text:
    (No. 93-CC-2145
    Boyd Brothers, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed November 1, 1994.

      Opinion filed November 30, 1998.

      Order filed July 14, 1999.

    Husen & Eppenberger (Stephen D. Gay, of counsel) and Gary Weintraub, for Claimant.
    Jim E. Ryan, Attorney General (Lawrence C. Rippe, of counsel) and Sorling, Northrup, Hanna, Cullen & Cochran (Patrick V. Reilley, of counsel), for Respondent.
   ORDER

Frederick, J.

This cause comes before the Court on Claimants renewed motion for summary judgment and Respondents motion for summary judgment on all claims for extras in area other than the northeast quadrant, and on the issue of Claimants claim for compensation for idle equipment, and the Court having reviewed the pleadings, affidavits, depositions, exhibits and arguments, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That the Abandoned Mines Lands Reclamation Council, “AML,” designed the reclamation plans for the St. Ellen Mine site in St. Clair County, Illinois.

2. That the AML plans which were incorporated into the contract failed to take into account the Dunn Geoscience Report, failed to correctly incorporate the AML’s own core sample data, the cooperative wildlife service data, and failed to include the project manager’s posterboard which indicated slurry that did not appear on the AML plans.

3. That article 102.05 of the Standard Specifications indicated that the subsurface information set forth in the AML plans represented the best knowledge of the Department as to the location, character or quantity of the materials encountered.

4. That Respondent failed to provide Claimant with the Dunn Geoscience Report, the posterboard and soil core sample chart and results prior to the bid acceptance although requested to do so by Claimant. Standard Specifications, article 102.05 indicated that, all soil information upon which the design was prepared was available for inspection by bidders.

5. That Respondent drafted the contract.

6. That under the terms of the contract, the Claimant was to complete the work in accordance with the plans and specifications.

7. Article 105.04 required that all work performed and all materials furnished shall be in reasonably close conformity with the lines, grades, cross-sections, dimensions, and material requirements, including tolerances, shown on the plans or indicated on the specifications.

8. That articles 101.24 and 104.01 indicate that the plans and specifications show the location, character, dimensions, and details of the work to be done and prescribe a complete outline of the work which the contractor undertook to do to satisfy the contract.

9. That the plans prepared by the project manager differed materially from the actual work to be done in that the soil lines in the plans were substantially different than those actually encountered; there was substantial slurry encountered that was not shown on the plans and specifications; and there were buried levees and dams now shown on the plans.

10. That the Claimant’s inspection of the site prior to bidding was reasonable in light of the conduct of the Respondent.

11. That AML failed to obtain the right-of-way for the Ahring property prior to letting the contract in violation of the terms of the contract.

12. That the Dunn Geoscience Report was reasonably accurate in regard to the conditions at the site.

13. That because of the defective plans, the following additional work was required:

(a) In the north quadrant, approximately 258,425 cubic yards of mine refuse were below the grade indicated on the AML plans;

(b) In the west area, approximately 146,403 cubic yards of mine refuse material were below the grade indicated on the AML plans;

(c) The moisture content of much of the material to be excavated was materially higher;

(d) That the amount of wet material to be handled above and below the AML plan lines was materially increased;

(e) Different methods were required to obtain and haul the refuse because of the changed character of the refuse than could have been anticipated from the AML plans;

(f) Hauling distances were increased and top loading was required because of the character of the refuse which could not have been anticipated from the AML plans;

(g) Drainage as called for in the AML plans could not be achieved because soil lines were not accurate;

(h) That the delays in obtaining the right-of-ways delayed implementing a drainage plan, required pumping, and allowed for trapping of moisture.

14. On March 12, 1992, Claimant gave AML notice in writing that the actual site conditions were materially different from those shown on the AML plans.

15. That Respondent by letter directed Claimant to remove all refuse above the upper surface of the soil.

16. That Claimant gave the notice through letters and progress reports required under the changed conditions clause of Standard Specifications, article 104.04.

17. That Respondent materially changed the scope of the work under the terms of the contract.

18. That Respondent required Claimant to do substantial extra work as defined by Standard Specifications, article 101.15.

19. That the extra work was required because the work differed materially in design and required a change in the type of construction.

20. That adjustments in compensation and contract under these circumstances are to be made in accordance with articles 104.03 and 108.09.

21. That the AML’s requirement that Claimant remove all refuse above the upper surface of the soil was a significant change in the character of the work.

22. That the character of the work as altered differed materially in kind and nature from that involved or included in the original proposed construction.

23. That AML had written án actual notice of the changed conditions and character of the work under the contract.

24. That the parties were unable to agree on a basis for an adjustment of the contract price.

25. That in the letter to Claimant to continue work, AML indicated article 109.03 of the Standard Specifications addresses the issue of how payment is to be made for increased or decreased quantities of contract unit pay price.

26. That Respondent refused to adopt a contract and payment adjustment.

27. That the contract documents affirmatively represented the subsurface conditions which form the basis of this claim.

28. That the contractor acted as a reasonably prudent contractor in interpreting the contract documents.

29. The contractor reasonably relied on the subsurface conditions in the contract documents.

30. The subsurface conditions actually encountered differed materially from the subsurface conditions indicated in the contract.

31. The actual subsurface conditions were reasonably unforeseeable.

32. That Claimant had excess costs solely attributable to the materially different subsurface conditions.

33. That article 109.04 requires additional compensation to be paid by the force account method unless the parties agree otherwise.

34. That AML denied Claimants claim for extra compensation on March 26, 1992.

35. On June 2, 1992, AML rejected Claimants contentions of differing site conditions and rejected the force account billings.

36. That Claimant is entitled to a summary judgment as to liability as a matter of law.

37. That Respondent is not entitled to a summary judgment as a matter of law.

38. That Respondent breached the agreement in denying Claimants claims for extra compensation and rejecting Claimants contentions of differing site conditions and failing to pay Claimant for the extra work.

39. That in light of the substantial extra work required, the amount of work actually completed by Claimant, the lack of appropriated funds available to pay Claimant for work done and to be done, and Respondents rejections of Claimants claims for extra work, Claimant was justified in Claimant’s decision to stop working on the project.

40. That the problems with this project are all directly related to AML’s erroneous plans and failure to provide Claimant with requested documents.

41. That there are no material, undisputed issues of fact as to Respondent’s liability for breach of the contract.

42. That there are material issues of fact remaining as to damages, particularly as to whether damages are limited to the northeast quadrant, the idle equipment issue, and the method of computing damages.

43. That there may also be an issue as to requiring the State court proceeding to be completed before issuing a final opinion in this Court.

Therefore, it is ordered:

A. That summary judgment as to liability only for breach of the contract is entered in favor of Claimant.

B. That the motions for summary judgment filed by Respondent are denied.

C. That the cause is remanded to the commissioner assigned to the case with directions to set the cause for trial on the issue of damages only.

D. That the Commissioner is directed to hold the hearing on damages at the Commissioner’s earliest convenience without concern for the State court proceeding.

OPINION

Frederick, J.

Claimant, Boyd Brothers, Inc., filed its complaint in the Court of Claims sounding in breach of contract on February 23, 1993. On November 1, 1994, an order granting Claimant’s motion for summary judgment as to liability only was entered by the Court. The damage issues were tried before Commissioner Michael Kane. The Court has considered all of the evidence and testimony presented and all of the briefs and arguments of the parties.

The Facts

The St. Ellen Mine site is located in St. Clair County on the western edge of the City of O’Fallon, Illinois. The site covers two hundred acres. Mining operations at the St. Ellen site had left a scarred surface upon which there had been deposited approximately 2.8 million cubic yards of mine refuse. On November 1, 1991, the Illinois Abandoned Mine Lands Reclamation Council (hereinafter referred to as AML) put out for bid a project to rehabilitate the St. Ellen site. The site had become newsworthy due to safety concerns raised by local residents and by the possibility that air and water quality were being affected by the material on the site. The St. Ellen Rehabilitation Project was principally designed by AML employee, Thomas Nelson, who also acted as AML’s project manager. Documents furnished to the bidders included a 77-page schedule of drawings prepared by Mr. Nelson. The completed project would leave a large mound of mine refuse covered with soil and grass, a pond, and grasses and other vegetation at the original soil level. The winning bidder would have to move or remove much of the refuse. The State’s contract documents did not distinguish between the types of mine refuse, even though there are two types of refuse recognized within the industry. The first type of refuse is gob, a course refuse usually deposited in large steep piles. Gob results from the coal sorting process. The second type of refuse is slurry, a fine silty material which typically remains after the coal washing process is completed. The operations to remove these two types of refuse differ greatly and it is clearly more expensive to remove slurry than gob.

The contract documents included the contract text, the special provisions, the plans and specifications, and the Standard Specifications for Road and Bridge Construction. In the contract, AML stated that it had acquired all of the rights-of-way from adjoining landowners, a representation which was not true.

