text:
    (No. 91-CC-0681
    Donchii Malone, Claimant, v. The State of Illinois, Respondent.

      Order filed September 30, 1994.

    Donchii Malone, pro se, for Claimant.
    Roland W. Burris, Attorney General (Lawrence C. Rippe, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, C.J.

The Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against the Respondent, State of Illinois, in the sum of $180,000 in compensation for personal injuries sustained by the Claimant while playing basketball at the Joliet Correctional Center. The Claimants complaint contends that on July 20, 1990, at 2:00 p.m., he was playing basketball in the west segregation yard. While playing basketball, the Claimant contends he slipped on small rocks and sand which had come from the brick wall to which the basketball goal was fastened, and fell against the fence gate. The Claimant contends his left arm landed under the fence gate, and his left wrist was broken. The Claimant contends that the fence gate and the playing area were unsafe.

The Claimant also contends that he was not promptly afforded medical care, but was delayed 10 to 15 minutes in the west segregation area before being taken to the medical center where he was required to wait for over an hour before receiving medical attention. The Claimant contends he was driven to an “outside hospital” where he was required to remain seated in the emergency room for 20 minutes before receiving medical attention. He also contends that after his injury was treated, he received insufficient pain medication. He alleges that he has lost the use of his left arm and left wrist, and is accordingly entitled to substantial damages.

At the hearing in this cause, the Claimant testified that he was first incarcerated in Joliet on September 2, 1988. The incident from which this claim arose occurred July 20, 1990, between 2:00 p.m. and 2:30 p.m. The Claimant was incarcerated in the segregation unit, and after lunch inmates were taken to the yard by correctional officer Lt. Breeding. The inmates, including the Claimant, were allowed to play basketball.

The Claimant stated that on the surface of the yard there was debris from a brick wall upon which the basketball goal is mounted. As the Claimant was playing he fell and he broke his left wrist. He stated that the reason his wrist was broken is that “the gate pushed in,” and his hand “went up under the gate.” The Claimant testified that the gate was not secure, and that his hand landed “up under the pole, the bottom pole of the gate,” and that is the circumstance that caused his wrist to break. The Claimant stated that the gate in question was a standard seven-foot wire gate, the frame of which was made of some type of metal.

The Claimant testified that the game he was playing was a game that involved running and jumping and some physical contact between the people who were participating. In response to questions at the hearing, the Claimant testified that the gate in question was there for security reasons to keep inmates from coming in or going out as they pleased. He also stated that the gate was not designed to provide a landing area for a person who was involved in a vigorous game who might lose his balance or fall to the ground.

On the occasion in question, the Claimant contends that his fall was caused by debris which had fallen from the brick wall onto the surface where the game was being played. The Claimant testified that the wall was not like a flat surface, but consisted of “big old chunks of bricks, that deteriorate onto the surface of the playing area.” The Claimant testified that the debris “was all over back there.” The Claimant testified that “we sweeps, you know, it out of the way. Usually, we sweeps it out of the way; but it wasn’t like it usually be. It wasn’t like thick. It was like just from the wall. It is an old wall that was built in the 1800s. So, I guess a little gravel falls. There was like a sand-like surface, rocks here and there. There was like a sand, like a surface that came off the wall.” The biggest debris was maybe a half an inch, and the smallest debris was not as big as the top of a pen. It was like sand on the surface with rocks here and there, according to the Claimant.

The Claimant had played basketball at this location many times. He testified that there was nothing about the condition of the playing surface that he was unfamiliar with. He testified he knew there was loose gravel that had fallen off the wall; and that from time to time the area had been swept up. On the occasion in question, the Claimant testified that the surface material from the wall was not noticeable until he fell. The Claimant stated he never fell before when playing basketball, but that he had seen others fall down many times.

The Claimant testified that when he fell, his arm pushed against the gate; and instead of the gate being secure, the gate pushed out and his arm ended up against the bottom pole. He testified that there was 2Vz inches of space under the bottom pole; and that if the space had not been present the accident would not have happened because his arm would not have been able to go up under the pole — it would have landed on the pole. The Claimant stated that a person could have looked at the location and seen that there was a 21A-inch gap beneath the bottom support member of the gate.

