. A survey had been completed that time and decisions had been made based upon the survey. The drawing showed a proposed typical cross-section of a swale with a 70-foot tip width and 10-foot bottom width, 10:1 side slope and a 3-foot nominal depth. Ms. Lundy accepted IDOT’s by sending a letter in return on April 2,1992. (Exhibit 17.)
Exhibit 18 was one last IDOT memo to the file, dated April 2, 1992. It memorialized a meeting between Gobel, Mrs. Lundy, Mr. Barnes, and Bum-pus (Exhibit 18). Mr. Barnes made certain requests which are noted in the memo, including that he be notified prior to the start of any work at his specific telephone number. It was after this meeting, and obtaining IDOT’s agreement to Mr. Barnes’ request, that Mrs. Lundy signed and returned the proposal letter. (Exhibit 18.)”

The actual excavation began in the Fall of 1992 and was completed in the Spring of 1993.

During this trial, there was often complicated and complex testimony about waterflow through the property and location of field tiles as well as siltation buildup.

Plaintiffs expert, John C. Guillou, testified that he was an engineer with degrees from the University of Southern California and University of Illinois. Exhibit 22 was a copy of his curriculum vitae. In preparation for his testimony, Guillou had reviewed various documents and physically visited the land in question on August 4, 1995, September 12, 1995, December 1, 1995, December 30, 1995 (actually 1996; T. 121), and January 21, 1998. Group Exhibit 30 is a series of 25 photographs he took on September 12,1995.

Exhibit 33 is a drawing showing the results of survey work done on the site by Guillou on December 30, 1996. As shown by solid line, its the cross-section of the swale that he understood to have been agreed to by Mrs. Lundy and shown by a dash line is the actual cross-section of the ditch as he measured it on December 30, 1996. The cross-section that was seen on the date of the survey was slightly in excess of the cross-section that was agreed to by Mrs. Lundy. The drawings indicate excess top work, bottom width and depth and both locations.

He testified that it was his opinion to a reasonable degree of scientific certainty that the completed work by IDOT did not correspond to the agreement (T. 126-27). He said that he reached that conclusion because the top widths were less than those measured and the depths were greater than those set forth in the document. He was unable to make a determination regarding the bottom width because of the erosion that had taken place. It was his opinion to a reasonable degree of scientific certainty that the erosion that had occurred was from adjacent fields into the waterway. It was Mr. Guillou’s opinion to a reasonable scientific certainty that Mrs. Lundy and Mr. Barnes had been damaged by the work that had been done because the bottom of the ditch will probably always be too wet to work. He testified that, in much of the area, it would not even be possible to cross the ditch on foot without sinking into the mud. (T. 130.)

For the Respondent, Jerry Wilhoit testified; he is in field maintenance and for 12 years has maintained roadways. He testified that on the Lundy job, the maintenance force that excavated the ditch was present most of the time, meaning once or twice per week. He further testified that the State did provide advance notice by informing Mr. Jerry Stout, who is believed to be Mrs. Lundy’s attorney. The Claimant raises a number of issues about whether Mr. Stout was in fact the attorney or not, but those seem to be matters that should have been resolved between Mrs. Lundy and Mr. Stout. He testified that the State told Mr. Stout, at the end of March of 1993, and was in contact with Mr. Stout a couple of times to tell him the process and to find out what kind of slopes from Mrs. Lundy were to be approved. He testified that the final word came from Stout just prior to doing the work.

He further testified that they located field tile and, during construction, located other tile until the swale was complete and then relocated them under the swale and hooked them into the main tile. He testified all field tile was intact at the conclusion of the work. He testified that the swale was then spread over an adjacent field with small endloaders and roadgraders and that hazardous materials and asphalt were removed by excavation. The job was completed May 25, 1993 and it was his testimony that their work did not interfere with the farming operation. It was his opinion at the conclusion of the project that the excavated ground, according to the agreement, was within a couple of inches off the proposed grade.