Seven bids were submitted on the project ranging from $3,346,053 to $6,177,839. The low bidder on the job did not receive the contract due to concerns about its financial ability to complete the job. The Claimant submitted the second lowest bid and that bid was accepted by AML in an award letter to Boyd Brothers, Inc. dated December 24, 1991. On February 3, 1992, AML and Boyd Brothers, Inc. entered into a contract for the performance of the work at the St. Ellen Mine site.

The work on this project began in February of 1992. In December of 1992, the Claimant ceased work for the winter months and in February of 1993, this action was filed. Claimant refused to return to work in the spring of 1993 due to the conflict regarding payment.

At the completion of discovery, Claimant moved for summary judgment on the issue of liability. On November 1, 1994, this Court entered an order granting summary judgment in favor of the Claimant and against the Respondent on the issue of liability for breach of contract. On November 24, 1995, this Court entered a second order upon Respondents motion for reconsideration clarifying its previous grant of summary judgment and stated therein that, “Summary judgment is to liability only. The measure of damages, amount of damages, areas of damages, type of damages, and scope of damages are all unresolved issues wherein testimony will be required to resolve those issues.” Those orders were based in part upon the failure of the Respondent to disclose during the bidding process certain information in its possession which reflected the accurate sub-surface conditions. It is clear that the Respondent failed to disclose to the bidders a document referred to as the Dunn Geoscience Report, a drill and material analysis prepared in February of 1977 and utilized by various staff members of AML prior to 1991. Had the information been disclosed to the bidders, Claimant would have known that there was a slurry pond underneath the gob pile in the northeast quadrant of the site, a fact that Claimant ultimately discovered during the work in March of 1992.

It is noteworthy that throughout the claim process but before this cause of action was filed, the State had agreed that additional compensation was warranted. The amount of that compensation and the method by which to compute the amount were the unresolved issues between the parties. What began as a dispute over the proper method of payment for additional work in the northeast quadrant evolved into a dispute regarding the whole site.

Refore reviewing the various issues of damages, we must discuss the previous two court orders. The first order directed the commissioner to hold a hearing on the issue of damages only, but did not specify upon which claims liability was being directed. However, the order of February 24, 1995, deleted a substantial portion of language and certain findings for the Claimant. Accordingly, the area of damages, measure of damages, and scope of damages were left unresolved.

It is Claimants position that Claimant is entitled to damages under four separate categories. First, Claimant beheves it is entitled to compensation because of a change in the scope and character of the work. Second, Claimant seeks compensation because of the State’s failure to obtain the necessary consents of adjoining landowners. Third, Claimant seeks compensation due to the problems caused by the State’s failure to disclose the existence of the slurry pond which caused Claimants equipment to sit idle for lengthy periods, thereby causing Claimant damages. Finally, Claimant beheves that all of the aforesaid problems caused the Claimant additional consequential damages which are compensable.

Analysis

In order for Claimant to complete the work specified in the contract, it was necessary to have the consent of the adjoining landowners for the use of their property for getting on and off the job site in addition to drainage functions. Although AML represented to the bidders that it had obtained all consents necessary from the adjoining landowners, that was not the case. Specifically, there were two property owners at the southwest end of the site who had not consented to the State’s use of their land as late as April of 1992. A small portion of this claim is based on the State’s failure to obtain those consents in a timely fashion. However, it appears that there are no compensable damages as a result of the State’s failure. The Roach property caused no delay, while the delay attributable to the Ahring property caused the Claimant no damage. The pre-construction meetings between the parties which were held simultaneously with these problems reveal no significant construction sequencing difficulties caused to the Cl aim ant. Additionally, Claimants own job superintendent testified that Claimant suffered no damages due to the delay. Therefore, this portion of Claimant’s claim should be denied.

The work contemplated in the contract included the excavation of mine refuse, the construction of a disposal mount, and the landscaping of much of the site. The eastern portion of the site contained the slurry pond hidden by the gob pile. The northwest section of the site, which was the largest of the three sections, contained a 14-acre pond of water and obvious wet materials. The southeast section was to contain the disposal mound and required the least amount of the contractor’s attention. Claimant contends that the changed conditions which this Court has previously referenced affected the complete site and, therefore, the Claimant should be compensated for work done on changed conditions as to the whole job. The State’s contention is that the only area containing undisclosed slurry was in the northeast quarter and any damages for changed conditions should be essentially limited to that quadrant. Additionally, the Claimant attempts to utilize a force account billing method for the claimed changed conditions which the Respondent rejects. It is the State’s contention that the Court should look at the Claimant’s internal cost coding to determine the true cost of the changed conditions. The Court points out that the contract sets forth, in article 104.00 of the special provisions, the method of compensating Claimant for additional work for the unanticipated quantity of slurry in the northeast quadrant:

“If the alterations of changes in quantity significantly changes the character of the work * * * an adjustment excluding loss of anticipated profits, will be made to the contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If the basis cannot be agreed upon, then an adjustment will be made either for or against the contractor in such amount as the engineer may determine to be fair and equitable. Special provisions control over the standard specifications in the case of a conflict.”

In evaluating the Claimant’s position with regards to changed conditions, it is essential to contrast the observations of the northeast quadrant with that of the west and southwest quadrants prior to the job being bid. Slurry and acid water on the western half of the site were plainly visible to anyone who inspected the west side prior to the bidding of the contract. The plans and specifications also indicated that vehicular traffic would be limited due to steep grades and soft surface conditions. Steven Boyd, one of the owners of the Claimant company, observed the conditions while preparing the Claimant’s bid and conceded that the west side was extremely wet. Additionally, contractors who bid the job against the Claimant had an opportunity to inspect the site. Their observations persuaded the potential bidders that the entire west half of the site would have to be top-loaded. Also, the large amounts of slurry would create problems for the disposal mound to be built on the southeast portion of the property.

Slurry excavation requires a totally different process than the removal of gob. Because of its consistency, the slurry must be top-loaded, a much more expensive process than other methods of removing mine refuse. The differences between the northeast quadrant and the westerly quadrant could be seen by the naked eye and it is reasonable to conclude that the more likely alternative for removal of the waste on the west portion of the site was the top-loading method. After all of the other bidders examined and tested the western half of the site, they determined that due to the large amount of wet slurry, the entire western half would have to be top-loaded and those bidders considered that in the computation of their bids. The inspection done of the entire site by the Claimant proved to be inadequate. AML’s failure to disclose the slurry pond in the northeast quadrant was the fault of AML, but the erroneous conclusions about the method of removal on the western half of the site which factored into Claimants bid were the product of Claimants own inspection and the fault involved attributable to the Claimant.

What makes this case even more complicated is the fact that the soil lines depicted on the plans were wrong. A substantial portion of mine refuse was encountered below the lines and grades shown in the AML plans. These mistakes were not only in the northeast quadrant but also on the westerly quadrant. Additionally, there were undisclosed underground levies and dikes on the west portion of the site. A combination of these factors affected the moisture content of the materials encountered below the lines and grades shown on the plans which, in turn, affected the cost of moving the materials. The estimated quantity of mine refuse to be moved proved to be substantially correct. However, the directive in March by AML to remove all waste to the soil lines still constituted a significant change in the character of the work to be performed by the Claimant, in light of the erroneous soil lines on the plans. The fact that the quantities ultimately moved proved to be substantially accurate does not diminish the fact that the character of the work changed significantly.

After carefully and tediously reviewing all of the evidence, the Court finds the Claimant should be awarded one million six hundred thousand dollars ($1,600,000) for the additional work on the St. Ellen project. This amount is based on the forced account method which was utilized for other extra work during the project. During the work, AML indicated that Claimant would be compensated under the force account method if the parties were unable to agree on either a lump sum or unit price basis, as is the case here. The standard proposed by the State in its arguments provides little or no guideline to the trier of fact in determining adequate compensation for the Claimant.

The Claimants request for damages based on idle equipment, while valid, is inflated. The uncertainty at the site as to what conditions would be encountered caused Claimant to maintain idle equipment at the site. Further complicating matters was AML’s refusal to grant stop work requests or redesign the job after the changed conditions were discovered. Under these circumstances, it is appropriate that payment be made for the Claimant’s inability to use that equipment. After carefully reviewing all of the evidence, we find that Claimant should be awarded the amount of six hundred thousand dollars ($600,000) for its idle equipment claim.

Claimant maintains that as a result of AML’s failure to make payments on the St. Ellen’s job, Claimant lost its bonding capability and its ability to do further public or governmental work. Claimant also relinquished its IDOT pre-qualification status. Based on the evidence presented, we find that the Claimant did lose $323,425 as a result of its inability to procure the Marion Floodway Project as a general contractor. Claimant actually did the same work without being designated as the general contractor, but suffered the above loss. Any additional claims of consequential damages are too tenuous to require compensation from the State.

Claimant also maintains that the State has wrongfully withheld monies from Claimant for work done. We find that Respondent and Respondent alone breached the contract. The $184,000 that has been withheld from the Claimant for work completed and approved by AML should be paid to Claimant. These funds have been segregated and held in an account since 1992. These monies should have been paid to the Claimant.