After the accident, the Claimant advised correctional officers that he thought his wrist was broken. He testified he waited five minutes before he was taken to the prison hospital. When he arrived at the hospital, he was advised that there was nothing that could be done for him at that location, and that he would have to go to an outside hospital. He testified that he waited at the prison hospital for an hour and a half or two hours while paperwork was completed. He was given ice to put on his wrist. Eventually, the Claimant was taken to the outside hospital and received a shot. When his wrist was examined at the outside hospital, he was advised that a specialist would have to be called. After a delay of about two hours, the Claimant was seen by Dr. Duffy who is a bone specialist. The Claimant was advised by Dr. Duffy that his wrist was broken badly. Dr. Duffy applied an arm cast for the Claimant; and replaced the arm cast later with another cast. He was in a cast for eight weeks.

The Claimant described the basis of his complaints concerning the medical care he received. The Claimant stated that the people at the medical facility at the prison did not act like there was an emergency. He stated that he received an insufficient amount of Tylenol 3. He stated that the correctional officers acted like they didn’t care. The Claimant stated that he went through pain for three days because of the negligence of correctional officers.

At the time of the hearing, the Claimant testified that his wrist was not as painful, but that he could not turn his palm all the way up. He stated that he can’t use his wrist to do a lot of things that he wants to do with his wrist. Observation by the Commissioner of the Claimant’s use of his injured arm and wrist while handling his papers and testifying indicated that he was successfully able to use the left hand. The Claimant gestured to the Commissioner to demonstrate the limitations of his use of the left hand; and demonstrated that he could not turn his left hand palm-side up, but could only turn the hand approximately half of the distance needed to turn it palm-side up. At the time of hearing, the Claimant stated that he was supposed to be receiving therapy but had not been called to continue the therapy.

The Claimant testified that in his weightlifting activities, he could perform a bench press., but could not perform a “curl.” In performing a bench press, the Claimant stated that he would lay on his back and push a barbell straight up and down to and from his chest. The Claimant contended he could lift about 100 pounds in repetitions of 5 sets of 10 lifts. He testified there were some exercises that have to be done “under hand” that he cannot do. He also testified that he engages in boxing, and that the injury has not really affected his ability to box.

The Claimant testified that the correctional officer, present at the time he was injured, made the statement that he had already reported that the gate in question should have been repaired earlier, because if it had not been repaired, “somebody was going to hurt himself.”

On cross-examination, the Claimant stated that the wrist in question had been broken first when he was about 13 or 14 years old, and that the original broken wrist healed without loss of use. The Claimant is right-handed. The Claimant testified that in his job as a cell-house maintenance worker, he has no problems sweeping floors, but does have a problem mopping because of the injury to his left wrist.

Correctional officer Lt. Robert Breeding was called as a witness for the Respondent. Lt. Breeding testified that at the time of the accident, the Claimant was on the first of three “segregation yards.” The yard is 20 feet by 24 feet; and the basketball rim is attached to the main prison wall. The area is fenced by a galvanized steel fence topped with razor blade wire. The surface is cement, and there is one gate to go in and out. The gate is padlocked. When the gate is locked, the gate has no movement in it. Lt. Breeding testified that the surface of the playing area is cleaned and brushed every day during good weather in the summer. Lt. Breeding noticed nothing unusual about the surface of the playing area on the date of the Claimants injury.

Lt. Breedings attention to the Claimants injury was called by a tower officer. Lt. Breeding then noticed that the Claimant was injured and in pain. Lt. Breeding called for keys so that the Claimant could be taken off the yard to obtain medical attention. The process took 5 to 10 minutes. The trip to the medical unit took two or three minutes. After arriving at the medical unit, the medical staff attended to the Claimant; and it was determined that the Claimant would have to go to an outside hospital for medical attention. After having first being checked to see if the Claimant’s condition was life-threatening, it was 20 or 25 minutes until the Claimant received additional attention.

Lt. Breeding produced photographs taken of the basketball area on April 24, 1991, in contemplation of the hearing in the Claimant’s case. The Respondents photographic exhibits 1 through 12 were marked and identified, and entered into evidence. Lt. Breeding testified that the space beneath the fence in the gate is one inch, and that there is not sufficient room to put a hand under it.

Lt. Breeding denied making any statement to the Claimant or other inmates concerning the condition of the fence or gate; but admitted that he had made the observation that someone was going to get hurt because the type of basketball that was being played was wild.

