author: Jann, J.

text:
    (No. 87-CC-3500
    Marie G. Honore, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 24, 1992.

    Gregory R. Sun, for Claimant.
    Roland W. Rurris, Attorney General (Janice L. Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

This cause of action is brought before the Court by Claimant, Marie G. Honoré, for personal injuries allegedly suffered when she was injured while riding in a “Minuteman” emergency vehicle (tow truck) owned by the Respondent and operated by an employee of the Department of Transportation (hereinafter Department). Claimant testified on her own behalf at a hearing held on her verified complaint for personal injuries.

The Claimant testified that she was traveling as a passenger in a taxicab eastbound on Interstate 90, also known as the Kennedy Expressway, on the evening of April 29, 1986. The taxicab lost power and came to a halt on the expressway. A State Police car and a State of Illinois tow truck arrived on the scene. The driver of the tow truck offered to transport Claimant to a location where she could obtain transportation. Claimant got into the truck and the driver continued eastward. The truck exited the expressway at Washington Street, within the City of Chicago, and proceeded east on Washington to Clinton Street. Claimant was seated in the passenger seat of the truck.

Claimant stated that while traveling on Washington Street, the driver swerved the truck to the right and the front wheels went up on the curb. Claimant fell out of her seat and landed between the passenger seat and the driver’s seat. Immediately prior to the truck swerving, the driver was handing Claimant a business card. She was reaching for the card when the truck swerved. She stated that the curb was eight inches in height. Claimant’s Exhibits Nos. 1-A, B, C and D were photographs of the site where the tow truck allegedly struck the curb and were admitted into the record. Claimant was unable to testify to the speed of the truck when it hit the curb.

When she fell, she felt pain in her back, arm and knee. The next day she went to the emergency room of a hospital where X rays were taken and she was given pain medication. She testified she was bruised on her back from her shoulder to her leg. She received physical therapy. She still has pain in her back and has advanced arthritis of the spine. Claimant’s Exhibits Nos. 2, 3 and 4 were medical bills and were admitted into the record. None of the bills admitted contained reports by the care providers as to the extent of Claimant’s injuries or how the injuries arose.

The State presented the driver of the truck, David Barry, as a witness. He testified that on the evening of April 29, 1986, he picked up a woman after her taxicab had stalled on the Kennedy Expressway. He could not identify Claimant as the woman he assisted. He transported the woman to the Northwestern train station. In so doing, he drove east on Washington Street and turned at Clinton Street. He intended to give her his business card but inadvertently gave her the card of Erasmo Berrios. Bariy and Berrios utilize the same vehicle in the course of their duties.

Barry stated that Claimant did not complain about the way he was driving, did not lose her balance in the seat and did not fall out of her seat. He further stated that he did not recall running over a curb on the evening in question. Respondent’s Exhibits Nos. 1, 2 and 3 were admitted into the record. These exhibits included a traffic patrol assist report and a communications center log report documenting Barry’s response to the call for assistance to Claimant’s taxi.

Claimant had filed an action against Erasmo Berrios in the circuit court of Cook County. The injuries complained of in the claim before this Court were the subject matter of that suit before the circuit court. That suit was dismissed in 1989 when Claimant was unable to testify that Berrios was the driver in question. Claimant, on rebuttal at the hearing on the instant claim, did identify Bariy as the driver of the tow truck. This was the first time that the driver was identified to Claimant. She previously had no information available that Bariy was the driver in question. Although counsel for Claimant initially complained that the State had not previously identified the driver, no objection to Barry’s testimony was made at hearing.

Claimant has the burden of proving by a preponderance of the evidence that Respondent’s employee was negligent and that such negligence was the proximate cause of Claimant’s injuries. (Evans v. State (1988), 40 Ill. Ct. Cl. 140.) Claimant failed to establish that Barry operated the tow truck in a negligent manner. She filed no complaint or police report at the time of the alleged incident and did not seek medical attention until the following day despite testifying she was in great pain immediately following her fall.

Claimant testified to her knowledge of the alleged injuries and provided bills for medical treatment. However, as previously noted, no diagnosis or medical report of the cause of the injury and the course of treatment was provided. Claimants response to interrogatories indicated she had previously injured her shoulder and back and suffered from arthritis.

As Claimant failed to establish that she was injured in the manner claimed and failed to establish that the injuries were proximately caused by any negligence on the part of Respondents employee, we must deny this claim. This cause is hereby dismissed with prejudice.


source: Caselaw Access Project

author: Montana, J. Frederick, J.

license: Public Domain

text:
    (No. 87-CC-3588
    Ronald Louis, Claimant, v. The State of Illinois, Respondent.

      Order filed May 3, 1989.

      Order filed February 24, 1993.

    Ronald Louis, pro se, for Claimant.
    Roland W. Burris, Attorney General (Diann K. Marselek, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, J.

This cause comes on to be heard on the Respondent’s motion to dismiss, due notice having apparently been given and the Court being advised;

The Claimant, an inmate at a State penal institution, brought this claim seeking compensation for various items, including a stereo, which he alleges were lost due to the negligence of the Respondent.

The Respondent moved for dismissal of the claim on the grounds of fraud pursuant to section 14 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.14). It is the Respondents position that the Claimant has attempted to perpetrate a fraud on this Court by submitting an altered sales slip as proof of the value of the stereo. In support of its motion, Respondent offered a copy of the decision of the Administrative Review Board to which the Claimant had previously submitted his claim. This document was described as a departmental report and offered as prima facie evidence pursuant to Rule 14 of the Court of Claims Regulations (74 Ill. Adm. Code 790.140).

The Respondents motion is denied. Rule 14 (74 Ill. Adm. Code 790.140) only accords prima facie evidence status to facts. We will admit the copy of the decision of the Administrative Review Board for the limited purpose of showing the fact that the Claimant has exhausted his administrative remedies. Its relevance for any other purpose is not apparent at this time. We will not accept as prima facie evidence of the truth of the matter asserted the Boards observations, conclusions, or findings on issues of fact involving litigation before the Board.

That the Board observed that a sales slip was “very noticeably altered” is not relevant to the proceeding here. This Court is not an appeals body for the Board. Proceedings here in cases such as the one at bar are de novo. The Claimant has not even tried to introduce the sales slip at issue. It is not in the record.

Motion denied.

ORDER

Frederick, J.

This matter coming to be heard upon the motion of the Respondent, State of Illinois, ex rel. Department of Corrections, to dismiss this cause for want of prosecution, due notice having been given to the parties hereto, and the Court being fully advised in the premises, it is hereby ordered that the instant claim be dismissed for want of prosecution.


text:
    (No. 87-CC-3870
    Beth Dunbar, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 31, 1992.

    Ellen E. Jenkins, for Claimant.
    Roland W. Burris, Attorney General (Patricia L. Hayes, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

Claimant seeks damages for personal injuries sustained by her on August 24, 1986, at the DuQuoin State Fairgrounds at DuQuoin, Perry County, Illinois. Claimant alleges that she fell in a hole and suffered a broken ankle due to Respondents negligence.