We further find that Claimant has proven no other damages by a preponderance of the evidence. However, before the Court can make a final award, there are several questions that must be answered by the parties.

The first question to be answered is whether the State court action filed by the State against Boyd Brothers, Inc. is still pending. At an earlier point in the litigation, this Court was advised that the State had filed an action against the Claimant in State court arising out of the St. Ellen site contract. While this Court may have been able to hear the States claim under our recoupment jurisdiction, the State chose to file suit in State court. (705 ILCS 505/8(e).) Pursuant to 74 Ill. Adm. Code 790.60a, any complaint filed or pending in the Court of Claims shall be continued generally, subject to the provisions of section 790.70 until the final disposition of all other claims or proceedings arising from the same occurrence or transaction.

This case is very different from the usual case as the State filed the action in State court. Most exhaustion of remedies issues involve other claims by the Claimant. We do not decide here whether we can or cannot enter a final decision under the procedural facts of this case. If the State court action has concluded, there is no issue of exhaustion of remedies. If the State court proceeding is still pending, we will address the exhaustion issue in a separate order. The exhaustion issue also may be moot if the State court action involves the same parties and issues as decided herein and the State court enters final orders regarding the case.

The second inquiry to be answered must be answered in any breach of contract case. The Court requires information as part of the record, indicating that sufficient funds were appropriated to have covered the breach. (Lowenberg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) The Court requires the information as to the amount appropriated for the project, the total amount which lapsed or which is still in accounts, and the amount which could have been transferred to pay the damages we have found in this case. Until these questions are answered to the Court’s satisfaction, the Court is not able to make an award. First National Bank of Springfield v. State (1990), 43 Ill. Ct. Cl. 1.

The third issue is whether Claimant filed for bankruptcy protection and, if so, the status of any bankruptcy affecting Claimant and the distribution of any award. At earlier proceedings, the Claimant indicated it may be filing for bankruptcy protection.

Order

Based on the foregoing findings, it is the order of the Court as follows:

A. That Claimant and Respondent shall each fully advise the Court in writing of the status of the State court proceeding within 21 days of the date of this order.

B. That Respondent shall notify the Court in writing of the following information within 21 days:

(1) The amount of funds which lapsed for this contract;

(2) The amount of funds currently held by the State to pay for work completed by Claimant but not paid;

(3) That amount of funds which could have been transferred from other fine items to pay the $2,707,425 damages the Court has found that Claimant has proven by a preponderance of the evidence.

C. That Claimant should notify the Court within 21 days as to whether Claimant has filed for bankruptcy protection since this claim was filed, and if so, the status of such bankruptcy, including the case number, court in which it was filed, and the name and address of the trustee.

ORDER

Frederick, J.

This cause coming on to be heard on the Claimants petition for rehearing, the Court being fully advised in the premises, the Court finds:

On November 1, 1994, we granted Claimants motion for summary judgment as to liability only. We remanded the case to Commissioner Michael Kane for a trial as to damages. On February 24,1995, we entered an order which clarified our previous order, and left open the area of damages, measure of damages, and scope of damages. On November 30, 1998, we filed an opinion which (1) denied Claimant’s claim for damages for failure of Respondent to obtain consents from adjoining landowners; (2) found Claimant entitled to $1,600,000 for additional work on the St. Ellen project; (3) found Claimant entitled to $600,000 for damages based upon idle equipment; (4) found Claimant entitled to $323,425 for loss of a contract because it lost its bonding capability because of the State’s failure to pay; (5) found Claimant entitled to $184,000 in retainage wrongfully withheld from Claimant; and (6) denied any other damages. The opinion ordered (1) the parties to advise the Court of the status of an ancillary circuit court proceeding; (2) the Respondent to notify the Court of the status of lapsed funds to pay this claim; and (3) for the Claimant to notify the Court of any pending bankruptcy actions instituted by Claimant. The opinion contemplated a total award of $2,707,425. The opinion, however, was not a final order inasmuch as the Court needed the information requested in order to determine if sufficient funds lapsed that could be used to pay any award.

Both parties complied with the opinion and supplied information to the Court. Claimant filed a petition for rehearing which will be discussed later in detail. Oral arguments were held on May 10, 1999, on the petition for rehearing and other matters related to this case.

The Court is now prepared to enter a final order in this matter.

At oral argument, Respondents counsel assured the Court that the Respondent would dismiss the State circuit court action upon entry of a final order in this cause. The Respondent filed a written response to the opinion which reported that (1) $16,997.86 lapsed from funds appropriated for the St. Ellen site; (2) the amount of $180,386.47 is held in an unnamed bank trust account as retainage on the St. Ellen site; (3) the amount of funds available to pay this claim is $10,419,441.71, which represents the sum of $16,997.86 lapsed from the 1992 construction grant, and the amounts remaining in the 1995-1998 simplified grants from the U.S. government. Payment of the later funds, however, are subject to approval from the United States Office of Surface Mining. The Claimant reports that it has not filed for bankruptcy and no bankruptcy proceedings are pending against it, but that it is effectively out of business.

The petition for rehearing asserts that (1) the Court misapplied the forced account method of calculation of the extra work claim (base damages) and should award $3,130,129 for these damages; (2) the Court erred in finding that the Claimants examination of the site was inadequate; (3) the idle equipment award should be $1,955,344.32; (4) the Court erred in denying an award for failure of Respondent to obtain consents from adjoining landowners; (5) the Court did not address additional areas of damage; (6) the Court did not award interest; and (7) the Court should award damages to compensate Claimant for a judgment that was entered against it and in favor of a landowner for damages caused by removal of too much soil. Claimant seeks a total of $9,023,797.

Respondent opposes the petition for rehearing, asserting that “while each party may disagree with the Courts calculation of the award,” the petition for rehearing should be denied.

We have carefully reexamined the record and the arguments of the parties. As is the usual case in matters of this type, the calculation of damages, and the allocation of fault is less than an exact science. Upon reexamination, we believe that the idle equipment award should be increased. The total amount sought in the petition for rehearing for these costs is $1,955,344. Our opinion would award $600,000 or 31 percent of the amount claimed. Reconsidering the record, and recognizing the inability to determine a mathematically precise amount, we find that the record supports an award equal to 55 percent, or $1,075,439.

We have considered the other points raised in the petition for rehearing, and have determined that they should be denied.

It is therefore ordered, adjudged and decreed that, in full and complete satisfaction of this claim, Claimant is awarded the sum of three million one hundred ninety six thousand two hundred forty-eight and 33/100 ($3,196,248.33) dollars, such award consisting of the following:

1. Claimant is awarded $16,997.86 from the lapsed funds.

2. Claimant is awarded $180,386.47 (plus any accrued interest) in the bank trust account.

3. Claimant is awarded two million nine hundred ninety-eight thousand eight hundred sixty-four and no/100 ($2,998,864) dollars payable from funds remaining in the 1995-1998 simplified grants from the U.S. government, subject to approval from the United States Office of Surface Mining.


source: Caselaw Access Project

author: Mitchell, J.

license: Public Domain

text:
    (No. 93-CC-3412
    Patricia Kipping, Claimant, v. Illinois Department of Employment Security, Respondent.

      Order filed December 22, 1999.

    Crowder & Scoggins (Alan Pirtle, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Brian J. Dees, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

The Claimant, Patricia Kipping, brings this action for compensatory damages pursuant to the Illinois Court of Claims Act, 705 ILCS 505/8(d). The Claimant’s action is in tort for personal injuries suffered as a direct and proximate result of negligence committed by the Respondent, the State of Illinois. A hearing was held by this Court on May 4,1998.

The Claimant was an invitee at the Department of Employment Security, hereinafter referred to as “the Department,” in Relleville, Illinois. Claimant arrived at the Department around 10:00 a.m. on the rainy morning of September 21, 1992, accompanied by her husband, Stanford Kipping. There is only one entranceway into the Department building and only one door in which persons can enter, the right-hand door. The left-hand door is locked and has a sign on it instructing persons to use the other door. Normally there is a heavy weather mat placed behind the right-hand door in the entranceway to allow persons entering to wipe their feet and keep the entranceway reasonably dry.

Claimant testified that, upon approaching the entrance, Stanford Kipping opened the right-hand door for his wife, Patricia Kipping, who took a step with her right foot, then another with her left which slipped out from underneath her resulting in her left knee hitting against the tile floor. Patricia Kipping further testified that the weather mats had been over behind the locked left-hand door and there was a wet spot on the tile in the entrance-way behind the right-hand door at the time of the incident. Stanford Kipping also testified that, at the time of Claimants fall, the mats had been positioned over to the left of the right-hand door.

After getting up off the floor, Claimant went into the office of Dr. Edith Crisman, office manager of the Department. Claimant filed an accident report with Dr. Crisman, then proceeded to Belleville Memorial Hospital for x-rays. Nothing was found to be broken in Claimants left knee, but there was an abrasion, bruising and swelling. Claimant was advised to continue coming to the Memorial Hospital as well as Red Bud Hospital for physical therapy on her knee.