Lt. Breeding testified that the gate in the fence in the area in which the Claimant was injured on the date in question was in good repair, and locked.

On cross-examination by the Claimant, Lt. Breeding testified that he knew for a fact that the surface of the playing area had not been swept on the day in question, because when Lt. Breeding took the Claimant and other inmates to the basketball court, Lt. Breeding did not see the gravel or debris on the ground which needed sweeping. However, Lt. Breeding stated under cross-examination that the debris could have been there. Lt. Breeding unequivocally denied making any statement to the effect that someone needed to fix the gate.

The Respondent offered no other evidence. Neither party filed a brief.

This Court has previously held that if the State provides recreational equipment to inmates, that equipment must be in safe condition. In order for an inmate to recover against the Respondent for injuries in the use of recreational equipment, the Claimant must show that the State somehow breached that duty. (Terry v. State (1991), 44 Ill. Ct. Cl. 211, 213.) In Rosario v. State (1991), 43 Ill. Ct. Cl. 282, the claimant sought damages for an injury sustained by the claimant during a basketball game. The claimant contended that his foot went through the wooden basketball floor to a depth of four or five inches, causing him to injure his right ankle and break a bone in his upper-right instep. After recognizing that the State has a duty to inmates of penal institutions to maintain reasonably safe conditions, this Court observed as follows:

° ° the existence of a defect is not in itself negligence on the part of the State. (Palmar v. State (1964), 25 Ill. Ct. Cl. 1.) The State must be shown to have had actual or constructive knowledge of the defect.” Rosario at 283.

In the Rosario case, the Claimants injury may have been caused by weak wooden flooring, but this Court indicated that in the absence of direct evidence offered by the Claimant as to the nature of the defect which proximately caused his injury, the Claimant could not prove his claim.

In the present claim, the evidence is in conflict. The Claimants theory of liability is that a lower portion of the gate to the basketball court was not secure, and that when the Claimant fell during the basketball game, his left hand and arm were permitted, due to the insecurity of the lower portion of the gate, to go under the gate and against a supporting pole, thereby causing the break to the Claimants left wrist. Additionally, the Claimant contends that there was sand or debris which was on the playing surface which was not noticeable, until after the Claimants fall. Officer Breeding testified emphatically that there were no loose connections on the gate, and that the fence and gate around the basketball court were in good repair. Pictures taken of the court where correctional officer Lt. Breeding testified that injury took place seemed to show a gate and fence with no obvious defects. The Claimant, on the other hand, contends that the pictures produced by officer Breeding and admitted into evidence are not of the court where he was injured or the fences and gates in question.

Even if the Court were to find that the Claimants testimony regarding the condition of the lower portion of the gate was more credible than the testimony of correctional officer Lt. Breeding, there was no evidence that the condition of the gate and the playing surface was a dangerous condition about which the Respondent had knowledge, or should have had knowledge. Furthermore, if it is assumed that the lower portion of the gate surrounding the basketball court was not securely fastened, it is doubtful that knowledge of this condition could be said to be knowledge on the part of the Respondent that a dangerous condition existed which, if not corrected, could result in injury to those inmates using the basketball court for recreational purposes. The Claimants argument is that if a recreational basketball court has boundaries consisting of fences and gates, then the construction and repair of the fences and gates should be such that if a participant in a basketball game falls against the fences or gates, such fences or gates should be so constructed and maintained as to prevent the occurrence of injury to a person falling during a basketball game. It is clear from the evidence that the fences and gates were for security purposes and were not designed, maintained or repaired so as to furnish a cushion against pressure which might be exerted by the impact of a fall by an inmate using the basketball court.

Therefore, we find that, even given the Claimants statement of the condition of the gate, there was no obvious defect from which the State could reasonably anticipate an injury to result therefrom. Additionally, the Respondent maintained the court daily; and there was no obvious defect on the surface of the court. Lt. Breeding noticed no debris; and the Claimant noticed nothing until he fell, when he noticed fine particles of sand or rock.

As to the portion of the Claimants claim relating to the medical care provided to the Claimant, it is the finding of this Court that the claim be denied. Judge Burke in writing the opinion of this Court in Pink v. State (1991), 44 Ill. Ct. Cl. 295, opined that in cases arising from complaints of medical care, the Claimant must offer expert testimony or other evidence to prove the allegations of the complaint. Where the allegations of a Claimant are essentially allegations of medical malpractice, a Claimant must establish a breach of duty through expert testimony; and establish that the Respondent deviated from the required standard of care. In the case at bar, the Claimant has not shown the standard of care applicable, and has failed to show any obvious deviation from steps to provide the Claimant with reasonable medical care. Accordingly, the Claimant has failed to meet his burden of proof.