Claimant, accompanied by her husband, visited friends and relatives at the Rend Lake Marina at Rend Lake and proceeded to the DuQuoin State Fairgrounds at approximately 6:00 p.m. Mrs. Dunbar and her husband walked the midway, talked with friends, and stopped to drink beer at a beer tent. Claimant and her husband left the beer tent about 7:30 or 8:00 p.m. and walked through the midway into the grandstand with some acquaintances. Claimant testified she used a restroom at the grandstand and proceeded from the south end of the grandstand toward a circular wooded area surrounded by curbing and pavement.

Claimant testified she walked through the wooded area because it was a shortcut, although she also testified she had no specific destination. She was walking alone at the time of the incident in question. Claimant said she took four or five steps into the wooded area and fell into a hole approximately 18 inches deep and six feet wide. She fell to her back and felt pain in her ankle.

It was dusk at the time Claimant fell and still somewhat light. There was no artificial lighting in the wooded area. There were no fences, barricades or pedestrian warnings posted to deter pedestrian traffic from the area. Claimant testified that it was darker and more difficult to see inside the wooded area than on the paved road which bounded the area. She stated that there were flattened areas of grass and plants which looked as if others had used it as a pathway. She was obliged to make her way around bushes, tree limbs and other holes to cross the wooded area. Claimant did not see the hole where she was injured before falling.

Claimant’s husband, who had been walking with a group of others on the paved road, heard his wife call for help and proceeded into the wooded area to assist her. Mr. Dunbar testified that the hole had some grass and weeds inside but was not fully covered by vegetation. He said he had cut through the woods in prior years and had seen several open and obvious holes in the area. He also stated he had seen people using the area to consume alcohol and go to the bathroom. Under cross-examination, Mr. Dunbar said he had been through the area less than five times up to 1985.

At hearing, Claimant was asked why she went through the woods while the others in her company went around the woods on the paved walkway. She responded, “I have no answer for that.” However, Claimant admitted on cross-examination that she had a disagreement with her husband and was angry when she walked into the wooded area. She further admitted that her anger may have impeded her ability to look around and see what she was doing. Claimant also testified that she had consumed five or six beers in the 4Vz hours preceding her injury. When questioned as to the effect of this quantity of alcohol, she said, "Oh, probably a little lightheaded or something. I don’t know.”

Respondent presented Michael DuBois, manager of the DuQuoin State Fair. Mr. DuBois testified that the fairgrounds is a park-like setting with no sidewalks and paving only on the roads. The area in question is a mature landscaped area of pine trees and shrubs surrounding it. It is surrounded by paving on all three sides and has no purpose other than as an esthetic accent to the property. The landscaping has been in place for 35 to 40 years and the perimeter shrubbery is quite heavy, standing at least three to four feet high. A pedestrian would have to brush by shrubbery to enter the landscaped area. After the State acquired the fairgrounds in 1986, nothing was done to the interior of the landscaped area. Mr. DuBois stated that there are no established walking paths through the area and only the outer edges of the landscaped area are mowed, as the area is not intended for pedestrian passage.

In order for Claimant to recover upon a theory of negligence, she must prove by a preponderance of the evidence that the State has breached its duty of reasonable care, that said breach is a proximate cause of Claimant’s injuries and that Claimant was injured as a result of said negligence. (Acme Carrier, Inc. v. State (1977), 32 Ill. Ct. Cl. 83.) The Claimant must also establish that the State had notice, either actual or constructive, of the purported defect before recovery is allowed. Hitt v. State (1982), 35 Ill. Ct. Cl. 798; Becker v. State (1983), 35 Ill. Ct. Cl. 704.

This Court has held that the State of Illinois is not an insurer of the safety of persons who visit its parks and recreational areas. Visitors to State parks are invitees to whom the State owes a duty of reasonable care in maintaining the premises. (Heimann v. State (1977), 32 Ill. Ct. Cl. 111.) The State has an additional duty to exercise ordinary care to protect invitees from harm (Jodlowski v. State (1967), 26 Ill. Ct. Cl. 66), and to exercise reasonable care in the maintenance of its parks (Finn v. State (1962), 24 Ill. Ct. Cl. 177). However, the State is not required to undertake extraordinarily burdensome inspections or maintain its parks in such condition that patrons may wander at will over each and every portion thereof. Lyons v. State (1987), 39 Ill. Ct. Cl. 192; Pulizanno v. State (1956), 22 Ill. Ct. Cl. 234.

Claimant has not shown by a preponderance of the evidence that the State breached its duty of ordinary care. Claimant took a shortcut through a landscaped area where she had to push through large shrubs and bushes to gain entry. The hole or depression which Claimant aUeges caused her injuries was large and readüy apparent, although her visibility may have been limited as she chose to enter the area at dusk or early evening.

The fact that Claimant sustained an ankle injury as a result of the hole or depression shown to exist in the landscaped area in question does not, in and of itself, establish said hole or depression as a condition of such unreasonable danger that the State had a duty to foresee that the condition would lead to an unreasonable risk of harm to invitees of the DuQuoin State Fair. Where Claimant chose to leave the paved path and enter the landscaped area at nightfall, she assumed the normal, obvious and ordinary risks attendant to the use of the property. There is no evidence in the record indicating the hole or depression where Claimant fell was anything other than a natural condition.

Claimants evidence did not establish that the landscaped area was routinely used by large numbers of people, and, indeed, it seems from the record that the contrary is true. Therefore, the State cannot be held to have had notice of the use of the landscaped area as a pedestrian pathway. The State purchased the fairgrounds four months prior to Claimant s accident.

For the foregoing reasons, Claimants claim for damages is denied and this cause is hereby dismissed with prejudice.


author: JANN, J.

text:
    (No. 87-CC-4140
    Myoung Ma and Bok Soon Ma, Individually and on behalf of their son, Ji Wong Ma, a minor, Claimants, v. The State of Illinois, Respondent.

      Order filed May 17, 1993.

    George J. Nett, for Claimant.
    Dunn, Goebel, Ulbrich, Morel & Hundman, for Respondent.
   ORDER

JANN, J.

The Claimants filed their complaint in the Court of Claims on June 17, 1987. Claimants allege that the State was negligent in constructing and maintaining a pipe system on the campus of Western Illinois University so close to a children s play area that it became a dangerous condition. Claimants further allege the State failed to warn residents of the danger. Claimant, Ji Wong Ma, fell off the pipe while playing on the pipe and suffered a skull fracture. The Claimants seek damages of $100,000 per Claimant.

A hearing was held before the commissioner on October 8 and 9,1991. Both parties filed briefs.