Claimant testified as to having trouble with her left knee while walking, kneeling, sitting and other routine movements after her fall at the Department. Due to this discomfort, Claimant went to see Dr. Kriegshauser in St. Louis County to take another look at her knee. Dr. Kriegshauser testified that the Claimant had cartilage damage in her left knee and suggested Claimant undergo arthroscopic knee surgery in order to help relieve the discomfort Claimant was experiencing. Claimant underwent the arthroscopic surgery in January of the following year on her left knee. Claimant accrued $4,019.15 in medical bills due to the injury to her left knee.

James Mertz, field office supervisor at the Department, testified that, as part of his duties, he routinely does a walk-through inspection of the building, and among the areas he would check was the entranceway. He further testified that it was departmental custom that the mats in the entranceway be positioned behind the right-hand door to absorb tracked in water and protect the public from possible accidents due to water spots in the building. Dr. Cris man’s testimony parallels James Mertz’s as to the correct positioning and purpose of the mats in the entranceway. James Mertz also stated that during his walk-throughs, if he observed the entranceway mats not behind the right-hand door, he would reposition them, lining them up with the right-hand door.

Before evaluating this matter on its merits, this Court has been asked to resolve a number of issues. The Respondent had filed a motion for leave to file their brief instanter and Claimant had filed an opposition to Respondent’s motion. The Court believes that granting the Respondent’s motion will not prejudice the Claimant. Therefore, Respondent’s motion to file their brief instanter is hereby granted.

The first issue the Court was asked to resolve was the evidence dispute relating to the taping of a telephone conversation between Dr. Crisman and Patricia Kipping. After Patricia Kipping fell, she went to the hospital then back to her home in Red Bud. When Claimant arrived home, there was a message on her answering machine from Dr. Crisman asking Patricia Kipping to call her at the Department. Patricia Kipping called Dr. Crisman promptly and, while conversing with Dr. Crisman, decided to record the conversation on her answering machine in order to preserve the conversation. The Claimant, in her closing brief, argues that the taped conversation should be admissible and this Court agrees, but for different reasons. Claimant argues that this taping does not violate the Illinois Eavesdropping Act (720ILCS 5/14 — 1) because one of the parties consented to the conversation and this conversation occurred before the 1994 amendment to the Eavesdropping Act making one party consent illegal and a violation of the Act.

Although this argument would allow for the admission of the taped conversation if it fell under the Eavesdropping Act, it is nonetheless a moot point because the taped conversation between Dr. Crisman and Patricia Kipping is outside the scope of the Eavesdropping Act. The Eavesdropping Act does not govern the recording of a conversation by a party to that conversation; it governs the taping by an outside party to the conversation. (People v. Rodriguez (1997), 289 Ill. App. 2d 223, 680 N.E.2d 757.) No eavesdropping occurs where an individual to whom statements are made or directed records them, even without knowledge or consent of the person making the statements, because the declarant does not intend to keep his statements private vis-a-vis that individual. (Bender v. Board of Fire and Police Commissioners of Village of Dolton (1989), 183 Ill. App. 3d 562, 539 N.E.2d 234.) A party to a conversation should not be restricted in repeating or testifying to what was said to him. The recording of a conversation by a party to the conversation is simply a means of preserving a more accurate account of what he had heard. Therefore, there can be no invasion of an expectation of privacy when a party to a conversation makes a recording of the conversation. (People v. Beardsley (1989), 115 Ill. 2d 47, 503 N.E.2d 234.) In the matter before this Court, the conversation between Dr. Crisman and Patricia Kipping does not constitute eavesdropping and therefore Claimant should not be restricted from entering the taped conversation into evidence. In the taped conversation, Dr. Crisman stated, “I think moving those rugs over helped too, because they were in a place where, uh, some people bypassed the carpet and walked on the slippery floor and that ain’t no good.” She also told the Claimant, “Well, I think that the janitor had moved them [the rugs] over the weekend when he cleaned the floor and * * * he’s good hearted but not too bright.”

The second issue the Court was asked to resolve was the evidence dispute relating to the admission into evidence of the subsequent remedial measures taken by the Department after Patricia Kipping fell. The general rule on this matter is that post-accident changes are not admissible to prove negligence in Illinois. (Offutt v. PenoVer Merchants Transfer Co. (1976), 36 Ill. App. 3d 194, 343 N.E.2d 665.) The rationale for the general rule is twofold; correction of unsafe conditions should not be deterred by allowing that such act will constitute negligence and, more fundamentally, post-occurrence change is insufficiently probative of prior negligence, because later carefulness does not necessarily imply prior neglect. (Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 417 N.E.2d 154.) However, Illinois courts have allowed evidence of subsequent remedial measures to be admissible if offered to show something besides proof of negligence. Exclusion of post-occurrence remedial measures is required when evidence of post-occurrence change is offered as proof of negligence or culpable conduct; in all other cases where evidence is relevant to issues in the case it should be admitted. McLaughlin v. Rush Presbyterian Memorial Hospital (1979), 68 Ill. App. 3d 546, 386 N.E.2d 334.

In the matter before this Court, the Claimant offers evidence of a subsequent remedial measure by the Department in order to help clarify a factual dispute as to whether the conditions of the doorway entrance at the Department building are as the Claimant contends or as the Respondent contends. Due to the fact that the evidence of the post-occurrence change is not offered to prove the Respondents negligence and is relevant to issues in this case, it is admissible into evidence. There is one final hurdle the Claimant must clear to get evidence of the subsequent remedial measure into evidence. To be admissible, evidence as to a condition which allegedly caused an accident must relate closely enough in point of time to the time of the accident to make it apparent that the condition has not changed. (Weiss v. Sears, Roebuck and Co. (1962), 38 Ill. App. 2d 198, 186 N.E.2d 797.) In this case, the remedial measure was taken once Dr. Crisman received word of the accident from Patricia Kipping, and the conditions of the entranceway had not changed by any noticeable degree to warrant non-admissibility of tibe subsequent remedial measure into evidence in order to prove the conditions of the entranceway at the time of the accident.

Claimant had also offered the evidence of the subsequent remedial measure in order to prove ownership and control of the weather mats by the Department. As stated before, evidence of subsequent remedial measures is admissible if offered to show something besides proof of negligence. (McLaughlin v. Rush Presbyterian Memorial Hospital (1979), 68 Ill. App. 3d 546, 386 N.E.2d 334.) Although proof of improvements subsequent to injury may not be made for the purpose of proof of negligence, such proof is admissible to prove ownership of the instrumentality which caused injury. (Kellens v. Schiele (1938), 297 Ill. App. 3d 388, 17 N.E.2d 604.) Other Illinois courts have expressed similar sentiments in stating that, although proof of subsequent remedial measures may not be admissible for the purpose of proof of negligence, it may be used for the purpose of showing who had control of the premises on which the injury occurred, when control is an issue. (Seipp v. CTA (1973), 12 Ill. App. 3d 852, 299 N.E.2d 330; Kuhn v. General Parking Corp. (1981), 98 Ill. App. 3d 570, 424 N.E.2d 941.) The subsequent remedial measures taken by the Department in replacing the mat before the entranceway door and placing "wet floor” signs at the entrance after Patricia Kipping’s slip and fall undoubtedly proves that the mats were in the control of the Department and that it was the responsibility of the Department to control the conditions of the entranceway of the building.

The reliability of the testimony given by Dr. Crisman in her deposition has also come into question in this case. Dr. Crisman testified that she did not remember telling Patricia Kipping that the mat in the entranceway was out of place and that the floor was wet. With all due respect to Dr. Crisman, it had been a long time between the date of the accident and the date of her deposition, nearly six years; but the evidence of the taped phone conversation between her and Patricia Kipping in which she told Patricia Kipping that the Department had moved the mats over so visitors could not bypass them and put a wet floor sign out puts the reliability and accuracy of Dr. Crisman’s testimony in question. This Court believes that the taped phone call in essence impeaches the testimony Dr. Crisman gave as to the conditions of the entranceway on the morning of September 21, 1992. Therefore, this Court has adopted the fact pattern expressed by the Claimant in her claim which is corroborated by the recorded statements made by Dr. Crisman in her phone call to Patricia Kipping which was found to be admissible evidence by the Court in this matter.

Also in question in this case was an objection made by the Claimant to a question posed by Respondent’s attorney and answered by Dr. Kreigshauser during the deposition of Dr. Kreigshauser. Claimant asked the Court to strike hues 15 to 20 on page 29 of Dr. Kreigshauser s deposition which states the following:

“Q: Is it possible that the condition existed prior to the fall and was, I guess, rendered symptomatic by the fall?
A: Yes."

