text:
    (No. 79-CC-0568
    United States Department of Labor, Occupational Safety and Health Administration, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1980.

    Carin Ann Clauss, United States Solicitor of Labor (Nancy Boyland Collins, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

The Claimant seeks an award of $110,726.00, pursuant to its First Amended Complaint, for the recoupment of certain monies furnished to the Illinois Industrial Commission, hereinafter the Commission, under two grants by the Claimant. A 1975 audit conducted on behalf of the Claimant indicated that part of the funds under the grants had been expended in a manner inconsistent with the terms and conditions of the grants in question. The audit revealed that $110,726.00 had been inconsistently expended. After a demand for said sum was made upon the Commission with no action taken thereon this suit was filed.

The Commission has admitted as true all the allegations of the amended complaint in the aforesaid stipulation. Therefore, the court has before it an admission which sets forth a legal basis for an award; to wit, contract and breach of contract.

Based on the existence of facts setting forth a cause of action and liability in contract, the remaining consideration for this court is one of damages.

The audit which uncovered the inconsistencies in the expenditure of grant funds indicated that $110,726.00 may have been misspent. The parties have, however, agreed between themselves that $99,531.00 represents a fair and reasonable compromise of this claim. While this court is not bound by any stipulation between the parties to a lawsuit, especially involving the question of damages, such a stipulation will not be arbitrarily set aside. Absent a showing of bad faith or lack of authority, a compromise reached in arm’s length negotiations will be considered by this court. We concur with the parties that the sum of $99,531.00 is a fair and reasonable figure for the compromise of the instant claim.

It is hereby ordered that the sum of $99,531.00 (ninety nine thousand five hundred thirty one dollars and no cents) be awarded to Claimant, United States Department of Labor, Occupational Safety and Health Administration, in full and complete satisfaction of any and all claims which are the subject matter of the complaint filed herein.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 79-CC-0597
    Patti Lynn Keating, Claimant, v. The State of Illinois, Respondent.

      Order filed November 30, 1979.

      Order on motion to vacate filed July 21, 1980.

      Order on motion to vacate filed October 6, 1980.

    John P. Coghlan & Associates, P. C., for Claimant.
   Holderman, J.

This matter comes for the Court on a motion of Respondent to dismiss said cause and objection to said motion filed by Claimant.

Claimant, a young woman, was formerly a patient at the Illinois Braille and Sightsaving School in Jacksonville, Illinois, and was also a patient at the Infirmary of the Illinois School for the Deaf in Jacksonville.

Claimant was born on March 25, 1959, and her notice of intent to sue the State was filed on March 13, 1979, and her complaint was filed March 15, 1979.

In its motion to dismiss, Respondent sets forth that this suit was not filed in apt time and cites section 22 of the Illinois Court of Claims Act. Ill. Rev. Stat. 1977, ch. 37, par. 439.22.

Claimant has had trouble with her vision for several years. The Claimant’s reply to Respondent’s response sets forth that Claimant had been hospitalized on three separate occasions for in-patient psychiatric treatment for a depressive condition caused by a detached retina and surgical enucleation of the left eye. Said reply also sets forth that Claimant has been under the disability of epilepsy and that on October 14,1976, she was admitted to the University of Illinois Hospital in Chicago, Illinois. Claimant’s reply further alleges that an agent of the Respondent inserted, or caused to be inserted, a report in Claimant’s medical records at the Illinois School of the Deaf Infirmary at Jacksonville, Illinois, purporting to show the results of an eye examination at the Illinois School for the Deaf Infirmary on October 15,1974, when in fact said examination never took place and is a statement of a falsehood designed to conceal the misdiagnosis and liability of the agent of the Respondent. Claimant’s reply further alleges that the Claimant was never informed by any agent of the Respondent of the false and misleading nature of the alleged report of October 15, 1974, and it was not until October 14, 1978, that Claimant’s attorneys discovered the true nature of said report and informed Claimant of the parties responsible for Claimant’s injuries.

Respondent relies upon section 22 of the Court of Claims Act which enumerates certain disabilities and states “and persons under other disability at the time the claim accrues.”

It is the opinion of this Court that the question of disability raised by Claimant’s pleadings are sufficient to sustain the position of Claimant, subject to confirming proof at the time of the hearing that she was suffering from disability that would place her under exemption of the statute of limitations.

It is hereby ordered:

That Respondent’s motion to dismiss be, and the same is, denied, and this cause is ordered to a hearing.

ORDER ON MOTION TO VACATE

Holderman, J.

This matter comes before the Court upon motion of Respondent to vacate an order heretofore entered by this Court denying Respondent’s motion to dismiss, and Claimant’s reply to Respondent’s motion to vacate.

The Court, in its ruling denying motion to dismiss, stated that the copy of the contract was not legible.

Respondent attached to its motion to vacate a legible . copy of said contract.

Paragraph 5 of said contract states as follows:

“It is agreed that by the terms of this agreement the Contractor is not an employee of the Department or the State of Illinois and is not entitled to payment for vacation, sick time, holidays or other benefits provided employees under the Personnel Code and regulations or other laws of the State of Illinois. .Contractor shall be responsible for accounting for and reporting State and Federal Income Tax and Social Security taxes if applicble.”

Claimant’s brief and reply to motion to vacate are to the effect that the doctors in question were employees of the State and alleged that the fact that they were supervised makes them employees rather than independent contractors.

It is the opinion of this Court that a contract entered into between the doctors and the State expressly states, as shown by the above paragraph, that they were not considered employees of the State but were independent contractors.

It is hereby ordered:

That Respondent’s motion to vacate be, and the same is, granted, motion to dismiss be, and the same is, granted, and this cause is dismissed.

ORDER ON MOTION TO VACATE

Holderman, J.

This matter comes before the Court upon motion of Claimant to vacate the Court’s order of dismissal, and Respondent’s objection to said motion to vacate.

It is hereby ordered:

That Claimant’s motion to vacate order of dismissal be, and the same is, denied, and this cause is dismissed.


author: Roe, C. J.

text:
    (No. 79-CC-0613
    James Thomas, Claimant, v. The State of Illinois, Respondent.

      Order filed September 4, 1980.

    James Thomas, pro se, for Claimant.
   Roe, C. J.

This cause coming on to be heard on the motion of Respondent to dismiss, due notice having been given, and the Court being fully advised in the premises;

A complaint has been filed by James Thomas seeking retroactive compensation in the amount of $26.64 which represents the difference between the double time rate to which Mr. Thomas alleges entitlement and the straight time rate at which he was actually paid for working on a holiday. Claimant based his claim on Art. VI, Section 6.4, Item c of the Local 726 Teamsters Agreement.

In the motion to dismiss, Respondent points out that Personnel Rules 3 — 200 and 3 — 220 provide that an employee shall be paid at a straight time rate for all holidays worked.

Thus the issue before us is what provision will prevail when there is a conflict between a collective bargaining contract and the Rules of the Department of Personnel. We find that the Rules, pursuant to Ill. Rev. Stat. 1977, ch. 127, Sec. 63b 108, have the force and effect of law, and are binding as if made directly by the Legislature. City of Chicago v. Bullis 77 N.E. 575, 221 Ill. 379; Braswell v. State, No. 78-CC-2073, Ill. Ct. Cl., filed June 25, 1980. Any contract provision which is in conflict with existing law cannot prevail and is invalid.

We find that the contract provision by which Claimant is seeking compensation is in direct conflict with Rules of the Department of Personnel. Therefore the claim for double time pay is hereby denied and, because Claimant has already been compensated at straight time pay for the time worked, as provided for in the Rules, this claim is hereby dismissed with prejudice.


author: Poch, J.

text:
    (No. 79-CC-0660
    Ernest M. Adkins, Jr., and Merry Jo Adkins, Claimants, v. The State of Illinois, Respondent.

      Order filed July 21, 1980.

    Ernest M. Adkins, Jr., and Merry Jo Adkins, pro se, for Claimants.
   Poch, J.

This cause is before the Court on Respondent’s motion for summary judgment.

Claimant seeks to recover the sum of $16,472.94 from the State of Illinois Department of Children and Family Services for the replacement of personal belongings damaged and destroyed in a fire in the home of the Claimant’s mother while the Claimant’s personal articles were being stored in said home. The loss occurred when the home burned as a result of a fire started by a minor ward of the Department of Children and Family Services who was a foster child in the home of Claimant’s mother. The ward had been placed in Claimant’s home after she was placed in the custody of the Department of Children and Family Services by the Order of the Juvenile Division of the Circuit Court of Clay County as set forth in the departmental report. In support of its motion for summary judgment the Respondent has cited the case of Mildred L. Vallery, 74-CC-378 and attached a copy of the Vallery case to its Motion. The Vallery case is exactly on point wherein they state as follows:

“At common law, the parent or legal guardian of a minor is not liable for the tortious acts of the minor. However, Illinois has adopted a Parental Responsibility Law, Ch. 70, Ill. Rev. Stat., Paragraphs 51-57, which does impose liability upon a parent or legal guardian for actual damages for the wilful or malicious acts of a minor.
Section 2 of the Parental Responsibility Law, Ch. 70, Ill. Rev. Stat., Section 52, defines ‘legal guardian to be:
‘A person appointed guardian or given custody of a minor by a circuit court of the State, but does not include a person appointed guardian, or given custody, of a minor under the Juvenile Court Act; approved August 5, 1965, as now or hereafter amended.’
Since the Department of Children and Family Services was given custody of the minor by a circuit court under the provisions of the Juvenile Court Act, the Department is not subject to the liability imposed by the Parental Responsibility Law and the Department is likewise not liable at common law.

IT IS THEREFORE ORDERED that Respondent’s motion for summary judgment be, and hereby is granted.”