Kevin Knoepfel also testified for the Respondent. He testified that he is a bridge and hydraulic engineer. He testified that the final bottom of the swale was within 2-3 inches of proposed. He testified that the swale was excavated according to the plan submitted to Mrs. Lundy and further testified that whenever you are working with dirt, if you can get within 1-3 inches over 1800 to 2000 feet, then that would be considered very close. He testified that it was more than adequate for drainage purposes. He testified that it couldn’t maintain flow if the width of the top was 70 feet all the way through, and that the most important area is the bottom because that is what keeps the flow line moving. He testified that for the purpose of drainage, you must establish the bottom first, then put in the slope of 10:1 as the landowner wanted. He did say that the top width average was wider than 70 feet and this results in more area taken out than originally proposed.

Also testifying for the Respondent was Leon Gobel, who is also an employee of the State. Gobel testified as to the history of the land and conversations with the parties. He testified about claimant Barnes asking questions about crossing the swale on farm machinery and also asked Gobel about farming across the swale. Gobel testified that IDOT assured him he could cross the swale with farm equipment, but qualified that the previous tenants farming practice contributed to this problem. He testified the purpose of this project was because the State observed flooding problems from 1984 to 1991 and their goal was to reestablish drainage as previously existed from the USGS map and original survey. He testified that in their initial letter to Mrs. Lundy, he asked for permission for survey with a proposed swale of 56 feet. He testified that it was Mrs. Lundy’s wishes that the swale be 70 feet.

Jack Barnes was called last as an adverse witness by the State and testified that the decision to opt for a 10:1 ratio was because the intention was to farm across and to have a flatter swale. He testified that he does not recall anyone from IDOT calling him prior to the work and was not told he could farm the swale, but then later said he could only drive across. He reiterated that he hasn’t been able to farm the swale since 1973 and further testified that he can’t drive across the swale.

Liability — Breach of Contract

The liability issues presented are easily resolved. We find that IDOT did breach the terms of the IDOT-Lundy agreement insofar as IDOT’s performance — the excavation and regrading of the swale — failed to comport with the parties’ agreed design in two material respects: the width of the swale top, and thus the total amount of land area used for the swale, and the depth of the swale which was deeper than planned.

However, we must reject Mrs. Lundy’s and Mr. Barnes’ claims based on the alleged “representations” that were supposedly made to the Claimants as to famiability of the swale area and transportability across the regraded swale. These charges are neither convincingly established nor is the Court even close to being persuaded that such representations, if they were made as such, were either inducing factors or could credibly or reasonably be relied upon. Moreover, any representations made to Mr. Barnes are immaterial, as he was neither a party to the agreement nor was his approval or consent required for the swale project, at least as shown in this record.

A thorough review of this record, particularly the topographical, drainage, and photographic evidence convinces this Court that it was sufficiently clear and must have been understood by Mrs. Lundy and Mr. Bames as well, as longtime residents and farmers in this area, that the swale project was intended to, and would, restore a prior drainage swale that had existed through the Lundy lands and that had provided drainage for that and upstream farmlands. That was simply not a secret or an ancient unknown condition of the land. They knew, or must be deemed to have known, that the longstanding drainage way — the preexisting ditch or swale — had silted up due to silt deposits carried by water flow to obstmction(s) on the Lundy land as well as due to siltage resulting from farming activities and obstmction(s) on the Lundy property, and must eventually be restored to permit at least adequate flowage.

The parties plainly understood that IDOTs cleaning out the swale/drainage would benefit both the Lundy property and the State’s roadway, as well as the upstream drainage areas, by improving the water flow across these lands. What we do not know from this record are the proportions of the drainage benefits realized by the Lundy property, the State roadway, and other properties — and it is likely that IDOT or Mrs. Lundy or anyone else knew that, which is probably the reason that the Respondent, through IDOT, proceeded by way of contract rather than by way of drainage law to improve the drainage for Route 45. In any event, this Court is bound to treat this claim as a contract claim despite the obvious and strong overlay of drainage and drainage law considerations.