Claimant objected to this exchange stating that it was based on mere “possibilities” and was not based on a “reasonable degree of medical certainty.” In Illinois, an experts opinion cannot be based on conjecture or guess and a medical experts opinion must be based on a reasonable degree of medical certainty. (Marshall v. Osborn (1991), 213 Ill. App. 3d 134, 571 N.E.2d 492; Collins by Collins v. Straka (1987), 164 Ill. App. 3d 355, 517 N.E.2d 1147; Federal Rules of Evidence, Rules 702, 703, 705.) However, Illinois courts have also held that, although an expert may not guess, conjecture or surmise as to a possible cause of an injury, she can testify in terms of possibilities or probabilities as long as her opinion is based on a reasonable degree of medical certainty. (Dupree on Behalf of Estate of Hunter v. Cook County (1997), 287 Ill. App. 3d 222, 677 N.E.2d 1303.) So, it is permissible for an expert to testify concerning the expert’s opinion in terms of possibilities or probabilities as long as it is grounded in a reasonable degree of medical certainty. Although Dr. Kreigshauser’s answer to the question posed above seems to run dangerously close to mere speculation and probabilities, it does contain a reasonable degree of medical certainty. When looking at the injury and the problems complained of by Patricia Kipping, Dr. Kreigshauser, in his expert opinion based on a reasonable degree of medical certainty, bélieved there could have been a possibility that the injury was sustained prior to Claimant’s fall at the Department. Dr. Kreigshauser is not stating in his answer that it is likely that the discomfort complained of was caused by a prior accident, or even that he believes it was; he merely stated that it was medically possible that Patricia Kippings injury to her knee could have originated from a prior injury. Therefore, hues 15 to 20 of page 29 of Dr. Kreigshauser s deposition will remain a part of the record in this case.

However, it should be noted that elsewhere in his deposition Dr. Kreigshauser strongly asserts that the cause of Patricia Kippings injury was her fall on September 21, 1992. Page 14 of Dr. Kreigshauser s deposition states:

“Q: And, Doctor, do you have an opinion as to whether the condition that you’ve referred to in her knee and which you treated her for was caused by the September 21,1992 incident related in the history?
A: Yes. Based on the patient’s history given to me of no problems with the knee prior to that injury, the type of injury she described is consistent with the type of injury found in her knee joint. I would say that the injury was a result of that fall on September 21,1992.”

So, although there is a medical possibility of the injury having a different source than the September 21, 1992, fall, this Court is persuaded by the expert opinion of Dr. Kreigshauser that the cause of Patricia Kippings injuries was most likely, and almost certainly, her September 21, 1922, slip and fall at the Department.

We now move on to weigh the merits of this case. This Court has held that the State owes a duty to its invitees to use reasonable care in maintaining its buildings. (Steger v. State (1993), 46 Ill. Ct. Cl. 262, 266.) However, this Court has also held that the State is not an insurer of the safety of persons visiting its buildings. (Bahl v. State (1997), 49 Ill. Ct. Cl. 120, 123.) Invitees assume all normal, obvious or ordinary risks attendant to use of the premises. (Sanders v. Board of Governors of State Colleges and Universities (1995), 48 Ill. Ct. Cl. 177, 179.) In order for a Claimant to recover, there must be evidence of the State’s negligent design, construction or maintenance of the area in question. (Id. at 179.) However, this alone does not allow the Claimant to recover. Not only must there be evidence of the State’s negligence, but there must also be a showing of actual or constructive notice of a dangerous condition and a failure by the State to remedy the condition effectively and efficiently. (Carlson v. Board of Regents (1994), 47 Ill. Ct. Cl. 171, 173.) Therefore, a Claimant bears the burden of establishing by a preponderance of the evidence that the State breached its duty of reasonable care, that the breach proximately caused the injuries and that the State had actual or constructive notice of the dangerous condition in order to recover.

In this case before the Court, the Respondent has failed to use reasonable care in properly maintaining the entranceway of its building in order to keep it reasonably safe for invitees entering the building. The Department recognized its obligation to keep invitees reasonably safe upon entering the building by purchasing and placing heavy weather mats at the entranceway of the building and periodically checking them to make sure they were properly placed in the entranceway. The Department breached its duty to keep the entranceway reasonably safe on the morning of September 21, 1992, by not properly placing the weather mat before the right-hand door of the entranceway to the building as was the policy and normal practice of the facility, thereby creating the dangerous condition of a wet tile floor which directly caused the injuries to Patricia Kipping. In a related case, where snow and water accumulation in a waiting room of a State office caused an invitee to slip and injure her knee, this Court held the State liable because the State has a duty to remedy the situation in order to make the premises safe since due to the accumulation created, it was reasonably foreseeable that someone could slip and fall. (Owen v. State (1989), 41 Ill. Ct. Cl. 109, 111.) Asking the Department to make sure there was a mat placed before its lone entrance door was certainly a reasonable measure to keep invitees reasonably safe from foreseeable dangerous conditions and did not constitute an overly burdensome duty upon the Department turning it into an insurer of the safety of persons visiting its building.

There is also evidence in this case that the State had notice of a dangerous condition on its premises and failed to make an effort to remedy the dangerous condition. It had been raining on the morning of September 21, 1992, and Department employees should have been reasonably aware of possibly dangerous conditions in the entrance-way due to the tracking in of water by visitors. Because of this, the State had constructive notice, if not actual notice, of the potentially dangerous conditions in its entranceway. Yet, at no time prior to Patricia Kippings fall had the Department taken any steps to remedy the dangerous condition by checking the conditions of the entranceway and properly placing the weather mat so as to be useful for its intended purpose of keeping the entranceway reasonably dry and safe for all persons entering the building. In an analogous case, a visitor was injured when she slipped and fell on a wet spot on the floor due to rain that had been tracked in by visitors of a State building. This Court held that the heavy rainfall had given the State sufficient notice and it should have made some effort to keep its floors reasonably dry under the circumstances. (Hambry v. State (1976), 31 Ill. Ct. Cl. 487, 489.) In another related case where an invitee of the Department of Motor Vehicles slipped on a wet spot on the tile floor of the building, the State was found hable for the injuries sustained because the State had constructive, if not actual, notice of the dangerous condition of standing water, due to the rain that day, yet no attempt was made to correct the condition. (Smith v. State (1989), 41 Ill. Ct. Cl. 42, 43.) Our case closely parallels the fact patterns of the above cases; therefore, we hold that the State failed to take reasonable measures to remedy a dangerous condition in its entranceway of which it had constructive, if not actual, notice due to rainfall on the morning of September 21,1992.

In conclusion, the State owes a duty of reasonable care in maintaining its premises for the safety of its invitees which the Department breached by not having its heavy weather mat properly located behind the entranceway door to the building. The Department had constructive, if not actual, notice of the potentially dangerous condition at the entranceway due to the rain that fell throughout the morning hours on September ¿1, 1992, yet it did nothing to check upon, and remedy, the potentially dangerous condition that was present. The injuries sustained by Patricia Kipping s knee were directly and proximately caused by the negligence of the State, and this Court finds the State liable for said injuries.

For the foregoing reasons, the Court awards Claimant the sum of $12,000 in full and complete satisfaction of this claim.


author: Patchett, J.

text:
    (No. 94-CC-1625
    Kevin Stoeckel, Claimant, v. Illinois Department of Transportation (IDOT) and Kirk Brown, Secretary of IDOT, Respondents.

      Order filed July 19, 1999.

    David A. Virgin, for Claimant.
    Jim E. Ryan, Attorney General (Deborah L. Barnes, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This cause coming on to be heard on the Respondents motion for summary judgment, the Court having considered the memoranda of the parties, and being fully advised in the premises, the Court finds:

1. Claimant, Kevin Stoeckel, was a passenger in a vehicle driven by Elmer Valladares at the intersection of College Avenue (Illinois Route 140) and Crest Drive in Alton, Madison County, Illinois at 12:30 a.m. on December 23, 1992. Claimant alleges injuries resulting from a collision between the Valladares vehicle and a car driven by Randall Schwartz. Schwartz was eastbound and Valladares was westbound on Route 140.

2. Schwartz, in his deposition, testified that he does not remember the accident, but he admitted that his blood alcohol level was .20 (per 100 milliliters of blood). The Illinois Vehicle Code in effect at that time provided that a person was presumed intoxicated if his blood alcohol concentration was .10 per 100 milliliters of blood. (625 ILCS 5/11 — 501 and 11 — 501.2 (1992)) Schwartz was at double the presumed intoxication level.

3. Elmer Valladares, in his deposition, testified that he was driving at a speed of 45 miles per hour when Schwartz pulled out in front of his vehicle. Claimant, a passenger in Valladares’ vehicle, was deposed and also testified that Schwartz turned in front of Valladares’ car.