This Court recognizes the Vallery opinion as controlling and it hereby ordered that this case be and the same is hereby dismissed.


text:
    (No. 79-CC-0701
    Richard N. Greer, Claimant, v. The State of Illinois, Respondent.

      Order filed September 10, 1980.

    Randolph N. Stone, for Claimant.
   Poch, J.

This cause coming on to be heard on the joint stipulation entered by and between the parties hereto, due notice being given and the Court being fully advised;

Finds:

1. That on or about July 26,1973, Claimant, Richard Greer, was discharged from his position as prison guard at Stateville Penitentiary.

2. That on September 24, 1973, Claimant filed a charge of unlawful employment practice against the State Department of Corrections with the Illinois Fair Employment Practice Commission.

3. That a settlement agreement in the F.E.P.C. matter was entered by Greer and the State Department of Corrections on or about May 10, 1978, whereby the Department agreed to pay Claimant the sum of $10,000.00.

4. That such agreement was entered and received into evidence at the hearing before Commissioner Joseph P. Griffin of the Court of Claims.

Accordingly, it is hereby ordered that the Claimant, Richard Greer, be and the same is hereby awarded the sum of ten thousand and 00/100 ($10,000.00) dollars.


author: Per Curiam.

text:
    (No. 79-CC-0803
    United States Department of Labor, Bureau of Labor Statistics, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1980.

    Carin Ann Clauss, United States Solicitor of Labor (Lisa R. Williams, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

The Claimant seeks an award of $77,724.64, pursuant to its first amended complaint, for certain monies furnished to the Illinois Industrial Commission, hereinafter the Commission, under two grants from the Claimant. A 1975 audit of the operations of the Commission on behalf of the Claimant indicated that part of the funds under the grant had been expended in a manner inconsistent with the terms and conditions set forth in the grants in question. The amount thereof was determined to be $123,728.00. The Commission made a partial payment of $46,003.36 of this amount. The balance of $77,624.64 is the subject of the instant claim.

The Commission has admitted all the allegations of the amended complaint filed herein in the stipulation. Therefore, this court has before it an admission which sets forth a legal basis for an award, to wit, contract and breach of contract.

Based on the existence of the relevant legal facts setting forth a cause of action in contract, the remaining consideration for this court is the question of damages.

Historically, this court is not bound by any stipulation of the parties regarding the legal effect of the admission of the facts as stipulated. This is especially true in the area of damages. However, where it appears that a stipulation has been made in good faith and on proper authority, this court will not arbitrarily reject such a stipulation.

It appears to this court that the suggested compromise of $71,914.00 is fair and reasonable especially considering the complexities of proof involved should the matter have to be tried.

It is hereby ordered: that the sum of $71,914.00 (seventy one thousand nine hundred fourteen dollars and no cents) be awarded to Claimant, United States Department of Labor, in full and complete satisfaction of any and all claims which are the subject of the complaint filed herein.


text:
    (No. 79-CC-0882
    Steven Wollard, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 4, 1980.

    Steven Wollard, pro se, for Claimant.
    William J. Scott, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimant is an inmate with the Illinois Department of Corrections at Menard Correctional Center.

Claimant’s complaint by “letter” filed May 3, 1979, with the Illinois Court of Claims complains in general terms of a lack of adequate medical treatment. At the hearing held by Commissioner Rath, in this cause on April 17, 1980, Claimant offered no proof of wrongdoing or negligence on the part of the State of Illinois other than his conclusions, offered in a very general way, as to a failure on the part of Respondent’s agents to provide adequate continuing medical care for the various ailments of which the Claimant complains.

There was no proof offered in this case of negligence on the part of the State of Illinois; there was no proof of any standard of care which was not met by Respondent and no proof of damages sustained by the Claimant.

It is hereby ordered:

That the claim of Claimant be and the same is hereby denied.


text:
    (No. 79-CC-0919
    Charles Washington, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 2, 1980.

    Charles Washington, pro se, for Claimant.
   Roe, C. J.

This is a claim brought by Claimant, an inmate of Stateville Correctional Center, for the value of certain items of personal property allegedly lost in the course of his transfer from Menard Correctional Center to Stateville Correctional Center on October 4, 1979. The value ascribed by Claimant to the items is $892.88.

Claimant’s exhibit 1 is a five-page inventory prepared by the authorities at Menard setting forth each item packed by the Menard authorities for transfer by bus to Stateville.

Claimant testified that when the property was delivered to him after his arrival at Stateville he refused to accept it because some of the property was missing.

“THE WITNESS: Okay. On the 4th of October, okay, I was transferred from Menard to Stateville. Okay? While waiting, all my personal property in the hold of the bus and all boxes was intact when I got here. Then Lt. Rodriguez walked me to B East orientation. Then that Sunday which would have been on the 6th, on the 6th of October, okay, I was called down about my personal property, and then I checked it and found that everything was not intact. So, 1 refused it. Okay?” (Emphasis supplied.)

Claimant reiterated this testimony later on during the course of the hearing.

Assuming that some of the property was in fact missing, Respondent terminated the bailment with respect to the items that were not missing when it attempted to deliver those items to Claimant.

“A bailment terminates when the subject matter of the bailment is returned by the bailee ° * Illinois Law and Practice volume 4a, page 531, Bailments, chapter 2 section 22.

Taking at its face value Claimant’s testimony that he walked away from his property and left it sitting on the flag of the cell house — in effect abandoning it — puts the responsibility for its loss on Claimant. The decision to abandon his property was Claimant’s.

Claimant is suing for the value of all of his property, not only the items allegedly lost while in the physical possession of Respondent, but also the items he refused to accept. There is nothing in the law of bailments that would give to Claimant the right to refuse arbitrarily to accept the portion of his property returned to him just because another portion was missing. Since there is nothing in the record to identify the items which might have been lost by the State during the course of or immediately after Claimant’s transfer from Menard to Stateville, and Claimant has the burden of proof, it is impossible to make any award.

Elmer Maxwell, personal property officer at State-ville, called on behalf of Respondent, testified that Claimant’s family picked up some of Claimant’s property. (Rec. 13). Claimant acknowledged this.

Lt. Bellamy, likewise called on behalf of Respondent, testified that he delivered Claimant’s property to him, and that Claimant did not leave it on the flag but carried it up into the gallery. Claimant rebutted this testimony by saying that he did in fact leave his property on the flag, and that he and his cellmate carried only his cellmate’s property to the gallery.

If Lt. Bellamy’s testimony is taken as true, it is still impossible to make an award, because Claimant claims the loss of all of his property.

It is ordered that this claim be denied.


text:
    (No. 79-CC-0938
    George J. Studemeyer, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 7, 1981.

    John L. Roach, for Claimant.
    Tyrone C. Fahner, Attorney General (Sheila M. King, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

Claimant, herein, seeks an award for personal injuries sustained when he slipped and fell on some ice at the Secretary of State Motor Vehicle Facility at 5401 North Elston Avenue, Chicago, Illinois. The incident occurred on January 9,1979, and the complaint herein was filed on July 30, 1979.

The parties have submitted to this court a joint stipulation wherein the liability of the Respondent has been admitted. In addition, the parties have recommended to this court that an award be entered for $500.00 to the Claimant in full satisfaction of this cause of action.

This court is mindful of its responsibilities in determining the liability of the State of Illinois in actions pending in this court. In that regard, it is the exclusive province of the judges to determine the amount of damages to be awarded where liability is present.

In the claim herein, the Respondent has admitted its liability. Therefore, the only question before this court is . one of damages. Where the parties have stipulated to an amount of damages by mutual agreement, this court will not attempt to second guess the parties where it is apparent that the agreement has been reached in good faith and with authority on both sides. Such is the case here.

It is hereby ordered that an award be made to George J. Studemeyer, Claimant, in the amount of $500.00 (five hundred dollars and 00/100’s) in full and complete satisfaction of any and all claims arising from the incident that is the subject matter of the complaint herein.


text:
    (No. 79-CC-0949
    Charles W. McNeil, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 3, 1980.

    C. E. Heiligenstein, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This matter arises pursuant to section 8(b) of the Illinois Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(b)), as a claim by Claimant, Charles W. McNeil, for back salary allegedly due from February 1, 1974, to August 16, 1977. The Respondent has stipulated to the facts relating to this claim.

Claimant was an employee of the Department of Corrections of the State of Illinois. On February 1, 1974, he was promoted from the position of sergeant to that of correctional lieutenant. He was placed at step 3 of the pay scale for lieutenants. He should have been placed at step 4 because on April 1, 1974, he was due for a regular annual “satisfactory performance increase” as a sergeant. It was and still is the customary practice followed by the Department of Corrections and all other agencies subject to the rules of the Department of Personnel to grant an annual satisfactory performance increase prior to promotion in the event that the promotion takes place no more than 90 days before the anniversary date of the promoted employee. Apparently, Claimant satisfied this requirement. Therefore, Claimant, in being promoted 60 days prior to receiving his annual satisfactory performance increase, should have been moved to a step 5 pay scale for sergeants prior to his promotion. This was not done. The proper adjustment was, in fact, not made by the Department of Corrections until August 16, 1977.

During the period of time from February 1,1974, to August 16,1977, Claimant was paid $2,301.00 less than he should have been paid if he had been given the proper salary increases.

Claimant filed his complaint for the full back salary on May 18, 1979. The first issue raised by Respondent is whether any or all of Claimant’s claim is barred by the statute of limitation.

Section 22 of Illinois Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.22), provides that “all claims arising out of a contract must be filed within five years after it first accrues.” Each party concedes that the claim for wages earned prior to May 18,1974, should be barred by this statute of limitations.