Our findings lead to liability for breach of the IDOT-Lundy agreement — but only in favor of Mrs. Lundy, the sole party to the contract with IDOT.

We must reject any contract liability to Mr. Barnes, as he was not a party to the contract, nor was he a third-party beneficiary of that contract, which contains no indication that the agreement was intended to be for his benefit. Ironically, the evidence shows that the proposed swale (and hence the agreement to construct it) was contrary to Mr. Barnes’ interests as tenant farmer as it necessarily would reduce the farmable area available to him, of which he complains strongly. We observe that much evidence — particularly damages evidence — was admitted on the basis of Barnes’ presence as a party, and that if Mr. Barnes had been dismissed on a pre-trial motion, that evidence would seemingly have been excluded as irrelevant.

Damages

The damages issues in this case are the harder part, and have absorbed a disproportionate amount of time and consideration of this Court. Most of the damages evidence pertains to the claimed economic damages of Mr. Barnes, the tenant farmer, whom we are dismissing as lacking standing to claim contract damages, and is thus immaterial.

We are left to determine the loss to Mrs. Lundy, which is her claimed loss of value of her land caused by IDOT’s malfeasance of excavation and grading. Her claimed damages to her land has three components that warrant consideration: (1) loss of farmable land area, due to the over-breadth of the swale, particularly at the top; (2) loss of farmable land at the bottom of the swale, due to persistent wetness and excessive depth beyond the agreed design; and (3) inability of farm equipment to traverse the swale, thus allegedly dividing the farmland into two distinct parcels for farming operations. (This last damages claim was advanced primarily in Mr. Barnes’ claim of increased farming costs, but it plainly was urged on Mrs. Lundy’s behalf as well, albeit indirectly.)

We cannot find established damages in the second and third claimed damages elements. The inability to farm the bottom of the swale derives primarily from the fact that it remains wet due to its performance of the drainage mission for which it was recreated. That was necessarily foreseeable, even obvious, and hence must be taken as agreed by the parties absent contract language to the contrary, of which this contract contains none. Moreover, this Court is loathe to find damages for loss of “farmable” land that was previously — and undisputedly, to some extent— drainage area that has not been shown to have been simultaneously usable for drainage and growing crops in the past. Absent proof, we will not presume drainage areas to have legitimately been farmable land, especially in light of the legal drainage burden on downstream lands.

The equipment traversing problem has not been shown to be a factor that reduces the value of the land. Moreover, the Court will take notice that both permanent and temporary (seasonal) bridging technologies exist that could readily provide cross-swale access for farm equipment at nominal costs. There is no evidence in this record that the land has depreciated due to the marginal costs of providing access across the swale at critical points.

This leaves the issue of the unagreed loss of farm-able land due to I DOT’s excessive deployment of the swale beyond the agreed design on Mrs. Lundy’s property. After much consideration, we have concluded that Claimant’s arguments, while imperfect, provide the basis for calculating the amount of land taken out of farming use at tire overly-widened top of the swale. From Claimant’s calculations, we find that the average width of the swale top is 113 feet, instead of the agreed 70 feet (see Brief of Claimants, at 54-54), which is an excessive 43.2 feet aggregate average width in excess of the design width. This computes to 2.89 acres of total area removed from farming production and dedicated to drainage contrary to the parties’ agreement.

We thus find Mrs. Lundy’s property has been damaged to this extent. The assignment of a pecuniary damages amount to this land use loss is not a straightforward exercise on this record, as we are not favored with the kind of competent expert appraisal evidence, or even comparable land value evidence, that a property damage claim warrants, and usually receives, in contested litigation.

This record contains one piece of evidence of farmland value, at $4,500 per acre (of tillable land, we presume) (see, R. Tr.202), which is effectively uncontradicted and undisputed. Although the court senses that that is a high figure, we are constrained to use it in the absence of other contrary evidence. However, we take that to be the value of an acre, i.e., to the full rights and benefits of an acre of land. Although Mrs. Lundy has lost the farming use of the 2.89 acres, she has not lost fee ownership of them nor their possession for some other use. We cannot say that the damages are the entire value of the unfarmable land, although we think it apparent that such use is the traditional and most valuable use in that area.