4. The cause of the accident was Schwartz’ negligence, and not the design of the highway or any negligence on the part of the State. In DiBenedetto v. Flora Township (1992), 153 Ill. 2d 66, 605 N.E.2d 571, a driver lost control of his vehicle, crossed over the shoulder, and landed in a drainage ditch. The Supreme Court held that the ditch was not the cause of the accident, but that the driver’s loss of control was the proximate cause of the accident. See also Thompson v. County of Cook (1993), 154 Ill. 2d 374, 609 N.E.2d 290, which is similar to the instant case.

5. If a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent independent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury. (Briske v. Village of Burnham (1942), 379 Ill. 193, 199, 39 N.E.2d 976,, 979; Carr v. Shirland Township (1978), 66 Ill. App. 3d 1033, 1037, 384 N.E.2d 449, 452, 66 Ill. App. 3d at 1037.) An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury, and itself becomes a direct and immediate cause of the injuiy. Briske, 379 Ill. at 199.

In the instant case, Mr. Schwartzs failure to yield, as was his statutory duty, was the subsequent independent act of a third person. Therefore, the condition of the intersection, if it was hazardous, and Mr. Schwartzs failure to yield, are not concurrent and the existence of the condition is not the proximate cause of the injury. Furthermore, this Court has held that where a stop sign was missing at the intersection of a gravel road and a preferential highway, the driver who failed to yield to traffic approaching from the right, according to a statutory duty similar to the instant case, was the proximate cause of the accident, and not the absence of the stop sign. Wehde v. State (1985), 38 Ill. Ct. Cl. 165.

6. Here, Schwartz’s actions and intoxication were the causes of this tragic accident.

7. Further, the highway (IL Rte 140) was completed more than ten years before the accident. Pursuant to 735 ILCS 5/13 — 214(b), a claim based upon design or construction defects is required to be brought within ten years of the construction.

It is therefore ordered, adjudged and decreed that the Respondent’s motion for summary judgment is granted, and this claim is dismissed and forever barred.


text:
    (No. 94-CC-2142
    Sharon Wysopal, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 3, 2000.

    Karlin & Fleisher (Charles E. Tannen, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Darin L. Rasmussen, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This matter comes before the Court as a claim against the Illinois Department of Transportation for personal injuries sustained on an Illinois highway allegedly as a result of negligent maintenance. Claimant seeks damages in the amount of $100,000.

Claimants husband, Albert Wysopal, testified that on October 10, 1993, at about 9:00 p.m., he and his wife, as his passenger, were driving a Chevrolet Blazer southbound on First Avenue between 47th Street and the ramp to Interstate 55 in Cook County, Illinois. Claimants husband further testified that the weather conditions were clear and dry, traffic was light, and they were traveling at a speed of 50 mph when they struck a “huge" pothole.

Mr. Wysopal testified that, as a result of striking the pothole, Mrs. Wysopal struck her head against the interior ceiling of the vehicle. Although her immediate concern was for the safety of her infant son who was in the back seat, upon arriving home she realized pain and numbness in her neck.

Mrs. Wysopal testified that, prior to the accident, she had never suffered or been treated for any neck injuries. In the days following the incident described, she experienced excruciating neck pain, numbness, tingling, and inability to move her head. She sought treatment on October 12,1993, at Good Samaritan Hospital, where she was referred to a neurosurgeon who performed a myelogram and diagnosed a herniated disc. The surgeon recommended, and ultimately performed, a cervical laminectomy. Claimant testified that, for a number of months following the surgery, she was able to return to most of her normal activities. She testified that she still suffers from episodes of neck pain, and her activities such as quilting and reading have been severely limited. She produced evidence that her medical bills totaled $23,509.90 and her lost wages totaled $3,263.43.

Claimant also called Robert Krause, a friend of Claimant, who testified that in 1992 and 1993 he traveled First Avenue approximately twice a month. He testified that in 1992 he was aware of a very deep pothole in the area of the incident and he always avoided the lane with the pothole. However, Krause admitted he had never filed a report of such pothole.

Ken Chlebicki, an engineering technician for the Illinois Department of Transportation (IDOT) was called by the Claimant as an adverse witness. He confirmed that the subject roadway was under the control of IDOT on the date of the incident. He testified that, as a general rule, it is the responsibility of all IDOT employees to report road defects. After receiving notice of a defect, a crew would be dispatched to investigate the site. When potholes are identified, they are repaired with an asphalt mix that is black when applied and lightens with age. He further testified that if warranted, a repair could be made within an hour.

The subject site is an area that received medium traffic and would be serviced from IDOTs Stevenson Yard which is located approximately two miles from the incident scene. IDOT employees perform services and inspections from the Stevenson Yard on Mondays through Fridays. They do not perform inspections or services on weekends. He also stated that road defects may appear between Friday and Monday when the crews are not working.

Following an examination of the pictures of the accident site, Chlebicki testified that the pothole in question appeared to have been filled on more than one occasion, but he was unable to testily as to how many occasions or under what circumstances. Chlebicki further testified that after examining Claimants photo exhibit number 7, he observed a “dip” or “defect” in the pavement which was preceded by a warning to motorists.

Chlebicki opined that the subject pothole would probably be repaired by filling it in with five to eight, or eight to ten, shovels full of the asphalt material. He indicated that he could not determine its depth from the photos. The repairs to the subject pothole were actually made on October 12, 1993, two days after the accident in question. The amount of material actually used in the repair could not be determined.

The Claimant also produced, by evidence deposition, her treating physician and neurosurgeon, Dr. Daniel Harrison, M.D., who testified that the Claimants neck injury was consistent with the car accident she described and was not related to any tumor or disease process. Following a myelogram and a CAT scan, Dr. Harrison performed a surgical laminectomy. The doctor met with the Claimant for 13 follow-up visits between November 10, 1993, and October 11, 1995. Dr. Harrison concluded that the ongoing pain complaints of the Claimant were reasonably consistent with the injury, the surgery and her physical build.

Finally, Claimant introduced climatological data which indicated that the average temperature on October 8, 9 and 10,1993, was 63, 40 and 42 degrees respectively.

Respondent, through its departmental report, acknowledged that the subject roadway was under its control and jurisdiction. It denied having prior notice of the condition of the roadway.

The State is not an insurer against accidents that may occur on its highways. (Gray v. State (1954), 21 Ill. Ct. Cl. 521.) The State however, has a duty to maintain its highways in a reasonably safe condition for the purposes for which they are intended. (Blair v. State (1994), 47 Ill. Ct. Cl. 108.) The State has a duty to maintain its highways so that defective and dangerous conditions do not exist. (Moldenhaver v. State (1984), 32 Ill. Ct. Cl. 514.) Where a dangerous condition exists and a person using the highway is injured, the Claimant must prove by a preponderance of the evidence that the dangerous condition existed and that the State had actual or constructive notice of the condition. Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 227.

In this case there is no complaint or report of the defect which would give the State actual notice. As such, we must consider the facts of this case as presented to determine whether or not the State had constructive notice. (Stills v. State (1989), 41 Ill. Ct. Cl. 60, 62.) The Court has consistently held that for a recovery as a result of injury suffered in a road case, the defect must be substantial enough and must have existed for a sufficient length of time that reasonable persons would conclude that immediate repairs should be made or warning signs posted. Immordino v. State (1995), 47 Ill. Ct. Cl. 78, 80; Stege v. State (1972), 27 Ill. Ct. Cl. 399, 403.

The photographic evidence in this case accurately represents the scene on the day of the accident. It depicts a cement roadway with a large area that has been repaired with asphalt. The varying coloration of the asphalt repair work indicates that the work was done on at least two occasions in the opinion of the IDOT employee Chlebicki. There was no evidence to indicate when, by whom, or how the patching was done. The pictures clearly indicate that both the near and far portions of the patched area have broken away leaving two deteriorating areas. Although there is no specific evidence as to the actual size of the potholes, the pothole located at the far end of the patched area appears to be of significant size. Further, the testimony of the Claimants husband was that they struck a “huge” hole that resulted in the startling impact in question. In addition, as previously indicated, Krause confirmed the testimony of the Claimant and her husband that a “very bad pothole” existed at the location of the incident in 1992 and 1993.

IDOT employee, Chlebicki testified that potholes can appear over the course of a weekend and the Respondent urges the Court to conclude that is what happened in this case. However, an examination of the photos and consideration of the testimony of the witnesses do not support that conclusion. It is unlikely that both ends of a patched highway would simultaneously disintegrate over the course of one weekend. Further, there is no evidence that the October weather conditions were such that substantial holes would result in such a rapid fashion.

The evidence does support Claimants contention that the potholes were substantial defects and had existed for a significant length of time so as to constitute constructive notice to IDOT, as the Stevenson Yard was only two miles from the scene of the incident.

Therefore, we find liability for the Claimant and against the State. Considering that Claimants medical bills total $23,509.90 and her lost wages of $3,263.43, we hereby award her $100,000.


author: Epstein, J.

text:
    (No. 94-CC-2290
    Perry Saunders, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 30, 1999.

    Perry Saunders, pro se.