THE FACTS

Claimants, Myoung Ma and Bok Soon Ma, are the parents of Claimant, Ji Wong Ma, who was bom on June 8, 1983. Ji Wong Ma was injured on January 14, 1987, when he fell from a pipe on the campus of Western Illinois University. At the time of the accident, Ji Wong Ma was three years and seven months old. Myoung Ma was a student at Western Illinois University and Bok Soon Ma was a homemaker. At the time of the trial, Ji Wong Ma was eight years old and he was attending school in the third grade. The Mas lived in an apartment in East Village which is an apartment complex on the Western Illinois University campus. Outside the apartment is a childrens play area. Down the hill from the play area is a grassy, woody area with heating pipes above the ground.

On January 14, 1987, Ji Ma and his brother, Il Ma, and three other Korean children were playing on the playground near the residence of their parents. At the time of the accident, Il Ma was five years old. Il Ma testified he does not clearly remember the accident. Of the five children playing, Il Ma was the oldest. Initially, the boys’ mother, Bok Soon Ma, was with the children on the playground sitting at a picnic table with two friends. When Myoung Ma came home for lunch, Bok Soon Ma went inside her apartment at East Village.

After Bok Soon went inside, the children headed down the hill for the pipes at the bottom of the hill. Two adults remained sitting at a picnic table at the time of the accident. These adults could not see the pipes from the table where they were sitting. All of the children had been playing on the pipes before the Claimant fell from a pipe.

Ji Wong Ma was the first child to climb out on the pipe. Il Ma testified he thought it was dangerous. He was scared of the pipe and had told his brother to stay on the lower parts. Ji Wong Ma crawled out on the pipe and fell off upside down. Ji Wong Ma fell from the second bend in the pipe. The pipes come out of the side of the hill on the ground and are held above the ground by a suspension system.

II Ma did not see his brother fall. The other childrens yelling caused him to turn and he saw his brother was already on the ground. After Ji Wong Ma fell, the other children started running towards their home at East Village. II Ma said a black man carried Ji Wong Ma to the Ravine Room between Washington and Lincoln dormitories. The other children led the man to the apartment of Myoung and Bok Soon Ma.

Ji Wong Ma fell from a steam pipe at a height of about seven feet and hit his head on a solid object, which was likely a part of the structure itself, causing an open depressed slmll fracture. The structure was constructed by Respondent approximately 21 years before the date of the fall, and remained substantially the same from the time of construction until the date of the accident. East Village was in existence prior to the construction of the pipe structure and has been used for married student housing since it was built. From the time that the pipe structure was constructed until 1971, there was a creek running under the pipe structure.

The Claimants had moved into East Village approximately six months prior to the date of the accident. Myoung Ma had been in the United States less than four years, while Bok Soon Ma and Ji Wong Ma had been in the United States approximately six months. On the date of the accident, Bok Soon Ma and Ji Wong Ma spoke practically no English, while Myoung Mas English was not fluent.

Claimants, Myoung Ma and Bok Soon Ma, both testified that they knew of the pipes. The children had played outside daily for five to six months on an average of one to two hours. Bok Soon Ma had observed the pipes prior to the accident. Bok Soon Ma knew that her children had played on the pipes once while they were walking. Claimants, Bok Soon Ma and Myoung Ma, the parents, were in their apartment at East Village at the time of the fall. They had been inside for 20 minutes before the man came to the door to inform them of the accident.

In addition to the children being unsupervised by Claimants, Bok Soon Ma and Myoung Ma, on the date of the accident, Officer Gene Clark of the university police testified that he had observed Ji Wong Ma playing unsupervised in Sherman Hall in December of 1986. At that time, there were three to five children who were also unsupervised. Sherman Hall is three blocks from East Village where Claimants resided.

Officer Clark, who had worked at the university for 13V2 years, was the public safety officer who responded to a radio call of an injured child in the Ravine Room between the Lincoln and Washington dormitories on the date in question. When he arrived, Ji Wong Ma was walking around. He was agitated and would not let the officer get close to him until his father arrived. Officer Clark offered to take the whole family to the hospital. They declined. The Mas took Ji Wong Ma to the Macomb Hospital. After some initial treatment, Ji Wong Ma was taken to the Peoria Hospital. He was in the hospital for seven to eight days. The medical bills which arose out of that treatment exceed $8,100. Ji Wong Ma suffered a depressed skull fracture when he fell. He had one focal seizure after the fall.

As a result of the accident, Ji Wong Ma has a scar on the right side of his head near the back which is in a comma shape. This scar is not visible. Both medical doctors testified there was no permanent injury to Ji Wong Ma in their respective depositions.

Ji Wong Ma was eight years old and in the third grade at the time of the trial. He makes good grades and participates in numerous physical activities that boys his age would normally participate in.

There was no evidence presented that Respondent had knowledge that young children habitually frequented the vicinity around the pipes. Additionally, the testimony from numerous witnesses was that there had been no previous accidents on the pipes.

Officer Clark had worked at Western Illinois University as a public safety officer for 13% years. He had also been an emergency medical aid technician since 1982. Officer Clark testified he knew of no other accidents on the pipes during his 13% years on the force. Likewise, George Goehner who worked for the university for 23 years in a number of positions with the housing and physical plant departments also testified he had no official or personal knowledge of children being injured while playing in the vicinity of the pipes.

Respondents witnesses, E. F. Raymond and Carol Homell, searched the safety and police reports. They did not find any reports of children playing on the pipes or injuries arising therefrom. E. F. Raymond was the assistant director of the physical plant for 27 years at the university. In addition to reviewing the records, he stated he had no personal knowledge of personal injuries arising in the vicinity of the pipes.

THE LAW

We must first determine whether the State was negligent in its construction or maintenance of the steam pipe system. Claimants presented no evidence or testimony to prove negligence in the construction or maintenance of the steam pipe system. Respondent presented testimony that such a system is not unusual and that the presence of a small stream through the ravine (which the piping traverses) at the time of construction of the system made its design appropriate. Claimants offered no proof of failure to maintain the system other than the implication that it should be modernized. We find Respondent was not negligent in the construction or maintenance of the steam pipe system.

Claimants further assert negligence in the maintenance of the play area near the steam pipe system which they contend constitutes a dangerous condition. Claimants’ exhibits indicate the play area is adjacent to the East Village complex. The testimony at hearing disclosed that the pipe system is approximately 300 to 400 feet from the center of the play area. The steam pipes are located in a ravine which has steep sides, one of which slopes away from the west perimeter of the play area. As Claimant Ji Wong Ma is and was a minor child at the time of his injury, several additional issues arise. Although Claimants’ complaint did not explicitly state a charge of attractive nuisance, arguments made at hearing and in Claimants’ brief indicate reliance on said doctrine. Respondents assert Ji Wong Mas parents were contributorily negligent in failing to supervise their child and any finding by the Court for Claimants should be reduced accordingly.

We next address whether the steam pipes constituted a dangerous condition and whether the State had actual or constructive notice of a dangerous condition. In order to prevail upon a negligence cause of action, claimant must establish the existence of a duty, a breach of said duty, and an injury which proximately results from said breach. (Ondes v. State (1991), 43 Ill. Ct. Cl. 272.) The existence of a legal duty requires more than a possibility of occurrence, and the State, like any other party, is charged with such a duty only when harm is legally foreseeable. The issues of foreseeability and duty involve a myriad of factors, including the magnitude of the risk involved, the burden of requiring the State to guard against the risk, and the consequences of placing such a burden on the State. Wilson v. State (1989), 41 Ill. Ct. Cl. 50; Ondes v. State (1991), 43 Ill. Ct. Cl. 272.