In the absence of expert testimony of the residual value of the land, the Court is left to assign a residual value and award the remaining loss as damages to Mrs. Lundy. After review, we find that a residual value of $750 per acre is fair. This leaves the computation of damages as 2.89 acres x ($4,500 - $750) = $10,837. That will be our damages award.

Conclusion and Order

For the foregoing reasons, it is hereby ordered:

1. The breach of contract claim of Helen Lundy against the Respondent is allowed; and
2. Helen Lundy is awarded the sum of $10,837 in full and complete satisfaction of her claim herein;
3. The breach of contract claim of Jack Barnes against the Respondent is denied, and forever barred;
4. This case is closed.


author: Frederick, J.

text:
    (No. 96-CC-1633
    David Henderson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 5, 2001.

    David Henderson, pro se.

    Jim Ryan, Attorney General (Diann K. Marsalek, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, David Henderson, filed his claim sounding in negligence on November 27, 1995. Claimant, an inmate with the Illinois Department of Corrections (“DOC”), seeks judgment for $3,000 from Respondent for an injury he suffered while he was a resident of the Centralia Correctional Center (“Centralia”). Claimant alleges his injury was the result of negligence on the part of Respondents employees.

A hearing was held at Dixon Correctional Center before a Commissioner of the Court. Claimant filed a brief, but Respondent was barred from filing a brief after failing to file a brief within the appropriate time period.

The Facts

On April 18,1995, Claimant was assigned to the 1:00 p.m. to 9:00 p.m. shift in the Dietary Department at Centralia as a salad preparation man. Claimant performed his duties primarily in the kitchen and the salad and meat preparation room at Centralia. The entrance to the prep room was located at the southwest corner of the kitchen. A storage shed containing pots and pans was located near the eastern wall in the southern portion of the kitchen. In the center of the kitchen was an area which contains seven large cooking pots and two coffeepots. Two of the cooking pots and the two coffeepots are located in the northern portion of the cooking area. Five eighty-gallon cooking pots are located in the south portion of the cooking area. These cooking pots were adjacent to a walkway on the south side of the area which was used by workers in the prep room when pots and pans were needed from the storage area. The south walkway, which was approximately eight feet wide, was the shortest route between the prep room and the storage area. Workers in the prep room also could have used a longer route around the northern portion of the cooking area.

The cooking pots had lids with activators which contain a spring and compression valve designed to prevent pressure from building up in the pots when contents within the pots are boiling. If the lids were operating properly, steam would go straight up into a ventilation system when the lids were opened. The lids were designed to release to prevent pressure from building so that steam and liquid within the pots would not spew out of the pots.

Claimant testified that on April 18, 1995, at approximately 2:00 p.m. or 3:00 p.m., he was performing his duties as a salad preparation man. While performing his duties, he walked on the south walkway to the storage area to get some pans. At that time some cooks were standing by the five cooking pots adjacent to the south walkway. As Claimant passed the cooking pots, some steam and hot water shot from a pot and burned his left forearm. He believes the steam and water came from the third pot. After Claimant was burned, he reported to a supervisor who told Claimant that after a head count was taken, he would be taken to the health care unit. As he was waiting to be taken to receive treatment, Claimant was told by Walter Beck-with, who was cooking at the pot from which Claimant believes the steam and water escaped, that the lid on the pot was broken. After Claimant received treatment for the burn, he returned to finish his shift. Claimants burn was a first degree burn and caused pain. Claimant has no permanent injury.

Samuel R. Askew, the Public Service Administrator in charge of the Dietary Department at Centraba, was presented as a witness for Respondent. He testified that the cooking pots being used in 1995 were still in use at the time of the hearing and that he was not aware of any problems with spillage or splashing from those pots. He also testified that audits of the kitchen were conducted on a yearly basis and that he was not aware of any audits indicating any problems with cooking pots in 1995. Mr. Askew further testified that he was aware of the incident involving Claimant and that he was not aware of any prior injuries occurring in a manner similar to that which Claimant has alleged happened to Claimant.