    Jim E. Ryan, Attorney General (Michael F. Rocks, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

Claimant, Perry Saunders, an inmate of the Illinois Department of Corrections (IDOC), filed his claim pro se, seeking reimbursement for property allegedly damaged due to IDOC s negligence while Claimant was a resident of the Dixon Correctional Center (Dixon). This claim is before us on our Commissioners report following the hearing of March 6,1997.

The record in this case includes the transcript of testimony and Respondents exhibits 1 and 2 (the departmental report). The parties did not file briefs.

The Facts at Trial

Claimant testified that, on February 13, 1993, there was an electrical problem in housing unit 29 at Dixon in which Claimants cell number 54 was located. On February 15, 1993, a maintenance man informed the control officer as well as the Claimant that the electrical problem had been repaired and that it was all right to use the outlets. Electrical problems recurred in unit 29 on March 4, 1993. After a maintenance man checked the electricity, Claimant was informed that it was all right to turn his television set on. When he turned the television set on, smoke emerged. Claimant and other inmates whose property had been damaged then informed the administration staff of the problem. A Ms. MacRunnels told them to take their property over to personal property to be evaluated. Claimant was informed that his television could not be repaired.

Claimant further testified he filed a grievance and was initially informed that he would receive 60 to 70 percent of what the television was originally worth. However, when that decision was sent to Springfield for final approval, it was denied because it was determined the damage had been caused by an act of God.

Respondent produced William E. Shaw, the chief engineer of the maintenance department at Dixon. He testified that the electrical problem in unit 29 on March 4, 1993, was determined to have been caused by Commonwealth Edison due to a surge or interruption of service. He further testified he was not aware of any equipment on the grounds at Dixon that could have caused the electrical problem.

Respondent’s exhibit 2, the departmental report, contains a copy of an incident report prepared by Captain Dempsey on March 3, 1993, which reports a power surge in housing unit 29 that affected Claimant’s cell, number 54. It further indicates that Claimant’s television was damaged by the surge.

The departmental report contains a copy of a memorandum by Colleen MacRunnels, dated March 9, 1993, that instructed the Claimant to take the equipment damaged on March 4th to Personal Property to be inspected. A copy of a grievance report prepared by Ms. MacRunnels on April 22, 1993, also appears in the departmental report, which recommends that Claimant be compensated for damage to his television.

The departmental report contains a copy of a letter dated December 6, 1993, to Claimant from- Michael W. Carter, which states in relevant part:

“This is to acknowledge receipt of your correspondence on November 8, 1993, in which you desire to grievance an issue of personal property damage. You had indicated in an incident at the Dixon Correctional Center on March 4, 1993, there was electrical power outage. You indicated there were many electrical items that were (sic) due to this outage. You reported these specific items in your grievance and indicated your desire to have these items replaced or be reimbursed.
This office consulted the records of the Tort Claim Coordinator which indicated the issue had been forwarded through the Tort Claim process. It was also noted the Tort Claim Coordinator had denied requests for reimbursement to all individuals involved with this type of occurrence in accordance with Administrative Directive 01.06.110. It was indicated the issue was covered under Section 2,F,3, which states in part, * * liability for property loss shall normally be limited to loss as a result of staff conduct or lack of supervision 0 °
Since this issue is addressed through the Administrative Directive and your issues of property loss do not fit a reimbursement category, your claim was denied. This office notes there is no other substantiation to indicate reimbursement that is fitting in the case of the electric outage."

A copy of Administrative Directive 02.06.110, section 2.F.3, referred to in the foregoing letter, is contained in the departmental report, and states as follows:

“Liability for property loss shall normally be limited to loss as a direct result of staff conduct or lack of supervision. Inmates shall not normally be reimbursed for the following without the prior -written approval of the Director:
a. Unauthorized items or items loaned, traded, sold, or bought from other inmates.
b. Property losses as a result of riots, general disturbances, fires, or natural disasters.
c. Losses or theft exclusively caused by other inmates.
d. Losses of property which was abandoned by the inmate during an unauthorized absence such as an escape, runaway, attempted escape, attempted runaway, or failure to return.”

The record indicates that a power surge did indeed occur on March 4, 1993, which damaged Claimants television. The testimony of Chief Engineer Shaw indicates the power surge was determined to have been caused by Commonwealth Edison and not by any faulty IDOC equipment at Dixon.

Claimants television was damaged due to the power surge, but the power surge was not caused by, nor the fault or negligence of, IDOC. Claimant may well have been informed — or misinformed — that it was all right to use his television prior to it being damaged by the power surge. However, the State is not an insurer of the private property of inmates, nor are IDOC personnel predictors of the stability of electrical power supplied by public utilities, and Claimant should have known better than to rely on such predictions.

Moreover, as this Court has held in a number of "power surge” cases, Claimants like this one, being presumptively of normal intelligence, should be aware of the existence, and availability at nominal cost, of surge protectors, which offer protection for electrical equipment from power surges.

This Claimant has failed to prove any negligent acts or omissions on the part of the Respondent that caused or contributed to his property damage. For this reason, this claim must be denied.

Conclusion

This claim is denied and forever barred.


text:
    (No. 94-CC-2436
    Myra J. Durbin, Claimant, v. The State of Illinois, Respondent.

      Order filed May 23, 1000.

    James W. Ackerman, for Claimant.
    Jim E. Ryan, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This case arose as a result of a single car accident which occurred February 20, 1993, on Illinois Business Route 48 in the vicinity of Taylorville, Illinois. A van driven by the Claimant struck a pile of salt which had been deposited on the highway due to a lid falling off of a salt box on an Illinois Department of Transportation (Department) truck.

Thomas Wattelet, the driver of the truck, testified that he had been an employee of the Department for 22 years. On February 20,1993, he was called out at approximately 6:30 p.m. because of freezing rain. He performed a “circle of safety” maintenance check around the truck and proceeded to salt the roads on a prescribed route. A “circle of safety” is when the driver walks around his truck, checks the main bolts, pins, locks, and observes the truck. The truck was a two and one-half to three ton truck with a salt box on the rear, and a plow on the front. The salt box on the rear had a lid that was secured by pins which slipped in and snapped down to lock the lid in place. Mr. Wattelet testified that when he conducted the circle of safety he shook the lid to make certain the pins were in and it was locked securely in place.

Mr. Wattelet was driving approximately 15 to 20 mph and was salting the roads which, at the time, were icy with a little snow. Mr. Wattelet s route was approximately 40 to 50 miles long, and took one and one-half to two hours due to the weather conditions. Mr. Wattelet was near the end of his route when the lid fell off, approximately one and one-fourth to one and one-half miles from the depot. Mr. Wattelet testified he could not see the salt box while driving the truck.

Upon completing the first run, Mr. Wattelet returned to the depot at approximately 8:30 p.m. and noticed the lid was missing from the salt box. The lid in question was 72 inches long and 12 inches wide. Mr. Wattelet then back-tracked his route. After back-tracking a little over one mile, he found the lid in a pile of salt on the highway. Mr. Wattelet testified that the pile of salt was approximately 12 inches tall and 24 inches wide. Approximately eight to ten minutes had lapsed from the time he discovered the lid had fallen off the box to when he returned to the location of the salt spill. He then cleared the highway with his blade.

Carlyle Griffith testified that he was a temporary leave worker for the Department in February 1993, and was Mr. Wattelets supervisor that night. Mr. Griffith testified that, on the evening in question, he was in a pickup truck which belonged to the Department, and he heard Mr. Wattelet state over the radio that he had lost his salt lid. Mr. Griffith was nearby, so he checked the area and located the lid on the road. He was going approximately ten to 15 mph at the time because he was looking for the lid. He testified that the pile of salt was across an entire lane of traffic. The lid was located on the edge of the road, with approximately one foot of it in the road and the rest in the ditch.

Mr. Griffith testified that the circle of safety is performed twice a night, but that most drivers would check every time they get a load of salt. If there is a heavy snowfall, the drivers will check in the middle of their route for snow covering their lights. This was not the case on the night in question. Mr. Griffith further testified that a lid has four pins holding it in place. He had a lid fall off his truck on one occasion, but it was when he had left the box down while moving from one part of the lot to another. His salt box was not in the upright position with the pins in. He had never had a lid fall off when it was in the upright position with the pins fastened as Mr. Wattelet’s had been on the night in question. He further testified that he was not aware of any other times that lids had fallen off of salt boxes other than the two he testified about. Mr. Griffith, however, stated that sometimes a pin would shake loose on a truck and the driver would just put it back when he observed it during a circle of safety check.

Claimant’s 12-year-old daughter, Crystal Durbin, was a passenger in the van on the night of the accident in question. Crystal testified that they hit something hard and the van bounced back and then it went forward over what they had hit and then went across the other lane of traffic and landed in the ditch. She testified that at the time of the accident it was dark and sleeting. She testified that Claimant was able to back the van out of the ditch. Crystal testified that Claimant’s right shoulder, neck and arm were hurting the night of the accident causing the Claimant to use a heating pad over the weekend and to see a doctor on the following Monday. For approximately the next four months, Claimant appeared to be in frequent pain. Crystal testified that Claimant’s ability to type has been limited, and Claimant stopped going to school because she could not write or type for long periods of time. Crystal also testified that her mother had hurt her arm once when she worked at the factory in January of 1994.