“Generally, where a person is employed under a general agreement which fixes no term of service, and continues in such employment for a long period of time, the hiring will be treated-as a hiring by the year; and the statute of limitations will ordinarily bar a claim for all services rendered more than five years immediately preceding the commencement of the action, unless there is evidence to take the case out of the operation of the statute.” (In re Estate of Franke (1970), 124 Ill. App. 2d 24, 259 N.E.2d 841, 845.) Since there is no evidence, nor has Claimant alleged any facts to remove the case from the operation of the applicable statute of limitations, the claim as to wages prior to May 18, 1974, is barred. The parties have stipulated that this sum is $164.50.

Respondent also argues that the entire claim of Claimant should be barred under the provisions of Ill. Rev. Stat., ch. 127, par. 145. This section provides in part:

“Amounts paid from appropriations for personal service of any officer or employee of the state, either temporary or regular, shall be considered as full payment for all services rendered between the date specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon the effective date of a collective bargaining agreement between the state, or a state agency and an employee group, or payment of funds as an adjustment to wages paid employees or officers of the state for the purpose of correcting a clerical or administrative error or oversight or pursuant to a back pay order issued by an appropriate state or federal administrative or judicial body or officer shall not be construed as an additional payment for work already performed.”

The departmental report of the Department of Corrections filed in this matter indicates that the failure to properly promote Claimant to the required wage scale was due to a clerical or administrative error or oversight. While the departmental report does not use such terminology in excusing the delay, the whole tenure of the report is that the wage increase should have been given but simply was not done so because of oversight. In fact, at one place in the report the director of the Department states that “some time went by before the employee became aware of the error.” There can be no doubt from reading the departmental report that administrative error or oversight caused Claimant’s not being paid the proper wages. The report of the departmental agency is to be considered prima facie evidence of the facts contained in the report (Rule 14 of the Rules of the Court of Claims).

The portion quoted above from paragraph 145 of chapter 127 specifically excludes “payment of funds as an adjustment to wages paid employees or officers of the State for the purpose of correcting a clerical or administrative error or oversight.” Therefore, this statute has no application to bar the portion of Claimant’s claim not already barred by the statute of limitations.

It is therefore ordered that the Claimant be and is hereby awarded the sum of two thousand two hundred thirty-six and 50/100 ($2,236.50) dollars.


text:
    (No. 79-CC-1001
    Ravenswood Hospital and Medical Center, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 28, 1980.

    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, for Claimant.
    Tyrone C. Fahner, Attorney General (James M. Hofert, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim is before the Court on the motion of Respondent to dismiss, the objection thereto filed by Claimant, and Respondent’s motion to strike said objection.

Claimant filed this claim seeking compensation for medical services rendered to Emerson Glaspie during the period between May 6, 1976, and May 12, 1978, for reason that Mr. Glaspie was allegedly eligible for public aid assistance during that time and payment of the benefits was denied because the appropriation therefore allegedly lapsed.

At the outset we find that Claimant’s allegation as contained in the complaint that the appropriation for payment of the benefits had lapsed is incorrect. As the departmental report, which is prima facie evidence and which has not been rebutted, correctly sets out, the funds for which the claim has been made do not lapse. See D.R. item 7, and Ill. Rev. Stat., ch. 127, par. 161.

Moreover, we find that Claimant has failed to exhaust its remedies as required by Section 25 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.25). The Department of Public Aid has made a determination that Mr. Glaspie was ineligible for the assistance benefits. This Court does not review such decision. The Department of Public Aid is charged with the responsibility for determination of eligibility. See Ill. Rev. Stat. 1979, ch. 23, par. 11 — 8 et seq. Said statute also provides for judicial review of the department’s determination pursuant to the procedural provisions of the Administrative Review Act. Thus Claimant did not exhaust its remedy by following through the statutorily prescribed procedures.

It is hereby ordered that this claim be, and the same is, hereby dismissed.


text:
    (No. 79-CC-1095
    Eugene D. Scott, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 28, 1980.

    Eugene D. Scott, pro se, for Claimant.
   Roe, C. J.

Claimant, an inmate of Joliet Correctional Center, Joliet, Illinois, has brought this action to recover the value of three pastel paintings. Claimant is a professional artist and the three paintings in question allegedly had market value of $345.00.

The record establishes that in November 1978, the Department of Corrections arranged to exhibit in the Daley Center, Chicago, Illinois, art work of residents of various institutions of the Illinois Department of Corrections. Claimant was not interested in exhibiting his work, but at the request of Muriel Runyon, chief of volunteer services, Department of Corrections, and Bruce Burger, also of the Department of Corrections, he agreed to exhibit three pastel paintings. All work exhibited had to be offered for sale and Claimant placed a price of $95.00, $100.00, and $150.00 on his three pieces, totalling $345.00.

Some time between 5:00 p.m., November 6, and 8:30 a.m., November 8, 1978, Claimant’s paintings were stolen from the Daley Center.

The Department Report filed by Respondent as Respondent’s exhibit 1 states in part:

“Resident Scott was asked if he would like to display some of his art work. Mr. Scott set his own price for each piece. It was assumed at this institution, by the staff, that the state would be responsible * * *.
The three pieces were taken from the Daley Center sometime between 5:00 P.M. November 6 and 8:30 A.M. November 8, 1978. Resident was informed of loss and told that Muriel Runyon, Chief of Volunteer Services, Department of Corrections, would attempt to have loss compensated in Springfield. The loss was reported and is on file with the Daley Center Security Department. Muriel Runyon attempted to compensate the loss but was finally told that the Department of Corrections would not accept responsibility for the loss. This was told to the resident with the suggestion he pursue his loss through the Court of Claims. . . .
The total value of the art is $345.00 * ®

It appears in the record that Claimant did not want to exhibit his work in the State exhibit at the Daley Center, but did so only because the representatives of Respondent told him that the quality of his work would enhance the exhibit.

The bailment created was not thus for the sole benefit of the bailor, nor for the sole benefit of the bailee, but for the mutual benefit of both bailor and bailee.

Where the bailment is for mutual benefit, the bailee, in the absence of special contract, is held to the exercise of ordinary care with respect to the subject matter of the bailment. (Ill. Law and Practice, vol. 4A, Bailments, chapter 2, section 14, page 517).

However, as stated in Illinois Law and Practice (vol. 4A, Bailments, chapter 3, section 32, page 534), “it is generally the rule that proof of delivery of property in good condition and return by the bailee in a damaged state, or that it was lost or not returned at all, creates a presumption of negligence on the part of the bailee or makes a prima facie case and casts on the bailee the burden of showing that loss or damage occurred without his fault * *

Since Respondent did not see fit to go forward with the evidence in an effort to show the circumstances of the theft and to rebut the presumption of its negligence by showing its exercise of appropriate care in protecting Claimant’s property, Claimant’s prima facie case remains unrebutted on the record.

It is hereby ordered that Claimant be and hereby is awarded the sum of $345.00 (three hundred forty-five dollars and no cents), the market value of the paintings.


text:
    (No. 80-CC-0005
    George H. Simmons, Claimant, v. The State of Illinois, Respondent.

      Order filed October 27, 1980.

    George H. Simmons, pro se, for Claimant.
   Poch, J.

This matter coming to be heard upon the motion of Respondent to dismiss the claim herein, and it appearing to the Court that Claimant has received due notice of said motion, and the Court being fully advised in the premises finds:

A. That the Claimant, George H. Simmons, an employee of the Stateville Correctional Center, was discharged on February 9, 1976.
B. That Claimant filed a grievance action which was settled at Step 4A of the Grievance Procedure within Collective Bargaining Agreement RC-6.
C. That said agreement, executed by the Department of Corrections, modified the original decision by same in regard to the disciplinary action to bé taken in regard to the Claimant.
D. That said agreement purported to award money damages to Claimant and against the State of Illinois.
E. That the Civil Service Commission did not take part in the adjudication of this claim.

That pursuant to the above finding of facts, the court hereby adopts the following conclusions of law.

A. That as a matter of law the settlement agreement in this case, • constituting a reconsideration by the Department of Corrections of its initial decision to discharge the Claimant, was not authorized by statute and was therefore contrary to the appellate court’s decision in Burton v. The Illinois Civil Service Commission (1978), 57 Ill. App. 3d 835, 373 N.E.2d 765.
B. That as a matter of law the procedure set forth in Step 4A, section V, of Collective Bargaining Agreement RC-6, for the adjudication of grievances in regard to discharge proceedings, is contrary to Ill. Rev. Stat. 1977, ch. 127, pars. 63b 110-111, which states that the Civil Service Commission has exclusive jurisdiction to hear all appeals relating to employee discharges.
C. That as a matter of law the settlement agreement, executed in accordance with step 4A, section V, of RC-6, by which damages were awarded against the State of Illinois is directly contrary to the procedural requirements of the Court of Claims Act, Ill. Rev. Stat. 1977, ch. 37, par. 439.1 et seq.
D. That as a matter of law Collective Bargaining Agreement RC-6, Section V, in so far as it provides a procedure for the adjudication of grievance disputes which is contrary to statutory procedures, is void and unenforceable pursuant to Selby v. Health & Hospital Governing Commission of Cook County (1974), 22 Ill. App. 3d 632, 317 N.E.2d 642.
E. That as a matter of law the failure by all parties in this case, to follow procedures enjoined upon them by the legislature, for the adjudication of employment disputes, renders the settlement agreement unenforceable pursuant to Chicago Rys. Co. v. Commerce Commission (1929), 336 Ill. 51, 167 N.E. 846.

That pursuant to the above findings of fact and law, it is hereby ordered, that the Respondent’s motion be, and the same is, hereby granted and the claim herein be and is hereby dismissed.


text:
    (No. 80-CC-0116
    Frank J. Dungleman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 6, 1980.

    Frank J. Dungleman, pro se, for Claimant.
   Roe, C. J.