On cross-examination, Mr. Askew testified that he wrote a memorandum about Claimants accident dated December 28, 1995, that is contained in the Departmental Report, in which he states in regard to the cooldng pots, “It is factual that the actuators on the lids are aged somewhat and in need of replacement, but they still would not cause spewing steam or liquids beyond a few inches at the boiling point.” Mr. Askew also acknowledged that if the lid of a cooking pot was raised while the pot is cooking, boibng bubbles were going to come out.

In response to a question asked by the Commissioner, Mr. Askew testified that Claimants Exhibit No. 10 was a portion of a report of an in-house audit that was conducted at Centraba. The auditor inspected the Dietary Area at Centraba on October 16, 1995. Page 12 of the report states in pertinent part: “Main Kitchen Area: The steam kettles have plastic string tying the lids up. It was explained that the lids do not stay up. As the steam kettles emit heat, this auditor questions the safety of plastic string holding the lids up.” Mr. Askew acknowledged that the steam kettles described in the report were the cooking pots in the ldtchen where Claimant was working.

The Law

Respondent owes a duty to inmates of its penal institutions to provide them with safe working conditions in which to perform their assigned work. (Jones v. State (1993), 45 Ill. Ct. Cl. 90, 92.) To prevail, Claimant must prove by a preponderance of the evidence that Respondent breached its duty of care and the negligence of Respondent was the proximate cause of Claimants injury. (Rogers v. State (1991), 44 Ill. Ct. Cl. 149, 152.) Claimant must also prove that Respondent had actual or constructive knowledge that the dangerous condition which caused the injury existed prior to the accident. See Ratcliffe v. State (1995), 48 Ill. Ct. Cl. 137, 141-142.

The memorandum of Respondent s witness, Mr. Askew, indicates the actuators on the lids of the cooking pots were “aged and somewhat in need of replacement, but still would not cause spewing steam or liquids beyond a few inches at the boiling point.” Mr. Askew acknowledged that if the lid of a cooking pot was raised while the pot was cooking, boiling bubbles would come out. Respondents in-house audit indicates that the lids on the cooking pots were being tied by plastic string and that the person who conducted the audit was concerned about the safety of such a procedure. Though the audit was conducted approximately six months after Claimant s accident, the information in the report and the memorandum of Mr. Askew indicate to the Court that the worn condition of the lids appears to have existed for a sufficient period of time that Respondent either knew or should have known there was a dangerous condition with the lids at the time Claimant was injured. The Court, therefore, finds that the lids on the cooking pots were not in proper working condition and that this constituted a dangerous condition of which Respondent was aware or should have been aware. The Court further finds that Claimant has proven that his injury was proximately caused by water or steam escaping from one of the cooking pots. By failing to properly maintain the lids on the cooking pots, Respondent breached its duty to provide Claimant with safe working conditions to perform his assigned work. Respondent is, therefore, liable to Claimant for his injury.

Damages

As a result of the accident, Claimant suffered a burn approximately two inches by one inch on his left forearm. Claimant testified that the wound was cleansed, treated with Silvadene dressing, and wrapped in the healthcare unit at Centraba, and that this procedure was repeated approximately eight times. Claimant maintains that he suffered a second degree burn. However, Claimant’s medical records and testimony at the hearing from Annette Widener, a registered nurse at Dixon, indicate that Claimant suffered a first degree bum. Claimant testified that he did not miss any work due to the injury and that he did not incur any medical expenses. He also testified that the injury did not affect his daily activities and should not affect him in any way in the future. The Court, therefore, finds that the sum of Five Hundred Dollars ($500) compensates Claimant for the injuries he has proven. Ross v. State (1994), 46 Ill. Ct. Cl. 423.

For the foregoing reasons, it is the order of the Court that Claimant be and hereby is awarded the sum of Five Hundred Dollars ($500) in full and complete satisfaction of his claim.