It is therefore ordered that this claim is denied.


source: Caselaw Access Project

author: Frederick, J.

license: Public Domain

text:
    (No. 91-CC-1942
    Charles Robinson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 6, 1994.

    Charles Robinson, pro se, for Claimant.
    Roland W. Burris, Attorney General (Marina Popovic, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This is a tort claim filed by inmate Charles Robinson on January 14, 1991. Claimant alleges he was injured when guards used unnecessary force to put handcuffs on Claimant, squeezed the handcuffs too tightly, viciously twisted Claimants chain, and further that he was then refused medical attention.

Claimant, Charles Robinson, was an inmate at the Joliet correctional center. On December 12, 1990, a shakedown was performed on Claimant’s cell. Correctional officers Jones and Briggs indicated they found alcohol and other contraband in Claimant’s cell. Claimant claims that he was injured by the officers and then denied medical attention.

Claimant was taken to the hospital on the morning of December 13, 1990. Claimant seeks $12,500 in damages.

At the time of trial, Claimant had been in prison for 23 years. Claimant testified that he believed that a lieutenant did not like him because he had two disciplinary tickets dismissed. Claimant was in protective custody cell 130. According to Claimant, the lieutenant came to his cell and said he had orders to shake Claimant’s cell down. Claimant asserted that this lieutenant did not like him and had threatened him. Claimant had gone to the warden to try to “get this man off my back.” On December 13, 1990, Claimant had a lot of fruit in his cell. He was going to make wine but had not done so yet. The guards, during the shakedown, took his fruit and an ashtray. The guards then tore up his cell. During this time, Claimant was handcuffed. Claimant testified the guards cursed him. They put him back into his cell. Claimant complained the handcuffs were too tight. He put his hands through the bars. The officer vilified Claimant. When the officer took the handcuffs off, Claimant’s hand was cut and his arm was swollen. Claimant testified he was in great pain. Claimant further testified the guard refused to take him to the hospital. The lieutenant threatened “to get” Claimant. Claimant testified that even though he was hurt and was cursed at, he did not attack the officers.

Claimant filed a grievance but the grievance was denied. Claimant testified that all of the disciplinary tickets issued by Lieutenant Van against Claimant were dismissed by the warden. This is unusual in the prison system and Claimant believes that is why the lieutenant hurt him.

Claimant did receive a ticket for the contraband taken from his cell on December 12, 1990. Claimant was handcuffed prior to the shakedown and remained handcuffed throughout the proceeding. Claimant testified he was screaming during the whole shakedown. Claimant received only a mild penalty for the contraband in his cell.

Claimant was taken to the hospital and given medical treatment when the next shift came on the next day. The shakedown was done at 7:30 p.m. Claimant went to the hospital shortly after 12:00 when they did the prisoner count. Claimant had no broken bones. He did have pain for about a week. His hand was swollen and he could not use it. He could only work with his left hand. Apparently, Claimant suffered no permanent injury. He does claim some shaking occurs in his arm when he writes. However, Claimant had arthritis and continues to have arthritis not related to the incident. Claimant seeks damages solely for pain and suffering.

The medical records indicate Claimant had some swelling and pain in his right hand over the wrist. The pain and swelling appear to have resolved on or about December 19,1990.

Inmate Brian Dugan testified for the Claimant. Mr. Dugan was in cell 128. He observed the guards shake down Claimants cell by using a hand-held mirror. He heard Claimant say that the handcuffs were too tight. Claimants voice was very loud. He heard Lieutenant Van use the word “nigger.” He saw Lieutenant Van reach in the cell and he heard Claimant scream. He then saw Lieutenant Van with his mace out although the lieutenant never used the mace. Claimant was handcuffed with his hands behind his back and with his hands coming out the cell door in the tray slot. Mr. Dugan was 15 to 20 feet away. He was using a pocket mirror. He could not see into Claimants cell. He could see the lieutenant and the other officer in front of the cell and he could see what those two did. He did see them take things from Claimants cell and he heard Claimant “got busted for hootch.” They took things from Claimants cell that Claimant purchased in the jail. They took some round decorative balls made out of tissue paper from Claimants cell and Claimant was yelling about that. Claimant appeared upset because they were taking his property. However, it appeared Claimant followed the officers’ orders and Claimant did not threaten anyone. He heard Claimant ask to go to the hospital and Lieutenant Van refused to take him down to the hospital. Witness Dugan saw Claimant when he returned from the hospital and saw that Claimant’s wrist was swollen.