This claim was filed by a prisoner at Pontiac Correctional Center for the value of a watch which disappeared from his cell. Claimant had requested the officer in charge to put his cell on “deadlock” while he was performing his ordinary duties in the yard. The only evidence which tended to show that the cell was in fact placed on deadlock was the hearsay upon hearsay testimony of Claimant’s witness, the officer to whom the incident was reported: “The resident asked the officer * * * and he said he did place the cell on deadlock.” Upon returning to his cell, Claimant discovered that it - was off deadlock and immediately reported it to an officer who confirmed that it was off deadlock. The watch was missing at this time. A shakedown was then conducted but the watch was not found. It should be noted that a cell on deadlock cannot be opened except by key and will remain closed when other cells may be opened all at once.

If the State has a duty to safeguard the property of inmates or if the State at least has a duty to deadlock a prisoner’s cell upon request, Claimant attempted to have this done by following proper procedures. This appears to be an issue of first impression in this Court. We are reluctant to interfere with what may fall within the realm of discretionary duties of prison administration. Neither party has cited any cases or made arguments on the point.

While we make no holding as to what the duty of the State is under circumstances as are involved here we do find that, assuming arguendo that the State had some duty, Claimant has failed to convince us that a breach of some duty proximately caused the loss complained of. It is entirely possible to infer from the sparse evidence that Claimant’s cellmate requested that the cell be taken off deadlock, assuming it was so locked in the first place. It is also possible that another prisoner was able to steal the watch by reaching through the bars. A number of other explanations for its disappearance can be imagined.

Based on the evidence before us we feel that this claim should be, and hereby is, denied.


text:
    (No. 80-CC-0157
    Deborah L. Onley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 17, 1981.

    Bruce D. Wellman, for Claimant.
   Poch, J.

This case comes before the court upon the joint stipulation of the parties, by which the Respondent and the Claimant agree to the entry of an award in the amount of $1,100.00 for injuries suffered by Claimant on July 8, 1979, at Lowden Memorial State Park as a result of a defective swing.

The court finds that there are no disputed questions of fact or law, and that there is no controversy as to the fairness and reasonableness of the agreed award.

While the court is not bound by the joint stipulation of the parties in its determination, it has no inclination to interpose a controversy where none appears to exist and where the parties have made a joint stipulation fairly and with full knowledge of the elements contained therein.

The court hereby awards to the Claimant the sum of $1,100.00 (eleven hundred dollars and no cents).


text:
    (No. 80-CC-0171
    Fay C. Childress, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 29, 1981.

    Peter J. Studl, for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

Claimant was injured when a handicapped handrail at the State of Illinois Building collapsed while she was using it for support. The incident occurred on January 26, 1979, and Claimant filed her complaint on August 3, 1979.

The parties have filed a joint stipulation with the court wherein the Respondent has admitted that its negligence was the cause of Claimant’s injuries.

Although the complaint requested $100,000.00 in damages, the parties have recommended that an award be entered in Claimant’s favor for $6,000.00

It is the exclusive province of this court to determine the validity of claims against the State of Illinois. However, where the State admits that it was negligent and that negligence was the cause of a Claimant’s injuries, the question of liability is no longer in issue. Such is the case herein.

Regarding the question of damages in such a situation, this court will not set aside the recommendation of the parties where the amount of damages has been agreed to with full authority. In this case, we concur with the parties’ recommendation.

It is hereby ordered that an award of $6,000.00 (six thousand dollars and no cents) be entered in favor of Fay C. Childress, in full and complete satisfaction of any and all claims arising out of the cause of action involved herein.


text:
    (No. 80-CC-0195
    Fitch/Larocca Associates, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 28, 1980.

    Brent L. Amato, for Claimant.
    Tyrone C. Fahner, Attorney General (Carl J. Klein, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim coming on to be heard on the joint stipulation of the parties hereto, and the Court being fully advised in the premises;

This court finds that this claim is for an Assignment of Contract from the Illinois Building Authority, accepted on 9-22-72 by John Moore, Acting Executive Director of the Capital Development Board. An investigation of this claim by the Capital Development Board determined that money was appropriated for this expenditure by appropriation No. 141-9239-600-4373 FY 74, Kankakee Community College, and that a total of $60,043.46 was remaining in this appropriation at the time of the lapsing of said appropriation. The amount due of $9,695.67 would have been paid in the regular course of business had the claim been presented to the proper office at the appropriation time. The sole reason said claim was not previously paid is due to the lapse of the appropriation for the period during which the debt was incurred, the same having been confirmed by the written report of the Capital Development Board of June 3, 1980. (A copy of said report being attached to the joint stipulation of the parties.)

It is hereby ordered that the sum of $9,695.67 (nine thousand six hundred ninety-five dollars and sixty-seven cents) be and is hereby awarded to Claimant, Fitch/ Larocca Associates, Inc., in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 80-CC-0196
    Fitch/Larocca Associates, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed October 16, 1980.

    Burditt and Calkins, for Claimant.
   Holderman, J.

This matter comes before the Court upon Respondent’s motion to dismiss and Claimant’s objection to said motion.

Respondent’s motion sets forth that the voucher upon which this claim is based was issued on September 16, 19.75, over three years prior to the filing of the complaint, and that, therefore, the two-year statute of limitations had run and this cause should be dismissed.

Claimant’s objections to said motion sets forth that this claim originated out of a contract and therefore the applicable statute of limitations is five years, as set forth in section 22(a) of the Court of Claims Act, and not section 22(f). (Ill. Rev. Stat. 1977, ch. 37, par. 439.22.) Claimant also cites 25 Ill. Ct. Cl. 109, which states that “every claim arising out of a contract shall be forever barred from prosecution therein unless filed within five years after it first accrues.”

It is hereby ordered:

That Respondent’s motion to dismiss be, and the same is, denied, and Claimant is awarded the sum of $1,803.03.


text:
    (No. 80-CC-0232
    Ronald Aldrich, Claimant, v. The State of Illinois, Respondent.

      Order filed August 13, 1980.

    Claudon, Lloyd and Barnhart, Ltd., for Claimant.
   Per Curiam.

This cause coming to be heard on the joint stipulation of the Claimant and the Respondent and the Court being fully advised in the premises;

It is hereby ordered that the joint stipulation of. the Claimant and the Respondent be and the same is hereby granted and the claim herein is awarded in the amount of $2,352.60 (two thousand three hundred fifty-two and 60/100 dollars).


text:
    (No. 80-CC-0474
    Barry Thiersch and Globe Glass and Trim Company, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 27, 1981.

    Barry Thiersch and Globe Glass and Trim Company, pro se, for Claimants.
   Poch, J.

The record in this cause indicated that this claim was filed against the Illinois Environmental Protection Agency and that this claim was filed for reimbursement for a windshield which was damaged when a rock was thrown into the air by a lawn mower being operated by an employee of the Illinois Environmental Protection Agency. The Claimant’s automobile was properly parked in a lot restricted to employees, arid had the proper parking sticker showing. The Attorney General has submitted a stipulation by Respondent based on the information forwarded to his office by said department, as evidence by the departmental report attached to the stipulation by Respondent. Accordingly, this Court finds that the cost of replacing this windshield was usual and customary in the area where it was damaged. No part of this claim has been paid and total outstanding is $135.44.

It is hereby ordered that the Claimants, Barry Thiersch and Globe Glass and Trim Company, be awarded, in full accord and satisfaction of any and all claims presented to the State of Illinois under the above captioned caúse the sum of $135.44 (one hundred thirty-five and 44/100 dollars).


text:
    (No. 80-CC-0841
    Springfield Van and Storage Company, Claimant, v. The State of Illinois, Respondent.

      Order filed April 30, 1980.

      Order on motion to vacate and amend filed July 16, 1980.

    Fred Gain, for Claimant.
   Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss and Claimant’s objections to said motion.

Respondent’s motion to dismiss is based on the premise that Claimant’s claim exceeded the limitation of the contract amount. The contract had a $20,000.00 limitation figure. Prior to June 1,1979, the limitation had not been exceeded and there was approximately $1,921.92 remaining unspent out of the total contract amount.

During the month of June, five separate and distinct moves were made by Claimant on behalf of Respondent in the total amount of $786.65. As of June 27, 1979, a balance remained on the contract amount of $1,135.27.

On June 28, 1979, Claimant was requested to move some furniture over a weekend for the Department of Public Aid, a move which if it had occurred as stated, would have involved less than $1,000.00 and been within the limitations of the contract and the appropriations (on which $1,135.27 remained). Claimant loaded the moving trucks and it was then determined that the carpet was not finished, elevators which Claimant had been informed would be available were not available, and considerable overtime was involved, which raised costs from $1,000.00 to $3,045.96.

The record discloses that the delay was caused not by Claimant but by the Respondent and that had Claimant not provided the services it did provide, service would have been disrupted.

The Court finds that the amount remaining unpaid on the contract amount is $1,135.27.

It is hereby ordered:

That an award in the amount of $1,135.27 be entered in favor of Claimant.

ORDER ON MOTION TO VACATE AND AMEND

Holderman, J.

This matter comes before the Court upon stipulation to vacate order heretofore entered and entry of an amended order, a copy of which stipulation is attached to this order.

An order was entered by this Court on April 30, 1980, granting an award to Claimant in the amount of $1,135.27. Respondent’s stipulation states that said order should be vacated and that the correct amount due Claimant is $3,963.12.

It is hereby ordered:

Motion to vacate order previously filed by Claimant is granted and a new award is hereby entered in favor of Claimant in the amount of $3,963.12.


text:
    (No. 80-CC-0877
    Stanko Packing Company, Claimant, v. The State of Illinois, Respondent.

      Order filed May 6, 1981.

    Van Steenberg, Brower, Chaloupka, Mullin & Holyoke (Steven C. Smith, of counsel), for Claimant.
   Poch, J.