The duty owed an invitee is set forth in Ondes, supra, at 276, and Thornburg v. State (1985), 39 Ill. Ct. Cl. 76. A landowner has an obligation to use reasonable care and caution to keep his premises reasonably safe for use by a business invitee. However, a landowner is not an insurer of the safety of his invitees. Invitees assume normal, obvious or ordinary risks attendant to the use of premises. A landowner is not required to give precautions or warnings where such dangers or risks are evident in order to exercise the duty of reasonable care toward invitees unless the facts indicate the landowner should have anticipated the harm despite such knowledge or obviousness.

The record clearly shows that the steam pipe system was open and obvious and that Claimants Myoung Ma and Bok Soon Ma were personally aware of the existence of the system and its proximity to their apartment. Mrs. Ma had also warned her children not to play on the pipes, indicating that she acknowledged the patent risk involved. Ergo, we must determine whether the State had actual or constructive notice that harm should be anticipated despite the open and obvious nature of the system. Claimants presented no evidence that yoúng children habitually played on the pipes. Respondents records disclosed no complaints or reports of injury resulting from similar activity in at least 10 years. Wherefore, we find the State has met its duty of reasonable care to Claimants Bok Soon Ma and Myoung Ma and had no duty to post warnings or issue precautions regarding the pipe system.

Under Illinois law, Claimant Ji Wong Ma, a minor aged three years, seven months at the time of his injury, is not held to the same standard of responsibility for his personal safety as an adult. Russell v. State (1990), 42 Ill. Ct. Cl. 83, enunciates a standard which is essentially a “reasonable minor” test. A reasonable minor is expected to act with a degree of care which would be commonly expected of a person of similar age, mental capacity and experience under similar circumstances. No evidence was introduced to indicate Claimant Ji Wong Ma lacked the mental capacity of a typical 3Vz year old. He had lived with his parents at the location in question for approximately six months. He testified that he had played on the pipe system prior to the accident and had been told by his mother that he was not to play there. II Ma, minor Claimants brother, also testified he had warned Ji Wong Ma that playing on the pipes was dangerous. Claimants brief implies that as Ji Wong Ma and his mother spoke very little English, they were somehow incapable of ascertaining the risks imminent in a small child playing on the piping. Testimony by all three Claimants refutes this contention. We find the doctrines set forth in Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, and Young v. Chicago Housing Authority (1987), 162 Ill. App. 3d 53, 515 N.E.2d 779, are controlling in the case now before us. Young, supra, affirmed Alop, supra, stating that a “commonsense” principle applies in such cases. If a child crawls or climbs onto a structure some distance from the ground, he is presumed to know that a fall may result in injury. The reasoning behind the court’s finding was that such activity presented an obvious risk which children encounter in daily life. Although the children in Young and Mop were ages six and five, respectively, we find the record presents no reason why Claimant Ji Wong Ma should not be held to the same standard. We therefore find that Ji Wong Ma was aware of the risk of injury inherent in playing on the pipes and Respondent has not breached its duty of reasonable care owed to Claimant.

Claimants’ brief and certain arguments at hearing indicate reliance on the doctrine of attractive nuisance. Griffin v. State (1983), 36 Ill. Ct. Cl. 206, discusses the historic application of the doctrine and holds that

“for all practical purposes, the application of the rules of ordinary negligence cases actually govern the outcome of suits by child trespassers. The element of attractiveness is significant only insofar as it is indicative that the trespass should be anticipated; the true basis of liability is the foreseeability of harm to the child.”

The Griffin court went on to apply the findings of Alop and Young, previously discussed in this opinion, which held there is no duty to remedy a condition if it involves risks which children may appreciate and avoid. We, therefore, find Claimants have failed to prove Respondent negligent under an attractive nuisance theory.

For the foregoing reasons, we must deny the claims of Ji Wong Ma and his parents Myoung Ma and Bok Soon Ma. This claim is hereby dismissed.


author: Burke, J. Burke, J. Burke, J.

text:
    (No. 88-CC-0396
    Mary Doe and Carrie Doe, a minor by her Mother and Next Friend, Mary Doe, Claimants, v. The State of Illinois, Respondent.

      Order filed November 13, 1991.

      Opinion filed November 13, 1991.

      Order filed March 25, 1993.

    Spinak, Levinson & Babcock, P.C., for Claimant.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Burke, J.

This cause comes on to be heard on the Courts own motion;

It is hereby ordered that:

1. For purposes of publication of the decision entered previously herein, the caption should be reported as Maty Doe and Carrie Doe, a minor by her mother and next friend Mary Doe, and that any reference to the parties by name in the body of the decision be likewise altered.

2. That the record on this matter be sealed and is not to be made available for public inspection unless necessary measures are taken to insure the anonymity of the Claimants or further Court order is obtained.

OPINION

Burke, J.

Claimant brings this action sounding in tort, seeking damages of $100,000 pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(d)), on behalf of herself and her minor daughter. Claimant alleges that while hospitalized at Madden Health Center, she was raped by another patient on December 20,1986.

The Claimant is 40 years of age and has an extensive education. She holds a Bachelor’s degree in psychology and a Master’s degree in communication. She worked in various sections of mental health programs from 1972 to 1986.

On December 18, 1986, Claimant was en route to pick up her niece from school when she became confused, got lost, and went to the Du Page Health Clinic. She was crying and unable to speak. Paramedics took her to LaGrange Memorial Hospital. When it was determined that she had no insurance, she was taken to Madden Health Center.

Upon arrival at Madden Health Center, Claimant was out of control, restless, yelling and screaming or singing. She was diagnosed with atypical psychosis. Atypical psychosis has a sudden onset, severe symptoms and clears up quickly. Claimant was transferred out of the common area and placed in full leather restraints in a small room because she was exposing her genital area. When she was released from full leather restraints, Dr. Chin, a psychiatrist and employee at Madden Health Center, ordered close observation of Claimant because in cases of atypical psychosis behavior changes from day to day.

Close observation, as ordered by Dr. Chin, required the patient be observed every 15 minutes to protect her from sexual assault because she was disrobing and might have sexual intercourse with other patients. Claimant was transferred to Pav. 3 where three or four staff members supervised 39 patients. There were no security personnel. David Martinez, who had intercourse with Claimant, was also housed in Pav. 3. Mr. Martinez had a long criminal history with a violent sexual activities record.