Debra Buckles testified for the Claimant. She is a physical therapist at St. Vincents Memorial Hospital. She met the Claimant in August of 1995 and evaluated her for physical therapy. The Claimant reported that her pain began on the previous Friday. Claimant told Ms. Buckles that she had been in a car accident three years before and the pain resembled the car accident pain, but she denied recent injury. Claimant did not relate the injury at the factory. Ms. Buckles testified that Claimants main problem appeared to be muscular. A treatment was performed in accordance with a prescription from the doctor, which was for a seven-day course of treatment involving interferential stimulus, ultrasound massage and exercises.

Robert Torres testified that he and the Claimant lived together and, in April of 1991, opened a restaurant business together. Mr. Torres and Claimant were still operating the business when the accident occurred in February of 1993. Claimant did not return to work at the restaurant following the accident and they had to hire someone to do her work. The restaurant closed in October of 1993. Mr. Torres also confirmed that the Claimant experienced severe pain for approximately four months after the accident and continued to have pain after that period of time.

Claimant testified that, on the night in question, she left home at approximately 8:00 p.m. to go to a video store. The weather began to produce sleet through which she was driving approximately 30 to 40 mph. Claimant stated that she had observed the salt truck on Route 48 and the salt on the road. Claimant testified that, as she was traveling down Route 48, she hit something and her van ended up on the other side of the road in the ditch. She stated that she did not see the pile of salt prior to striking it with her vehicle. Claimant next proceeded to back her vehicle out of the ditch and discovered that her shoulder was in pain. Claimant walked to the location where the salt was across the road and observed another car driving through the salt. Claimant testified that height of the salt was varied from two feet high at parts and only one foot high at others. Claimant did not see the lid that had fallen off of the salt truck.

Claimant further testified that the road where the salt was located was straight prior to the salt pile and began to curve after the location where she encountered the salt. There were no hills and the road was not well lit.

After the accident Claimant first proceeded to the police department and next to the emergency room. Claimant testified that after she returned home her pain got worse and, as such, she went to her doctor on the following Monday. For approximately one month she could not move easily without help. Claimant never returned to work at the restaurant, because it caused her pain to work as a waitress or dishwasher. Claimant then took a job with Eekland Hydraulics around October of 1993. Claimant testified that she worked at Eekland until January of 1994, when she quit because she had injured her wrist while on the job. Claimant also went to the emergency room for this injury. Claimant presented various medical bills totaling $4,879.05.

Dr. John Kain testified by evidence deposition. He is a doctor of chiropractic and Claimant was his patient. Dr. Kain first saw Claimant in his office on February 24, 1993. Claimant advised Dr. Kain of the accident and stated that she had immediate neck and middle back pain. Dr. Kain diagnosed Claimants injury as a hyper flex-ion/hyper extension type injury. Dr. Kain further observed spasm, tenderness and pain bilaterally in the cervical region, the cervical thoracic junction, shoulder region and middle back. X-rays were taken which were negative for any fractures, but according to Dr. Kain, the x-ray did show a loss of normal cervical lordotic curve. Dr. Kain testified that this is consistent with the Claimants type of injury. A further x-ray on May 20, 1996, showed the cervical lordotic curve remained reduced. In June of 1993, Claimant had shown improvement in her flexation. By October of 1993, the Claimant was reporting considerable relief of her symptoms. She had treated with Dr. Kain regularly during the period of time from the accident to October 18,1993.

Dr. Kain again treated Claimant on January 25, 1995, when she complained of neck pain and middle back pain. Claimant stated that work at the factory assembly line aggravated those symptoms. Dr. Kain testified that, at that point, her cervical motion was normal and orthopedic tests were negative. Dr. Kain observed a cervical muscle tension on Claimants right side.

Dr. Kain saw Claimant again on May 2, 1996, when Claimant complained of constant pain. Dr. Kain referred Claimant to Dr. Lyle Wacaser.

Dr. Kain testified that the Claimants head and neck complaints are related to the accident in February of 1993. Dr. Kain stated that it was difficult to determine whether Claimants problem with her right arm was solely related to the accident on Route 48, in view of the additional trauma which occurred to her arm at the factory. Dr. Kain testified that the Claimant would be permanently predisposed to episodes of an intermittent basis of neck pain, headaches and tension throughout the shoulder region.

Claimant has presented this case as one of res ipsa loquitur, a doctrine of law whose purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning the cause of the injury is primarily within the knowledge and control of the defendant. (Kylavos v. Polichrones (1942), 316 Ill. App. 444, 45 N.E.2d 99.) It applies when something that caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is one that, in the ordinary course of things, would not have happened if the person so charged had used proper care. The accident itself affords reasonable evidence, in the absence of explanation by the party that is charged, that it arose for want of proper care. See Metz v. Central Illinois Electric and Gas Company (1965), 32 Ill. 2d 446, 207 N.E.2d 305, citing Feldman v. Chicago Railway Companies (1919), 289 Ill. 25,124 N.E. 334.

Like any other proof, it may be explained or rebutted by the opposing party. There was formerly a conflict in Illinois about whether the presumption or inference of negligence raised by the doctrine of res ipsa loquitur vanished entirely when any evidence appeared to the contrary. In Metz, the Court held that the better view was that the inference or presumption does not simply vanish or disappear when contrary evidence appears, but remains to be considered with all the other evidence in the case and must be weighed by the trier of fact against the direct evidence offered by the party charged.

While the doctrine of res ipsa loquitur does not excuse plaintiffs from the responsibility of exercising due care for their own safety, the doctrine does apply when the accident is of the kind which does not ordinarily occur without someone’s negligence, and the instrumentality which caused the injury was within the management and control of the defendant. (Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 247 N.E.2d 877.) In the case of Dyvack v. Weber (1986), 114 Ill.2d 232, 500 N.E.2d 8, 102 Ill. Dec. 386, the Supreme Court held that, subsequent to the courts adopting the doctrine of comparative negligence versus contributory negligence, a Claimant no longer need prove freedom from contributory negligence as an element of the res ipsa loquitur action. This is because such proof is not required in other negligence actions. Of course, the doctrine of comparative negligence would still apply once the doctrine was applied. The Court of Claims itself has a long history of applying the doctrine of res ipsa loquitur. In the case of Kenney v. State (1956), 22 Ill. Ct. Cl. 247, this Court made an award for wrongful death in a case in which a tree limb fell from a tree at the State fairgrounds. The Court there stated:

“Respondent has not offered any evidence, or explained why the limb fell, other than it did not know that the tree was in a dangerous and hazardous condition until after the accident. We are of the opinion that, from the testimony, the disease in the tree could have been determined had a proper inspection been made by the Respondents agents. It was Respondents duty to make such an inspection in order to safeguard the patrons at the Fair.” Kenney, 22 Ill. Ct. Cl. 247.

In this case, the Respondent could argue that an inspection of the truck was conducted and that an inspection would not have shown that the lid was somehow improperly attached. However, this Court also made an award to the City of St. Louis in the case of City of St. Louis v. State (1964), 24 Ill. Ct. Cl. 477. In that case, a fighter jet belonging to the Illinois Air National Guard crashed at Lambert Field in St. Louis. As a result of the crash, the City of St. Louis had damage to its property. The airplane that caused the damage was under the sole management and control of the Respondents agent, and it therefore was assumed that the accident would not have happened if those who were in control of management had used proper care. A similar result was reached in the case of Wiegers v. State (1988), 40 Ill. Ct. Cl. 88, in which an award was made for damage for personal injury and property damage as a result of brakes failing on a State road grader. It is interesting to note that, in the City of St. Louis case and the Wiegers case, the instrumentality which caused the injury failed after operating in an extensively normal manner for a period of time. Neither the plaintiff nor the State could explain why the sudden failure occurred. Yet this Court held that it was a sufficient basis for liability.

Respondent cites the case of Rutledge v. Board of Governors (1991), 44 Ill. Ct. Cl. 257, in which an award was denied because of the failure to prove negligence. The issue in that case was the failure of evidence being presented on the issue of causation. In other words, the Claimant failed to meet his burden of proof that the injury, in fact, was caused by the failure of, or the instrumentality controlled by, the State. No such question exists in the present case, nor was it present in the Wiegers or the City of St. Louis cases cited above. For all of these reasons, we find liability on the part of the State.

Now we reach the issue of damages. Claimant has presented total medical bills of almost $5,000. There is clear evidence of a period of pain and suffering and some disability for several months following the accident. However, there is also a subsequent industrial injury which causes difficulty in properly assessing damages. Based on the evidence before the Court, we award the Claimant the sum of $15,000 for her medical bills, pain and suffering, and permanent injury. We do not find there has been any proof of comparative fault.