On the sixth day of May, 1981, this matter came on for the Court’s consideration upon the stipulation of the parties. The Court after having considered the stipulation and the files in this case and being duly advised in the premises finds as follows:

1. The Court has jurisdiction of the parties and the subject of this action.

2. The Respondent ordered by Purchase Order No. 307165 six thousand (6,000) pounds of Frozen Beef Spencer Rolls (hereinafter, Spencer Rolls) from the Claimant on or about February 5, 1979. Pursuant to the order, the Claimant shipped on February 21, 1979, six thousand twenty-five and a half (6,025%) pounds of Spencer Rolls to the Pontiac Correctional Center where they were received on February 22, 1979. The contract price was $2,677 per pound. The total contract price was $16,130.26.

3. Of the six thousand twenty-five and a half (6,025%) pounds of Spencer Rolls received at the Pontiac Correctional Center, the Respondent, due to spoilage and trimming of the product, was only able to use:

1,107 lbs. okay as received at $2,677 $2,963.44

2,533 lbs. converted to ground beef at $1.26 3,191.58

2,385 lbs. trimmings (not used) -0-

Total $6,155.02

4. That at all times relevant to the order and delivery of the Spencer Rolls, both parties to these proceedings acted in good faith and pursuant to their respective understandings of applicable laws and regulations pertaining to the contract and contract specifications. The entry of this order shall in no way prejudice the Claimant’s right to pursue any remedies against third parties who may be liable in this matter.

It is therefore ordered, adjudged and decreed that the Claimant’s claim herein should be and hereby is allowed in the amount of $6,155.02 (six thousand one hundred fifty-five dollars and two cents) and that each party to these proceedings shall bear its own costs.

It is so ordered.


text:
    (No. 80-CC-0890
    John Sarantopoulos, Claimant, v. The State of Illinois, Respondent.

      Order filed October 22, 1980.

    Norman H. Small, for Claimant.
   Holderman, J.

Claimant filed a claim seeking recovery for personal injuries arising out of an incident occurring February 7, 1978. A notice of intent to file a claim was prepared addressed to the Attorney General and to the Clerk of the Court of Claims. The Court of Claims Act provides that the notice be filed in the office of the Attorney General and in the office of the Clerk of the Court of Claims. The filing in the Court of Claims office was on July 3, 1978; no filing was ever made in the office of the Attorney General.

On January 17, 1980, Respondent moved to dismiss on the grounds that notice of intent to sue was not served in the office of the Attorney General within 6 months of the accident and that the Attorney General was not aware of the claim until December 1979. Section 22 — 1 of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.22 — 1) requires notice to be served in the office of the Attorney General within 6 months and if not so filed, section 22 — 2 requires dismissal of the action “and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims * *

On March 11, 1980, this Court dismissed the complaint for defective service causing the Court to lose jurisdiction.

On April 15, 1980, Claimant moved to dismiss the previous order of dismissal. This was 35 days after the order of dismissal had been entered by the Court.

The motion cited, Williams v. Medical Center Commission, 60 Ill. 2d 389, 328 N.E.2d 1, which was to the effect that a suit filed in the Circuit Court satisfies any statutory requirements for notice to the State.

The Circuit Court suit in the present instance, was filed January 22, 1980, in the Circuit Court of Cook County against one Jules Williams, case no. 80-L-1740. Jules Williams was a State employee at the time of the accident.

On July 21, 1980, our previous order of dismissal was vacated based on Williams v. Medical Center Commission, supra, cited by Claimant. The cause also was ordered to be heard by a Commissioner.

On August 21, 1980, Claimant responded to Respondent’s motion to vacate the July 21, 1980 order. The motion was filed under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). In his motion Claimant requested that the Court permit the prior order of reinstatement to stand.

On September 4, 1980, Respondent moved to strike the Claimant’s petition under section 72 for relief as prayed for in its April 15, 1980, petition. (The April 15, 1980, petition had requested that we vacate our original order of dismissal.)

The ground listed in the State’s motion was that section 72 was not complied with. Section 72 requires that the petition include the following:

1. A meritorious defense or claim.
2. Due diligence in presenting the defense or claim in the original action.
3. Through no fault of his own an error of fact was made or defense or claim was not raised; and
4. Due diligence in filing section 72 petition.

Motion to vacate final orders filed after 30 days of entry of the final order must comply with section 72, notwithstanding that section 50 of Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 50), permits the Court to act after 30 days, if the petition to. do so is addressed to the discretion of the Court in the exercise of equitable powers. See I.L.P. 23, ch. 9, sec. 193 (405) and sec. 199 (420). See also International Ind. Leasing Ltd. v. Coleman & Co., 66 Ill. App. 3d 884.

Failure to allege, in a section 72 petition, facts sufficient to entitle petitioner to relief is fatal to that petition.

In the Williams v. Medical Center Commission, supra, case, the suit in the Circuit Court was against an “arm of the State”. There the Complaint was filed March 24, 1973 based on an injury that occurred on December 16, 1972. There the defendant, as an “arm of the State” had notice from the beginning that the plaintiff was trying to enforce a claim against it. In our case here, the reason for the Statute of Limitations fails. In our case, no prior suit was filed in the beginning against an “arm of the State”. This Williams case is not controlling.

We now conclude that section 22 — 2 of the Court of Claims Act is controlling and that the petition under section 72 of the Civil Practice Act was insufficient to warrant relief from the order of dismissal.

A meritorious defense was not stated; Claimant’s error in not giving proper notice was not shown excusable; and due diligence in filing under section 72 was not demonstrated. Section 72 requires that the petition allege facts sufficient to éntitle him to relief and failure to do so is fatal.

Motion to dismiss complaint for defective notice under 22 — 2 is hereby granted. All prior orders superseded by this order.


text:
    (No. 80-CC-0947
    Marzell Aaron Spurlack, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 13, 1981.

    Marzell Aaron Spurlack, pro se, for Claimant.
   Roe, C. J.

Claimant seeks an award from Respondent in the sum of $5,000.00 due to a back injury allegedly sustained by the Claimant when the chain supporting his bed at Menard Correctional Center broke and he was injured. Claimant alleges that the injury took place during the early morning hours of June 1, 1979.

Claimant stated that he was well aware of the appearance of the chain that supported his bed in his cell at Menard Correctional Center. Claimant testified that prior to the incident in question, he did not notice anything unusual about the chain “at all.” Claimant testifies that if he had noticed any deficiency with respect to the chain supporting his bed, he would have reported it and had it repaired. Claimant further testified that he had as much opportunity to examine the chain as anyone, since he was a resident in the cell where the chain was located. Claimant testified there was nothing structurally about the appearance of the chain which would have given any advance notice that it was liable to break. Claimant charges Respondent with the duty to periodically check the chains and bunks to make sure that the chains are not liable to break; yet, Claimant is on the horns of a dilemma because Claimant testified under oath that there was no obvious deterioration of the chain or the bunk that could have been discovered even if checks had been made by Respondent.

The Respondent is not an insurer of the safety of all persons subject to its jurisdiction in the Department of Corrections. Although Claimant appears to be free of all contributory negligence with respect to the injury he sustained, there has been no negligence shown on the part of Respondent with respect to the unfortunate incident which resulted in Claimant’s injury.

It is therefore ordered that Claimant’s claim be, and hereby is, denied.


text:
    (No. 80-CC-0948
    Barbara A. Weiner and Weiner & Eglit, Ltd., Claimants, v. The State of Illinois, Respondent.

      Opinion filed December 15, 1980.

    Weiner and Eglit, Ltd. (Barbara A. Weiner, of counsel), for Claimants.
    Tyrone C. Earner, Attorney General, for Respondent.
   Roe, C. J.

This cause comes on to be heard on the motion by Claimants for summary judgment which was filed July 17, 1980. The Respondent has not objected.

As alleged in Claimants’ motion we find that the facts are not in dispute. Pursuant to Ill. Rev. Stat. 1979, ch. 110½, par. 11a — 106 Judge Walter Dahl, Presiding Judge of the Circuit Court of Cook County, Probate Division, appointed Claimants to act as guardians ad litem and counsel for 29 persons for whom petitions declaring them disabled were pending. This took place in January, 1979. Claimant Weiner accepted the appointment and performed the required services. After completion of the appointed duties, the Court, having determined that the 29 persons each were indigent and unable to pay for the services rendered, entered an order directing that the State pay to Ms. Weiner a fee of $60.00 for her work with respect to each individual or a total of $1,740.00. Ms. Weiner has sought payment from the Probate Court, from the Mental Health Advocacy and State Guardianship Commission and from the Illinois Department of Mental Health. Each of those agencies claimed that it did not have an appropriation from which to pay her. As a result Ms. Weiner brought this claim on behalf of herself and her law firm.

We also find that Claimants are entitled to judgment as a matter of law. In so doing we have not considered any of the arguments set forth by Claimants in their memorandum in support of their motion for summary judgment. At this point in time they are irrelevant in view of the fact that there was an appropriation made by the General Assembly to pay for the services rendered by Claimants. See Hayes v. State, Case No. 80-CC-1433, Opinion filed 12/15/80. Sufficient funds have lapsed from which payment can be made.

It is hereby ordered that the motion of Claimants for summary judgment be, and hereby is, granted.


text:
    (No. 80-CC-0971
    Howard Buxbaum and The Cincinnati Insurance Co., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 13, 1981.

    North, Ohlson, Logli, Boyd & Condon (Scott M. Boyd, of counsel), for Claimants.
    Tyrone C. Fahner, Attorney General (Rodney Cavitt, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim was brought pursuant to the Damages Caused by Escaped Inmates of State Controlled Institutions Act, Ill. Rev. Stat. 1979, ch. 23, par. 4041.