Dr. Andrew Byrne, a psychologist employed at the Madden Center, recites the following findings in his examination of Claimant:

“Patient complained of being under various family and financial pressure for the past 18 months and under pressure from her own illness and those of her parents * * *. Patient was wandering die streets with her 6 months old baby o o o »
“Patient was observed laying in pit floor with gown exposing genitals, grabbing at male peers and pulling them on top of her. In addition, patient allegedly kicked and struck out at staff ° ° ®. Patient was taken out of full leather restraints and transferred to Pav. 3, where once again, laying in the pit, attempted to take off her clothing, praying and singing loudly 0 * ° began kicking and biting and replaced in leather restraints ° * °. At 2:10 p.m. (on December 20,1986), a patient reported to nursing section that Claimant was having sex with another patient ° °

Claimant stated that she was confused and that she felt that she had to have sex with another patient since she thought the other patient was a staff member. The nurse who examined Claimant after the incident stated that Claimants uterus was enlarged and bleeding; she saw scratches on Claimants back and blood on the sheets and gown as well as inside her thighs. This condition could have been due to Claimants menstrual period.

Barbara Noonan, R.N., a psych nurse employed since 1986 at the Madden Health Center, stated her opinion as to Claimants capacity at the time of the incident:

“I spoke with her, and yes, correct, I did not feel she was mentally able to make such a decision. In that kind of incident, we have to call it rape.”

The evidence reflects that a sexual act occurred between Claimant and the offender, that such act occurred by force, evidenced by the bruises and scratches on the body of Claimant, and that such act meets the statutory definition of rape. Further, the history of Claimants psychotic condition refutes the possibility of “consent.” As for responsibility of Respondent for the incident complained of, the history of Claimant, examinations conducted by Respondents employees at the Madden Health Center and their failure to keep Claimant from coming into any contact with the offender were negligent.

To determine whether the act complained of affected the ability of Claimant to care for her daughter, the evidence presented indicates that the psychotic condition, prior to the aforesaid incident, had the same effect on such custody and care of a baby as did her condition after said incident.

It is hereby ordered:

1. That the Claimant, Mary Doe, is awarded $50,000 in full and complete satisfaction of this claim.

2. That claim of Carrie Doe, daughter of Maiy Doe, is denied.

ORDER

Burke, J.

This cause comes on to be heard upon the parties’ petitions for rehearing, and the Court being fully advised in the premises.

It is hereby ordered that the petition for rehearing is hereby denied.


author: Patchett, J.

text:
    (No. 88-CC-0566
    John Doyle, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 29, 1993.

    Marshall R. Dusenbury, for Claimant.
    Roland W. Burris, Attorney General (Carol J. Barlow, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This is a claim which arose out of a traffic accident which occurred on February 5, 1987. At 3:30 p.m., the Claimant was driving home from work southbound on Illinois Route 45 north of Bourbonnais, Kankakee County, Illinois. He was driving a 1974 Chevrolet van which he had allegedly purchased two to three weeks prior to the date of the accident. The van was not yet titled in his name.

At a point approximately one-half mile north of Indian Oaks Road, his van left the highway. When asked if the road was slippery, he stated that he “fell off the edge.” He testified that he slowed down to get back on the road and got caught in a big rut on the side of the road. He jerked his van around and slid to the side. It then started rolling. His opinion was that the cause of the accident was a defective shoulder.

The van was totaled. The market value of the vehicle at the time of the accident was $750 to $800. He paid $248 to Conway Towing to have the van towed from the scene. The van was later junked.

Illinois State Trooper S. Learner investigated the accident. His narrative report was introduced into evidence, but the trooper was not called by either party.

Plaintiff introduced 13 photographs into evidence. These were taken by the Claimants sister, in his presence, two days after the accident. The photographs were admitted without objection. The Claimant testified that he recognized the place of the accident because of the scrapes on the road where the van stopped. He then testified, ‘T looked back down the street, and I could see where I came off the road.”

The Claimant further testified that the rutted area was 300 or 400 feet and its depth was five inches. He testified that he took a soda can, which was approximately 5ki to 6 inches tall, to the scene and placed it next to the groove on the road while taking photographs.

After the accident, he was taken to a Kankakee hospital where he received emergency treatment. X rays were taken and his finger and right knee were cleaned. He was given a sling and sent home. He later saw an orthopaedic surgeon who suggested surgeiy on his left shoulder because it would pop out every time he put pressure on it. He had the surgery a week later. He could not move his left shoulder during the time period between the accident and the surgery.

The pre-operative and post-operative diagnosis were the same (third-degree acromioclavicular Spartan left shoulder). A pin was removed on March 3, 1987, and on March 10, 1987, he was instructed in the use of exercises. He was discharged on March 17, 1987. The medical record for that date stated that,

“John has no pain today, no tenderness, a full range of motion and he is certainly a lot stronger than I am. We will see him back on a pm basis.”

Despite this, at trial the Claimant demonstrated some minor loss of upper extension. He further stated that he had pain occasionally, but his mobility was not reduced. He testified that he did have pain every evening, but he had not seen a doctor about the nightly pain.

At the time of the accident, the Claimant was working for Popko Insulation in Chicago Heights. He was off work for three months and earned approximately $350 net per week prior to the accident. At the time of the trial, the Claimant drove a semi-trailer truck for a living. He performed all activities as well at the time of the trial as before the accident.

Upon cross-examination, the Claimant admitted that he did not see any skid marks where he dropped off the road. He further stated that when his van went off the shoulder, he slowed down to 55 miles per hour and tried to get it back on the highway. It then rolled over three times. When he returned to the scene of the accident, he saw scrapes on the road from the top of the van, although no photographs of them were taken.

Raymond Mulholland of the Illinois Department of Transportation was called by the Claimant s attorney as an adverse witness. Mr. Mulholland was a field maintenance engineer for the Illinois Department of Transportation who was responsible for the maintenance of the stretch of highway where the accident occurred. He testified that in order to maintain the shoulders of the highway, they would be dragged in the fall and spring. Dragging is done by a grading blade on the back of a tractor. One of the blades is placed on one end of the pavement, and the other blade off the shoulder. He testified that he would learn of drop-offs that needed to be repaired by his inspection or information from lead workers, foremen, maintenance workers, police, or motorists.

Upon being shown two of the photographs taken by the Claimants sister which showed the top of the soda can slightly below or even with the surface of the road, he testified that if he had observed a condition within his jurisdiction as depicted by those photographs, he would have taken action to correct the situation. He further stated that the conditions exhibited in the photograph were in fact dangerous conditions. He further testified that his records disclose that stone was added to the shoulder on March 3, 1987. When called by the Respondent as a witness, Mr. Mulholland testified that he inspected the roads weekly. After looking at the photographs he stated that a drop-off the size indicated in the photographs should have been seen. He indicated that he would have made a note of it and programmed it to be repaired. He stated that it was possible that in five weeks he might have not seen the problem, but he should have seen it. He did not testify that in fact he had seen it.

Mr. Mulholland first learned of the accident by receipt of a police report. He received the report within one to two weeks of the accident. He went out to investigate. The police report showed that the shoulder was soft, but no other defects were noted. Three photographs of the alleged accident scene which had been taken by the Department were admitted into evidence. One of these photographs showed a matchbook on the side of the road demonstrating a one- to two-inch offset from the edge of the pavement. Mr. Mulholland testified that picture No. 3 introduced by the Respondent (the matchbook photo), had probably not been taken at the same location as the two photographs previously referred to as taken by the Claimant’s sister. The engineer said that the transverse crack across the pavement exists in both of the Claimant’s exhibits, and that three photographs introduced into evidence by the Illinois Department of Transportation showed no such transverse crack. He said that the difference of location could have been from a few feet to 20 or 30 feet apart.

Mr. Douglas Harms, who was employed by the Department as a highway maintainer, also testified. In response to questioning by the Claimant’s attorney, he testified that most of his work was plowing snow and cleaning and removing debris. He testified that there was no snow on the ground on the day of the accident. He further testified that if he had seen a dangerous condition as depicted by the Claimant’s photographs, he would have notified his immediate supervisor, who would have then notified the engineer. When called as a witness by the Respondent, he testified that they frequently drove on the shoulder checking for missing reflective marker tapes on metal posts. They also look for defects on the shoulder of the road. If he had seen the situation as depicted in the photographs, he would have reported it. He did not recall if any of the stone which was placed on the road a month after the accident was placed near or at the scene of the accident.

Joseph Butler, an Illinois Department of Transportation highway maintainer, testified that if he had seen a drop-off as exhibited in the Claimants photographs, he would have returned to the yard and reported it. He also stated that he had seen worse drop-offs. He testified that he did not remember reporting any such defects. If he had made a report, it would have been by radio. He did not know if he had plowed any snow on Route 45, but testified that when plowing snow, he couldn’t see defects because they were covered up.

Obadiah Gathing testified similarly to Mulholland and Butler. Records indicated that he was in the area of the accident on December 17 and December 19, 1986. He did not remember seeing any defects at those times.

More interesting perhaps than the testimony of those witnesses who did testify were those who did not. Neither party called the State trooper who investigated the accident. Neither party called John Burnett of Kankakee who was listed as an eyewitness in the trooper’s report.

Obviously, the State has a duty to maintain the shoulder in a reasonably safe manner. However, there was absolutely no evidence produced at this trial that the State had either direct notice or constructive notice of the defect in question. This Court has repeatedly addressed shoulder drop-off cases, and rarely found liability. In Welch v. State (1966), 25 Ill. Ct. Cl. 270, this Court did find for the claimant. The situation there involved an extremely hazardous condition existing on the shoulder of the road. In a prior case, Lee v. State (1964), 25 Ill. Ct. Cl. 29, we denied a claim for an alleged defect consisting of a three- to four-inch difference in the level of the pavement and the level of the shoulder. We again denied a similar claim in Alsup v. State (1976), 31 Ill. Ct. Cl. 315, for a drop-off of four to six inches. In Hill v. State (1978), 32 Ill. Ct. Cl. 482, we denied a claim for an alleged defect which included a six-inch drop-off.

This Court did find liability in Siefert v. State (1989), 42 Ill. Ct. Cl. 8. In Siefert, this Court held:

“Most of the cases involving highway shoulders which have been decided by this Court up until now have held for the Respondent. Only in the case of Welch v. State (1966), 25 Ill. Ct. Cl. 270, was there a finding for the Claimant. That case involved an extremely hazardous condition existing on the shoulder of the road ' * In a case decided just before the Welch opinion, Lee v. State (1964), 25 Ill. Ct. Cl. 29, the claim was denied. In that case, the alleged defect was minimal, consisting of a three-to-four inch difference in the level of the pavement and the level of the shoulder * * ’. In the case of Alsup v. State (1976), 31 Ill. Ct. Cl. 315, the claim was again denied 0 ° * [and] the defect complained of was a four-to-six inch drop off between the level of the highway and that of the asphalt shoulder * ° \
In the case of Hill v. State (1978), 32 Ill. Ct. Cl. 482, the claim was denied 0 “ ° which included a six-inch drop off.” (Siefert, at 11-13.)

Further, in Siefert, the Court said:

“We hold that this type of accident, with resulting injuries, is reasonably foreseeable as a result of negligent maintenance of highway shoulders. We do not modify or overrule many previous decisions which hold that the State is not an insurer of each motorists safety on the highways 0 ° °. We hold that if tire facts in a case show that the State has caused a dangerous condition by neglecting to maintain the shoulders of the highway, after having had actual or constructive notice of the defect requiring such maintenance, it is reasonably foreseeable that an injury may result therefrom. If that dangerous condition of the shoulder is a proximate cause of an injury, that is sufficient to establish liability.” Siefert, at 14.

In this case, there was simply no proof offered that the State had any kind of notice of a defect. Lacking proof of notice, the State, not being the insurer, is simply not liable. In addition, there was insufficient evidence that a defect of sufficient magnitude existed. We deny this claim.


text:
    (No. 88-CC-0634
    Bobby Cox, Sr., and Judy Cox, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 20, 1993.

    Hasselberg & Rock, for Claimants.
    Roland W. Burris, Attorney General (Mary Elise Walden, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This case arises as a result of an auto accident which occurred on November 22, 1985, in Danville, Illinois. There is a four-lane bridge on State Route 150 in the city of Danville known as the Ellsworth Park Bridge. The Illinois Department of Transportation has responsibility for maintenance of this bridge, and the bridge is located approximately five or six blocks from the Department of Transportation storage area. The bridge is a very heavily used bridge in the Danville area.

The Danville transportation area is divided into three sections, the north, the central, and the south. The Ellsworth Park Bridge lies within the central section. A truck is assigned to each section.

On November 21 and 22, 1985, the weather forecast contained a 70% chance of sleet and/or freezing rain. A truck patrol was sent out on the evening of November 21, 1985, to watch for evidence of sleet or frost, and to treat the road after sleet or frost was discovered. The Department of Transportation policy was to treat bridges first because bridges would freeze before roadways. In addition, employees are to treat the most heavily traveled areas first.

At approximately 6:00 a.m., on November 22, 1985, frost started to develop on the bridges and several accidents were reported to the Illinois Department of Transportation.

A Department of Transportation employee who drove the truck assigned to the central section testified that he had treated the bridge at 5:10 a.m., although that was probably before moisture began to form. At approximately 6:45 a.m. on November 22, 1985, the accident in question occurred. The accident was serious, and there is no doubt that serious damages were incurred as a result of the accident.

The real question before this Court is whether a tort has been committed for which the State is responsible. The State undoubtedly has a responsibility to treat its bridges for moisture in a reasonable manner, and/or to warn of the condition of the bridges if they are not treated. However, the State is not an insurer of the condition of its highways. In this case, only 45 minutes elapsed from the time the first evidence of moisture accumulation occurred until the accident. There was simply not enough time, given the present set of facts, for which the State can be held liable for failure to treat or failure to warn. We therefore hold that the State did not fail to do an act which it had a reasonable opportunity to perform, and therefore is not liable for the unfortunate accident which occurred in this case. Illinois Ruan Transport Corp. v. State (1973), 28 Ill. Ct. Cl. 323; Schuett v. State (1984), 36 Ill. Ct. Cl. 62; Calvert & Williams v. State (1985), 38 Ill. Ct. Cl. 104; Pryor v. State (1983), 35 Ill. Ct. Cl. 741.