The evidence showed that on July 4, 1979, Ernest J. Wardlow and Donald Hanson, both inmates of the Winnebago Community Correctional Center, located at 305 South Court Street, Rockford, Illinois, escaped from the institution and stole Claimant Howard Buxbaum’s automobile, totalling it in a collision.

The complaint does not allege negligence on the part of Respondent in permitting the escape nor did Claimants introduce any testimony thereon. We have traditionally held that the State must be negligent in permitting the escape before it will be held liable therefor. However, the Respondent did not object to the complaint, called no witnesses at the hearing, and introduced no documentary evidence.

In Finch v. State of Illinois, 22 Ill. Ct. Cl. 376, this Court held that in suóh a situation the doctrine of res ipsa loquitur applies:

“The record is silent as to the patient, whether he had on previous occasions tried to escape, and whether he was a patient who should have been permitted to work in the fields without supervision. In fact we have nothing to govern ourselves as to whether or not the State was negligent in allowing this patient the freedom which he apparently had, so that the truck in question was stolen, and consequently damaged.
In the absence of such a showing, we think claimant was correct in his advancement of the doctrine of res ipsa loquitor, and that the burden would be upon respondent to make some showing as to this patient, i.e. whether or not he was one, who could be trusted in the manner in which he was in this particular case to work out in the field, or whether he should have been confined to the institution under close supervision. There being nothing in the record pertaining to this patient, other than the fact that the truck was stolen by him and damaged, we have no alternative but to find in favor of claimant.”

The Court made a similar holding in Redenbaugh v. State of Illinois, 22 Ill. Ct. Cl. 306:

“Since respondent did not offer any evidence in rebuttal that would show that reasonable efforts were made to prevent the escape of inmates, or any other facts or circumstances surrounding their escape, the Court must conclude that there were no facts and circumstances.”

It was established by the preponderance of the evidence that $1,550.00 was the fair market value of Claimant’s car on the day it was totalled.

The death of Claimant was suggested in the record as required. Therefore it is hereby ordered that Becky Buxbaum, administrator, and The Cincinnati Insurance Company be awarded $1,550.00.


text:
    (No. 80-CC-1024
    Joseph Weaver, Claimant, v. The State of Illinois, Respondent.

      Order filed March 6, 1981.

    Jones and Huszagh, for Claimant.
   Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss the claim heretofore filed.

Respondent’s motion states that notice was not filed within six months of the alleged date of injury, as required by section 22 — 1 of the Court of Claims Act, Ill. Rev. Stat., ch. 37, par. 439.22 — 1.

The complaint alleges that the injury occurred on the 7th and 8th day of July, 1977, and that on March 16, 1979, Claimant filed a notice of personal injury, as required by the above statute.

Claimant, in answer to Respondent’s motion to dismiss, states that he was under a commitment order of the Circuit Court of Cook County and therefore was not required to give the notice under the disability section of the statute above set forth.

Respondent calls attention to the fact that Claimant attempted to verify his own complaint which, in the opinion of Respondent, would be contrary to the disability statute. Respondent further takes the position that if Claimant is under legal disability, then his complaint should have been filed by his conservator.

It is the Court’s opinion that the disability referred to, which would relieve the Claimant of giving notice as required by section 22 — 1 of the Court of Claims Act, Ill. Rev. Stat., ch. 37, par. 439.22 — 1, is a legal disability when a Claimant has been found incompetent by a Court order.

It is hereby ordered:

That Respondent’s motion to dismiss be, and the same is, granted and this cause is dismissed.


text:
    (No. 80-CC-1036
    Howard Johnson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 15, 1981.

    Howard Johnson, pro se, for Claimant.
   Roe, C. J.

This claim arises under Ill. Rev. Stat. 1979, ch. 23, par. 4041, an act concerning damages caused by escaped inmates of institutions over which the State has control. The record indicates that on September 29, 1979, an inmate of the Vandalia Correctional Center escaped and went on a crime spree. After being apprehended about an hour and one half after the escape he was charged with commission of six felonies, including aggravated kidnapping, escape, unlawful restraint, criminal damage to property and two counts each of burglary and theft over $150.00.

The incident involving the charge of criminal damage to property gave rise to the claim at bar. While driving a stolen car, the inmate went around a police barricade and left the road at Claimant’s farm. In so doing he drove through an aluminum gate, six or eight fences, a hog lot, and a hedge row, and finally surrendered.

Claimant seeks compensation for the damages caused to his fence only. His bill of particulars includes a receipt for $202.81 for materials. He is also claiming $185.00 for the labor involved in the repairs. Although he has not documented the costs of labor with any receipts, the Court finds that $185.00 is a reasonable charge.

We have consistently held that the State is not strictly liable in a cause of action such as the instant one. American States, Inc., et al. v. State, 23 Ill. Ct. Cl. 47. Similarly, the State is not an insurer of actions involving escaped inmates. Voll v. State, 77-CC-1515 and 1516. In order for Claimant to recover, it must be shown that the State was negligent. Paulas v. State, 24 Ill. Ct. Cl. 215.

The departmental report issued by the Illinois Department of Corrections, which according to Rule 14 of the Rules of the Court of Claims is prima facie evidence of the facts set forth therein, establishes that at the time the damage occurred, the authorities were in hot pursuit of the recently escaped resident. While this was laudatory we do not think it relevant to the issues here. It need only be shown that the State was negligent in allowing the escape. On this issue the evidence shows that an internal investigation of the circumstances surrounding the escape revealed that: (1) the posted instructions as prescribed and revised in August of 1979 were not followed by Security Personnel even though they were accessible to all, and (2) there was an insufficient number of Security Personnel available and/or present at the recreation yard to properly supervise residents entering the recreation area at the time of the escape.

We hold that under these circumstances the State has been shown to have been negligent in allowing the escape. It is hereby ordered that Claimant be, and hereby is, awarded the sum of $387.81 (three hundred eighty seven and 81/100 dollars) in full satisfaction of any and all claims arising out of this cause of action.


text:
    (Nos. 80-CC-1112, 80-CC-1160 cons.
    Mark W. Edwards and Jeffrey D. Cottengaim, Claimants, v. The State of Illinois, Respondent.

      Opinion filed December 9, 1980.

    Mark W. Edwards and Jeffrey D. Cottengaim, pro se, for Claimants.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

These two claims involve substantially similar facts and issues of law and were consolidated by order of a commissioner of the Court to facilitate presentation of the cases at hearing. The facts involved are as follows.

Claimant Mark Edwards is employed as an automotive mechanic with the Department of Administrative Services, State of Illinois. Claimant Jeffrey Cottengaim is employed as a mechanic’s helper by the same department. Both Claimants are, and at all times relevant in this case were, assigned to a maintenance site located at 640 Lincoln Avenue in Springfield, Illinois, at their respective positions and were charged with the responsibility of repairing State-owned equipment. The site is jointly occupied by the Department of Transportation and Administrative Services. The area occupied by Administrative Services was secured by electronic bay doors, but the section occupied by the Department of Transportation was not kept locked.

The premises were subjected to burglaries on April 2,1977, and again on November 3,1979, the latter giving rise to the claim at bar. Identical methods were used in the commission of both burglaries. Unknown parties apparently gained access by climbing over a chain link fence, entering through the Department of Transportation side of the building, and then proceeding through to the Administrative Services section. Neither time was there any sign of forced entry. Next, they loaded parts and tools into State trucks, opened the bay doors, and drove off with the stolen items.

After the first burglary the Claimants had repeatedly requested from their superiors additional security. A request was even made for materials with which Claimants could construct security devices on their own. However, no additional security measures were taken between April 2, 1977, and November 3, 1979.

The testimony further showed that as a condition of employment each of the Claimants was required to furnish his own tools. Claimant Edwards testified that he had a large tiered tool box which weighed in excess of 400 pounds and that it would not fit into an automobile. The same was true of Mr Cottengaim, although his was somewhat smaller. Each had always left his tools on the premises because of the difficulty of moving the same and also because they were subject to emergency call for repairs on State road maintenance vehicles, especially during times of snow removal.

Claimants are seeking compensation for the loss of their tools occasioned by the burglary. In support of their allegation as to the value of the items stolen they submitted invoices which were attached to their complaints which showed the variety and costs of the items. They further stated that the tool suppliers with whom they deal allow them to maintain a revolving inventory of tools for which they pay continually.

The issue presented for determination by the Court is whether or not the facts stated above constitute a bailment or, alternatively, whether or not, or under what circumstances, the employer has a duty to safeguard the property of an employee and the facts presented show negligence and breach of that duty on the part of the State.

There is a paucity of recent case law on this subject from the Court of Claims. Early cases tended to go both ways on the issue. However, they were decided under a prior Court of Claims Act whereby the Court had jurisdiction or power to make awards which should be made “in equity and good conscience.” The seeming inconsistencies among them can be explained by the equities of the particular circumstances. They are clearly no longer relevant.

Two cases decided under a later Act (since superseded) whereby the Court still had equitable jurisdiction, although it did not enter into the decision were Pacha v. State (1958), 22 Ill. Ct. Cl. 741 and Klimek v. State (1952), 21 Ill. Ct. Cl. 145. In Pacha an employee of the State lost personal property which was being transported by an airplane belonging to the Illinois National Guard. The plane crashed and the property burned. The case was dismissed without a factual hearing on three grounds. First, the statute of limitations had expired. That has not happened in the case at bar. Second, the pleadings were improper in form and substance. The Respondent has not objected to the pleadings in the instant case. Third, the Court stated:

“In prior decisions, this Court has held that the State is not an insurer of the property of its employees. In event an employee elects to use personal property in his employment, he assumes the risk of its loss. (Citing Klimek, supra.)

In the case at bar Claimants are not seeking to hold the State liable as an insurer but have charged the State with negligent conduct. Their situation is also distinguishable in that the property lost was not personal effects but tools which were used by them in the performance of their job and which the State required them to provide on their own. Furthermore, the claim was denied in the Klimek case on the basis that the Claimant failed to prove the State negligent.