For the foregoing reasons, we hereby deny this claim.


text:
    (No. 88-CC-0945
    James Watkins, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 10, 1992.

    James Watkins, pro se, for Claimant.
    Roland W. Burris, Attorney General (Kimberly Dahlen, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against the State of Illinois for his alleged loss of funds arising from the charged negligence of the Respondent. Respondent allegedly permitted another inmate to identify himself as the Claimant for the purposes of making commissary purchases, thereby causing the loss of $192.02 from the Claimants trust fund.

The issue of “exhaustion of administrative remedies” was properly and timely raised by the Respondent at the outset of the hearing of this cause. Rule 6 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) provides as follows:

“As required by Sec. 25 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.24-5), the claimant shall before seeking final determination of his claim before the Court of Claims exhaust all other remedies, whether administrative, legal or equitable.”

Section 24 of the Court of Claims Act provides as follows:

“[Exhaustion of other remedies for recovery — Exception.] Any person who files a claim in the court shall, before seeking final determination of his or her claim exhaust all other remedies and sources of recovery whether administrative or judicial; except that failure to file or pursue actions against State employees, acting within the scope of their employment, shall not be a defense.”

The issue presented in this case is whether the Claimant must appeal from an adverse decision of the Institutional Inquiry Board before bringing a claim in the Court of Claims. In this case, when the Claimant discovered his money missing from the trust fund, he filed a grievance with the Institutional Inquiry Board on December 31, 1986. The Inquiry Board met and interviewed the Claimant on January 11, 1987. The Board then recommended that his grievance be denied. The Illinois Administrative Code provides that if the Claimant did not feel that his grievance had been resolved to his satisfaction, he could appeal in writing to the director or his designee. (20 Ill. Adm. Code, ch. I, sec. 504—850). This appeal procedure requires that the appeal be in writing. The director or his designee then reviews the grievance, the response of the Institutional Inquiry Board and the warden, and determines whether the grievance requires a hearing before the Administrative Review Board. The Administrative Review Board is appointed by the director to consider such appeals.

In the present case, the Claimant testified that he did not perfect any appeal from the adverse decision of the Institutional Inquiry Board. The Claimant was offered, but refused, a continuance of the hearing in order to enable him to appeal the adverse ruling of the Institutional Inquiiy Board.

The Respondent argues that the Claimant has not exhausted his remedies, and, therefore, this Court has no jurisdiction to consider his claim. In support of its position, the Respondent cites Morris v. State (1979), 33 Ill. Ct. Cl. 173, and Blackwell v. State (1984), 36 Ill. Ct. Cl. 328. In the Morris case, the claimant had filed a successful grievance with respect to a portion of his claim, but had failed to file a grievance as to his claim for funds. He then presented his claim for funds to the Court of Claims. This Court held that since the claimant had not pursued his claim for funds before the local board at Menard, he had not exhausted his administrative remedies available to him. Thus, the claim was denied.

In the Blackwell case, this Court observed that it appeared from the record that the claimant had not exhausted his administrative remedies before filing his complaint. This Court therefore dismissed that complaint. An additional ground for the decision in the Blackwell case appeared to be that the complaint had been drawn in an unintelligible manner.

This Court has previously interpreted the provisions of the Court of Claims Act and the Court of Claims Regulations to require exhaustion of remedies to apply and be nondiscretionary. There are times when we have not required claimants to exhaust, or to pursue, remedies which are unreasonable due to a small chance of success. However, those exceptions clearly do not apply in the present factual situation. Claimants who are inmates of correctional institutions in the State of Illinois must seek review by the Administrative Review Board of any adverse decisions of the Institutional Inquiry Board before they bring a claim to this Court.

Therefore, we do not need to reach the merits of this particular claim regarding the loss of trust funds. Because the Claimant failed to appeal an adverse decision from the Institutional Inquiry Board, he is precluded from bringing this claim. This claim is therefore denied.


author: Burke, J.

text:
    (No. 88-CC-0993
    Cletus Wall and Mary Lou Wall, Claimants, v. The State of Illinois, Respondent.

      Order filed November 9, 1992.

    C. Michael Witters, for Claimants.
    Roland W. Burris, Attorney General (Phillips McQuillan, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Burke, J.

Claimants, Cletus Wall and Maty Lou Wall, seek to recover from Respondent for its alleged negligence, as a result of which Claimants’ cinder block basement wall collapsed due to flooding. The house is situated on the east side of SBI Route No. 1 on the south side of the Village of Patton, Wabash County, Illinois. The Claimants owned their home since 1980.

Claimants contend that on May 26, 1986, as a result of a five-inch rain over a period of several hours, water escaped from Respondent’s surface water collection system and was allowed to “pond” against Claimants’ home, thereby resulting in the collapse of the basement wall. Claimants allege that this surface water drainage system within the right-of-way of SBI Route No. 1 failed or was inadequately designed and was the proximate cause of the property damage sustained by Claimants. More specifically, Claimants contend that the Respondent

(1) failed to properly maintain the drainage system to prevent its failure during periods of high water movement;

(2) installed and operated a drainage system inadequate to transport the amounts of water known to accumulate in the area the system was intended to serve; and

(3) operated its drainage system over and across Claimants’ land without authority and without notice to Claimants.

Respondent denied the allegations.

When Claimants acquired their home, there was a 40-foot long open ditch behind their house, running in a generally east and west direction toward a railroad embankment. Claimants testified that two 12-inch clay pipes emptied into the west end of the open 40-foot ditch. The ditch was approximately four feet wide and three feet deep. Claimant Cletus Wall stated that upon acquiring the property he closed up the 40-foot ditch, but connected a 16-inch pipe to the ends of the 12-inch lateral clay pipes and into a culvert tile under the railroad tracks at die rear of his property. Claimant then filled up the entire ditch. The railroad embankment at the back of Claimants’ property acted like a dam. In addition to running the 16-inch pipe to the head of the ditch, Claimant also ran two four-inch flexible plastic lines from ground level into the culvert under the railroad tracks.

Respondent installed the surface water collection system draining the entire south half of the Village of Patton, Illinois, in 1957. All of the water collected by the system collected in a manhole located directly in front of Claimants’ home on the east side of SBI Route No. 1. Respondent connected the manhole to two preexisting 12-inch clay tiles which had been installed running in a generally east and west direction through Claimants’ property and installed by persons unknown. Respondent’s engineers testified that the twin 12-inch clay tiles had not been installed by the Respondent. Respondent disclaims any responsibility whatsoever for maintaining the clay tiles, notwithstanding the fact that Respondent’s 1957 installation of manhole No. 7 utilized the clay tiles in moving the water from the manhole to the east through Claimants’ property.

Robert Brinkopf, a maintenance field engineer for the Illinois Department of Transportation who supervised Wabash County, was made aware of the flooding conditions in Patton. He stated that the drainage system was designed to drain the water from the center of Patton south and consisted of a combination of 12- and 15-inch concrete pipe drains installed laterally down the highway to various inlets which finally connect to a three- by two-foot concrete box culvert beneath the highway which drained into the two vitrified clay pipes going through the Claimants’ property. The only other way that water could move from the south side of Patton was over the surface of the ground. The Claimants’ property lying east of the highway naturally received water from land west of the highway due to the topographic features of the land. Respondent did not install or maintain the clay pipes and did not assume responsibility for them. Brinkopf stated that at the time of the incident in question, the water overflowed the roads and that there was substantial water all over Patton. Brinkopf also testified to the plans of the highway and drainage at the location. He stated that drainage was accomplished by open ditches along either side of the highway through culverts under the highway and through open ditches easterly through pipe culverts under the railroad. Department records showed no evidence that the State of Illinois installed the lateral clay pipes and the State did not use vitrified clay pipe in road construction around the Village of Patton. The State never had an easement across the Claimants’ property. The clay pipes were in existence prior to the installation of the manhole. The westerly opening of the clay pipes was evidently on State right-of-way or at the edge of State right-of-way. The State did nothing to divert the water to Point 7 that was not already going to Point 7. The closing of the open ditch reduced the amount of surface water that could have gotten away at the Claimants’ location, and there was a significant difference in the amount of water that could be moved because of the lack of the open ditch. Mr. Brinkopf testified that there was no indication that the clay pipes collapsed or contributed to Claimants’ problem.

Claimant Cletus Wall testified that when he moved to the property he knew there was a drainage tile from the manhole running across his property but he did not know where it went or how it ran. He testified there was an open ditch on the back 40 feet of his property between the drainage tile and the railroad “dam” that began approximately 20 feet behind the back of his house and ran to the railroad track where there was a culvert. Claimant knew that pipes from the direction of the manhole emptied into the ditch. Claimant closed up the ditch with a sewer pipe and filled up the entire ditch. The sewer pipe was 16 inches in diameter. Claimant also totally filled in and blocked off the railroad culvert and put the 16-inch line into the railroad culvert. Claimant also ran two four-inch lines inside the railroad culvert to a grading by the railroad system dump where the ditch was filled in.

Claimants called Michael Gill, a registered professional engineer. Gill testified that the storm sewer system would have affected the rate of flow, the pressure of flow and the manner of flow of surface water from the area. Gill said the pipes have a lower friction and would let the water flow faster. Gill testified that the system would have a tendency to allow water to back up because the water could not get out of the manhole fast enough through 12-inch clay tiles. As the water backed up, it would raise the water pressure. He further stated that the sewer system would increase the velocity of the water, and that if the system was full there would be an overflow of surface water which would flow east toward the railroad embankment. The open ditch would have been a more efficient carrier of surface water. Gill said that the reduction of the pipes from two 12-inch laterals to one 16-inch lateral would adversely affect the drainage flow. Gill admitted that the presence of the open ditch at the back of Claimants’ property would have significantly alleviated the drainage problem in this area. Gill testified that he made no study in regard to the collapse of the Claimants’ basement wall and was not aware that the basement wall was a concrete block structure. Gill stated that he had knowledge of concrete block basement walls caving in from time to time because of an accumulation of surface water, but that he was not a structural engineer and did not work with buildings and would not be comfortable testifying to matters pertaining to structures or buildings. Gill testified that he had no idea and could not render an opinion to a reasonable degree of engineering certainty as to what caused Claimants’ basement wall to collapse. Gill further testified that whoever eliminated the ditch contributed to the water problem.

Robert Benham, an Illinois Department of Transportation employee with 20 years of experience, was called to Patton on the morning in question and when he arrived he found two feet of water on the pavement at the north end of town. Although Benham had lived in Wabash for 47 years, he had never seen water standing or blocking the State highway on the north end of the Village of Patton to the extent noted on the date in question. He was familiar with the open ditch behind the Claimants’ property, and knew that it had been filled in. Ben-ham testified that when he observed the area around Claimants’ house, there was water standing across the pavement, and water standing over manhole No. 7 which was lower than the pavement. The manhole cover was estimated to be \V% feet beneath the surface of the highway. The entire Village of Patton was flooded.

Claimants failed to show that anything the State did, or failed to do, in respect to the water drainage system at the location in question caused or contributed to the damage sustained by the Claimants. Although there is evidence that the design of the drainage system installed by the State may have caused the water to be delivered to the area of Claimants’ home with greater velocity, there is no showing that this phenomenon caused or contributed to cause a condition which resulted in Claimants’ damage. Furthermore, Claimants’ action in closing the open ditch that ran laterally across their property to the railroad dam significantly reduced the runoff of water from the area of Claimants’ home.

This Court has previously held that the action of a claimant in impeding the natural flow of water across his property is justification for denying his claim based on flood damage. (Wells v. State (1953), 21 Ill. Ct. Cl. 384.) Likewise, in Forbeck v. State (1980), 33 Ill. Ct. Cl. 86, this Court considered that the actions of the claimant in clearing land and removing natural erosion retardants could be considered in denying claimant’s complaints for flood damage to his property. Claimants actions in filling or rerouting natural drainage ways were considered in denying claimant’s complaint.

Claimants failed to establish that any action on the part of Respondent was the proximate cause of Claimants damage. In Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328, the court stated:

“Liability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause can only be established when there is a reasonable certainty that Defendant’s acts caused the injury. (Citation omitted.) No liability can exist unless the Defendant’s alleged negligence is the legal cause of the Plaintiffs injury, and if the Plaintiff fails to establish the element of proximate cause, she has not sustained her burden of making a prima facie case and a directed verdict is proper.” 48 Ill. Dec. 297, 300.

In Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201, 108 Ill. Dec. 624, the court stated:

“In order to prevail on a claim of common law negligence, a Claimant must show a duty owed by the Defendant to the Plaintiff, a breach of that duty, and an injury proximately caused by the breach. [Citation omitted.] ° * * Liability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause can only be established when there is a reasonable certainty that the Defendant’s acts caused the injury.” (Emphasis added.) 108 Ill. Dec. 624, 630.

The Illinois Drainage Code (Ill. Rev. Stat. 1987, ch. 42, par. 1 — 1 et seq.) provides that a landowner may not willfully or intentionally interfere with any ditches or natural drains crossing his land in such a manner that such ditches or natural drains shall fill or become obstructed with any matter which materially impedes or interferes with the flow of water. See Ill. Rev. Stat. 1987, ch. 42, par. 2 — 12.

Finally, the Illinois Supreme Court has stated that where water from one tract of land falls naturally upon the land of another, the owner of the lower land must suffer the water to be discharged upon his land, and has no right to stop or impede the natural flow of the surface water. See Gough v. Goble (1954), 2 Ill. 2d 477.

It is therefore ordered that this claim is denied.