There is a similar lack of case law from the judicial courts in Illinois. Only one case presenting a similar factual situation could be found: Berglund v. Roosevelt University (1974), 18 Ill. App. 3d 842, 310 N.E.2d 773. In that case the plaintiff was a full-time student at Roosevelt University and also served as a photographer and editor of the school newspaper. Whether the plaintiff was in actuality a student or employee of the university was not deemed relevant by the Court in its determination of the existence of a bailment relationship. The school provided the plaintiff with an office and photo dark room in a university building. Plaintiff did not request permission to do so but, like his predecessor stored his own camera equipment which was used by him in his capacity as photographer for the paper on the premises. It was stolen and plaintiff brought an action on two separate legal theories, breach of an implied bailment contract and negligence. The Court found, as we do here, that the negligence theory is essentially bottomed upon a bailment relationship and dealt with the case as a bailment action.

The Court stated that under proper circumstances, a bailment relationship can be established between an employee and employer. It further set forth basic factors to be considered:

“Bailment is defined as the rightful possession of goods by one who is not an owner. The characteristics common to every bailment are the intent to create a bailment, delivery of possession of the bailed items, and the acceptance of the bailed items by the bailee, (citation omitted) In determining the existence of an implied-in-fact bailment, one must analyze the facfs surrounding the transaction, such as the benefits to be received by the parties, their intention of the kind of property involved, and the opportunity of each to exercise control over the property, (citation omitted) Supra, 310 N.E.2d 773, at 775, 776.”

The Court in Berglund held against the plaintiff because the plaintiff failed to prove knowledge on the part of the defendant of the storage of the items stolen. Knowledge was said to be essential to prove proper delivery and acceptance. Physical control over the property allegedly bailed and an intention to exercise that control are needed to show that one is in possession of the bailed item. The case does stand for the proposition that under proper circumstances a bailment relationship can exist however, and we -find that the proper circumstances exist and were proven in the case at bar.

All of the basic elements of an implied-in-fact bailment were established. The property was stored on State property in a State building. The State had knowledge of the fact that it was in possession of the property because of the fact that it required these employees to use their own tools. By requiring Claimants to provide their own tools the State would have knowledge of their lack of mobility because of the nature and number of tools required. Furthermore Claimants made known to the State the circumstances when they requested materials to construct their own security devices. A routine investigation of the first burglary should also have made the State aware.

We also find that the tools being located on the premises was a matter of mutual benefit to both parties. The Claimants received the benefits of employment. The State received the benefit of having an efficient maintenance shop during emergency repairs. The State also would not have to expend money to provide these tools for the maintenance shop since, by the testimony, it would have been virtually impossible for the employees to transport the tools to and from their place of employment on a day to day basis.

As we have said in numerous bailment cases involving property of State prisoners and inmates, the loss of bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof, but simply to shift the burden of proceeding or going forward with the evidence. The State did not put forth any evidence. The standard of due care which a bailee must exercise in a mutually beneficial relationship is ordinary care or that which persons of ordinary prudence customarily take of their own goods under similar circumstances. The unrebutted testimony of the Claimants clearly demonstrated that the State did not meet this standard. The State did nothing to restrict access to Claimants’ working area after hours even after it was victimized by a prior burglary. It did not even provide materials to allow the Claimants to construct their own security precautions. Persons of ordinary prudence certainly would have done something, especially considering the value of the items at risk.

We find that the facts of this case constitute an implied-in-fact bailment and that the State did not exercise due care with respect to the bailed property and thereby is liable for the loss sustained.

It is hereby ordered that Mark W. Edwards be awarded $1,318.65 (one thousand three hundred eighteen dollars and sixty-five cents); and that Jeffrey D. Cottengaim be awarded $392.64 (three hundred ninety-two dollars and sixty-four cents).


text:
    (No. 80-CC-1233
    Henry Willis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 3, 1980.

    Henry Willis, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a claim brought by Henry Willis, an inmate of Stateville Correctional Center, to recover the value of the transcript of his 1973 trial in the Circuit Court of Cook County, Illinois, of which he was possessed while incarcerated.

At the hearing of this cause, Claimant has established by the preponderance of the evidence that in the month of February, 1979 the population of Cell House “F”, of which Claimant was a resident, was transferred to Cell House “B” West during the course of a massive shakedown inspection at the institution. When Claimant returned to Cell House “F” after the shakedown, he discovered that his transcript was gone.

From the testimony presented at the hearing the Court finds that the State took actual physical possession of the inmate’s property, and this created a bailment. At the trial of this cause the State presented no testimony to explain the disappearance of the transcript, nor did the State present testimony as to its freedom of negligence.

The transcript consisted of 769 pages. It was established that the cost of a Cook County Circuit Court transcript is $1.00 per page, unless the person desiring the transcript is willing to copy it himself on a copy machine in the Clerk’s Office at ten or 15 cents per page. It was established at the hearing that there was no person known to the Claimant who could copy the record for him on the copy machine in the Clerk’s Office. Therefore the replacement cost to Claimant is $769.00.

It is therefore ordered:

That Claimant be, and hereby is, awarded the sum of seven hundred sixty nine and 00/100 ($769.00) dollars.


text:
    (No. 80-CC-1433
    Richard G. Hayes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 15, 1980.

      Order awarding compensation filed May 18, 1981.

    Richard G. Hayes, pro se, for Claimant.
    William J. Scott, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This cause comes to be heard on the motion of Respondent to dismiss and the objection thereto filed by Claimant. The facts involved do not appear to be in dispute.

Pursuant to sections 11a — 10(b) and 11a — 10(c) of Ill. Rev. Stat. 1979, ch. 110½, par. 11a — 10, Claimant was appointed and performed services as a guardian ad litem for an alleged disabled adult, Barbara L. Thompson, by an order of a circuit court on December 11, 1979. Said statute provides as follows:

“(b) The court (1) may appoint counsel for the respondent, if the court finds that the interest of the respondent will be best served by the appointment, and (2) shall appoint counsel upon respondent’s request or if respondent takes a position adverse to that of the guardian ad litem. The court may allow counsel for the respondent reasonable compensation.
(c) If the respondent is unable to pay the fee of the guardian ad litem or appointed counsel, or both, the court shall enter an order on the State to pay from funds appropriated by the General Assembly for that purpose, all such fees or such amounts as the respondent is unable to pay.”

By Public Act 80-161, section 83 the General Assembly made an appropriation to the Illinois Supreme Court in an attempt to fund this program. Said law provides as follows:

“The sum of $25,000.00, or so much thereof as may be necessary, respectively, for objects and purposes hereafter named, are appropriated to the Supreme Court for payment to Court-Appointed Counsel, Guardians ad Litem, and Experts under Article XIa of the Probate Act of 1975.”

On January 15, 1980, a circuit court entered an order providing that Claimant be paid $330.00 for his services rendered as guardian ad litem. In his complaint Claimant has alleged that he made a request for said sum to the Administrative Office of the Illinois Courts of the State of Illinois, and said request was denied on the grounds that the funds appropriated for such payments had lapsed.

According to the motion to dismiss and departmental report Respondent sets forth a different reason for the refusal to pay. The Court takes judicial notice of the date the claim was filed and it is clear that, at that time, the appropriations had not lapsed. However, that issue has been mooted by the passage of time. The issue raised by the motion to dismiss is entirely different.

Respondent argues that the Supreme Court has never accepted any of the monies appropriated by P.A. 81-161, section 80. The reason for the nonacceptance is set forth in the departmental report. Mr. Roy Gulley, the director of the Administrative Office of the Illinois Courts, stated therein that the Supreme Court directed him not to accept the appropriation because of the fact that, in their opinion, said appropriation should have been made either to the Guardianship and Advocacy Commission or to the Office of the State Guardian. He pointed out that nowhere in the subsidy bill is there any connection with the appropriation for, or payment of, these fees. He further noted that another reason the Supreme Court chose not to become involved in the situation was that the amount of the appropriation was grossly inadequate.

Respondent then cites Ill. Rev. Stat. 1977, ch. 127, par. 166 which states:

“No officer, Institution, Department, Board or Commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless authorized by law.”

Respondent concludes by arguing that as the Supreme Court has not accepted the appropriation because they have no authority under any enabling statute to administer it, and because the Guardianship and Advocacy Commission and the State Guardian have proper authority to administer it but do not have the appropriation this claim should be denied for insufficient appropriations.

Claimant states that section 11a — 10 does not require that the appropriated money be accepted but merely states in pertinent part, “* * * (T)he court shall enter an Order upon the State to pay from funds appropriated by the General Asembly for that purpose * * He states that nowhere in the statutes is there a requirement that an appropriation be accepted. He further argues that no State agency should have the power to disobey a valid court order by merely refusing to accept money which has been appropriated for the purpose for which the court order was entered.

We decline to decide whether or not a State agency has the power to refuse to accept an appropriation and yet incur obligations to pay these. As we view the case, an appropriation was made for the purpose for which Claimant has filed his claim. It is clear that sufficient funds remain from that appropriation from which to pay this claim. It is also clear that said appropriation has lapsed. We feel that said circumstances render moot any issue of nonacceptance of the appropriation. Moreover, the obvious intent of the legislature in making the appropriation was that persons in the position of the Claimant in this case be compensated for services rendered.

It is hereby ordered that the motion by Respondent to dismiss be, and hereby is, denied.

ORDER AWARDING COMPENSATION

Poch, J.

The record in this cause indicates that the purpose of this claim is for compensation to the Claimant for services rendered pursuant to sections 11a — 10(b) and 11a — 10(c) of Ill. Rev. Stat. 1979, ch. 110½, par. 11a — 10, where Claimant was appointed and performed services as a guardian ad litem for an alleged disabled adult, Barbara L. Thompson, by an order of the Circuit Court. The Attorney General has submitted a stipulation by Respondent which establishes that there is no dispute of fact. No part of this expenditure has been paid. Money was appropriated under appropriation and fund #001-20110-1900-0400 and sufficient funds for the payment of this obligation have lapsed and were returned to the State Treasury.

This claim has not been paid due to the lapse of the appropriation for the period for which the debt was incurred. This money was appropriated by Public Act 81-161, section 83, by the General Assembly to the Illinois Supreme Court. The Supreme Court has never accepted the money appropriated by this Public Act as the Supreme Court has no authority to administer this program, and also because the appropriation was grossly inadequate. However, this Court has found in its order of December 15,1980, that the obvious intent of the legislature making this appropriation was to compensate persons in the position of the Claimant in this case for services rendered.

Therefore, it is hereby ordered that the Claimant be awarded in full accord and satisfaction of any and all claims presented to the State of Illinois under the above captioned cause the sum of $330.00 (three hundred and thirty dollars).


text:
    (No. 80-CC-1577
    Thomas Byrne, Claimant, v. The State of Illinois, Respondent.

      Order filed August 11, 1980.

    Vitell, Greenfield, Johnson, Goldstein and Gubbins, Ltd., for Claimant.
   Roe, C. J.

This cause coming on to be heard on the motion of Respondent to dismiss, the response thereto by Claimant, and the Respondent’s reply to the response, due notice having been given, and the Court being fully advised;

The basis of Respondent’s motion to dismiss is that Claimant allegedly did not file with the Attorney General the statutory notice of claim for personal injuries. In support of said motion Respondent filed an affadavit. In response to said motion Claimant did not refute the allegation of the Respondent but stated that the notice was directed to the Attorney General. Claimant further argued that he has complied with both the spirit and intent of the notice statute and that providing notice to both the Court and the Attorney General is duplicative. We find Claimant’s arguments unconvincing and hold that Claimant has not complied with the notice requirement of section 22 — 1 of the Court of Claims Act. Ill. Rev. Stat. 1979, ch. 37, par. 439.22 — 1.

There is a paucity of case law which has been recently published on this issue. This is due to two main reasons: (1) the large volume of cases has created a backlog which has slowed down publication of decisions and, (2) it has been the practice of the Court not to publish in full orders summarily dismissing claims in the interest of economy.

In Palmer v. Northern Illinois University, 25 Ills. Ct. Cl. 1, 3 (1964), the Court held that “The notice provided for in * * * (section 22 — 1) is mandatory, and, as stated in section 22 — 2, failure to give such notice shall be sufficient cause for the action to be dismissed with prejudice.”

Again later, the Court stated in Munch v. State, 25 Ill. Ct. Cl. 313, 315, that “This Court has long held that the notice requirements of Sec. 22 — 1 are a condition precedent to the filing of a complaint against the State of Illinois, and that, where Claimant does not show complete compliance, this Court has no jurisdiction to hear the claim.” The Court stated further that “All claims on account of personal injury must be summarily dismissed where * * the statutory notice requirements have not met with exact compliance.” Supra at 316.

Therefore Claimant’s argument that his notice was “directed” to the Office of the Attorney General is insufficient. The statute requires “filing.” It should also be noted that Rule 5B of the Rules of the Court of Claims requires that a showing of how and when said notice was served must be attached to the complaint and Rule 9 states that failure to comply with Rule 5 shall be grounds for dismissal. This the Claimant also failed to do.

We are not convinced by Claimant’s argument that he complied with both the spirit and intent of the law. In Telford v. Board of Trustees of Southern Illinois University, 24 Ill. Ct. Cl. 416, 418 (1963) the Court held that “The patent purpose of notice requirements is to afford respondents an opportunity to promptly and intelligently investigate a claim and prepare a defense thereto, and to thereby protect governmental bodies from unfounded and unjust claims.” In the instant case the Attorney General did not receive notice. It is his responsibility to investigate and defend the State. By not receiving the required notice he was prevented from promptly investigating the incident.

Claimant’s argument that service of the notice on the clerk of the Court and the Attorney General is duplicative is equally unconvincing. In Munch v. State, supra, the Claimant asked the Court to deny the Respondent’s motion to dismiss on grounds that Claimant had notified at least two State agencies within thirty days of the accident. The argument failed and the case was dismissed. In Thomas v. State (1961), 24 Ill. Ct. Cl. 137 a report of the accident, which was filed with the Department of Conservation, was not regarded as a notice to the Attorney General and the clerk of the Court of Claims. The State of Illinois operates through many departments and employs thousands of people. It would be totally impractical for us to hold that service on one agency is sufficient to give notice to another. The fact that the notice was filed with the Clerk of the Court does not make the case at bar different from those cases cited above. The clerk’s office is separate and distinct from the Office of the Attorney General. The Clerk does not have any responsibility to inform the Attorney General that a person intends to file a suit with the Court. The statute requires the notice to be filed with both agencies and each relies on the plain reading of the statute.

It is hereby ordered that the motion of the Respondent be and hereby is granted and this case is dismissed with prejudice.


text:
    (No. 80-CC-1627
    Norval Landrey, Jean C. Landrey, Laura Mellor, and Michael Landrey, Claimants, v. The State of Illinois, Department of Children and Family Services of the State of Illinois and Dalia Juskys, Respondents.

      Order filed October 1, 1980.

    Dejong, Poltrock and Giampietro, for Claimants.
   Roe, C. J.

This cause coming on to be heard on Claimant’s motion for summary judgment, it appearing that due notice has been given, and the Court being fully advised in the premises;

By way of answer to the complaint filed in this action the Respondent states that the Department of Children and Family Services and Dalia Juskys are not proper parties to this proceeding. Inasmuch as the Court of Claims does not have jurisdiction over individuals in a claim such as this she is hereby stricken as a Respondent. Further, the Department of Children and Family Services and the State of Illinois, for all practical purposes, are one and the same. However, as a matter of form the Department of Children and Family Services, as a separate entity, should also be stricken as a named Respondent and hereby is.

This claim arose out of a settlement agreement reached by the parties in a case entitled Norval J. Landry, et al. v. Daniel Walker, et al., filed in the U.S. District Court for the Northern District of Illinois, No. 74-CC-1790. Respondent has stated in its answer that said agreement is a contract between Claimants and Respondent and should be made the basis for an award of $4,000.00 to the Claimants in full settlement of their claims against the Respondent.

From all the pleadings before us we find that there is no dispute as to any of the facts and Claimants are entitled to judgment as a matter of Law.

It is hereby ordered that Claimants be, and hereby are, awarded the sum of $4,000.00 (four thousand dollars and no cents) in full satisfaction of any and all claims the Claimants or their attorneys may have, or may arise as a result of the alleged occurrences which were the subject matter of their lawsuit in the U.S. District Court, cited above, including, but not limited to, any and all legal fees and costs of the suit involved in the above named lawsuit, in the settlement thereof, or in the procurement of this award.


text:
    (No. 80-CC-1735
    Kankakee Community Action Program, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed October 1, 1980.

    Joseph R. Yurgine, for Claimant.
   Roe, C. J.

This cause coming on to be heard on the motion of Respondent to dismiss, the motion of Claimant to strike and for summary judgment, the response thereto by Respondent and Respondent’s motion for summary judgment, due notice having been given, and the Court being fully advised in the premises;

In its motion to dismiss, Respondent states that the departmental report, which is prima facie evidence of the facts set forth therein, shows that the department did not contract for the services and that no services were performed. In support of this allegation copies of correspondence between the parties and contracts were attached.

Claimant responded to said motion by stating that the department report in fact contained a copy of a memorandum upon which Claimant relied by signing the renewal agreement and therefore the contract was extended.

From the documents before us we have tried to reconstruct the facts and sequence of events. Apparently the parties had a contract covering the period of fiscal year 1979 whereby the State agreed to pay Claimant $125.00 per month and Claimant agreed to make available to the State secretarial, telephone, copying, and filing services. These services were to be utilized, as would be necessary, by the VDIS project director to Claimant which stated in pertinent part:

“There exists the possibility, particularly where certain contractors are still negotiating for FY ’80 rates with the Department of Children and Family Services, that the Department of Corrections/Unified Delinquency Intervention Services FY ’80 contracts will not be fully executed (completely signed) by July 1, 1979.
Because of this, and to avoid a possible break in payment over this Fiscal Year transition, VDIS is asking contractors to sign the enclosed renewal which will extend the FY ’79 contract at the existing rate, until the FY ’80 contract is fully executed.
It is imperative that the enclosed renewal be signed and dated * * °, and returned to VDIS no later than May 25,1979.”

We find that the above language constitutes an offer to extend the FY ’79 contract. That offer was to remain open through May 25, 1979. It was upon this offer that Claimant alleges reliance. However, in order to accept the offer Claimant had to do so in the manner stated therein. As is clear from both the renewal and copy of the new contract, Claimant did not accept it until June 6, 1979. From the language in the offer stating the time of acceptance to be “imperative” we find the time of acceptance to have been of the essence. There having been no valid acceptance, no contract was created. Furthermore, Claimant should not have relied on the memorandum due to the fact that he did not make a timely acceptance of the offer.

Claimant also alleges that the FY ’79 contract provides for cancellation thereof by either party provided that 30 days written notice is given and that notice of cancellation was not given in accordance with the terms of the contract. We find that notice of cancellation was unnecessary, in view of the fact that there was no contract for FY ’80 and that, by its own terms, the FY ’79 contract expired at the end of that fiscal year, as Respondent correcdy points out in its response to Claimant’s motion to strike.

It is hereby ordered that this claim be, and hereby is, denied.