Lieutenant Jerome Van testified that during a shakedown, it is standard procedure to handcuff each prisoner whose cell is to be searched. The inmate is handcuffed to the bar by the cell where he can oversee the shakedown that is taking place. He has received training in properly performing shakedowns at the academy in Springfield. Lieutenant Van supervised the shakedown of Claimants cell. He was aware of Claimant prior to the shakedown. This particular shakedown was a routine shakedown ordered by the superintendent. He testified they approached Claimants cell and announced the shakedown. The Claimant became very belligerent. The Claimant was cuffed inside the cell through the opening, the cell door was opened, the Claimant came out, the Claimant was pat searched, and then cuffed to the bars by the cell so he could observe the shakedown. They then proceeded to shake down the cell. A considerable amount of homemade hootch and other contraband was found. After the search, Claimant was placed back in the cell. Claimant became belligerent again and told the officers he was going to mess up the lieutenant as soon as the handcuffs were off. Claimant went to the back of the cell and refused to come to the front of the cell to have his cuffs removed. Claimant continued to threaten .the officers. When Claimant did come to the front of the cell, the lieutenant ordered the cuffs removed and he stood back with his mace ready because Claimant kept saying he was going to hit somebody once the cuffs were removed. The mace was never used. Lieutenant Van testified he never heard Claimant complain about the cuffs being too tight, and after the shakedown he did not see anything out of the ordinary regarding Claimants wrists. He testified Claimant did not request medical attention. Lieutenant Van also testified he heard a rumor that Claimant was going to set him up. The lieutenant only pulled the mace after Claimant was back in his cell with the door locked.

Corrections officer Bruce Briggs testified that he was also present at the shakedown of Claimants cell. He testified that Claimant was very vocal, swearing, yelling and cussing. Claimant was slow about coming to the cell door to have his cuffs removed after the shakedown. He did not recall any problems after the shakedown. Officer Briggs took the handcuffs off. He did not hear Claimant claim the cuffs were too tight, that he wanted them loosened, or that his wrists were hurting. Officer Briggs testified Claimant swore at the officers and threatened them. However, he did admit it was procedure for an inmate to go to segregation for doing such things. Claimant was not sent to segregation. Officer Briggs also admitted Claimant did say Lieutenant Van was out to get him while Claimant was in his cell.

The State of Illinois owes a duty to prison inmates to provide them with a safe place to live. (Holt v. State (1990), 43 Ill. Ct. Cl. 195.) The State also owes prison inmates the duty to provide them reasonable medical care. (Russell v. State (1990), 43 Ill. Ct. Cl. 295.) The Court will only impose liability upon the State for the criminal acts of third parties where the States agent participated in the alleged act or where the States agent anticipated or should have anticipated the criminal attack. (Daugherty v. State (1991), 43 Ill. Ct. Cl. 317.) This Court has also held that correctional officers may use such force as is reasonably necessary to restrain an inmate to protect all parties from injury. The Claimant has the burden of proving the States agents were negligent or used excessive force to prevail. Simmons v. State (1991), 44 Ill. Ct. Cl. 304.

To establish a claim for failure to provide adequate medical care, Claimant must establish through expert testimony that the State breached its duty to him. As no expert testimony was presented and because Claimants alleged denial of medical treatment was only a few hours with no attendant permanent injuries, this portion of Claimants claim must fail.

Whether the States agents used excessive force thereby injuring Claimants wrist is a factual inquiry involving the credibility of the witnesses. We have carefully reviewed the testimony presented to the Commissioner. The testimony is completely contradictory. Claimant, bolstered by his witness and the medical records, shows that Claimant was injured in a manner which likely came from handcuffs being applied too tightly through excessive force. The guards say nothing happened. We find that the testimony of Claimant and his witness has the ring of tmth thereto. Claimant was not seriously injured and has no permanency. It is significant that the lieutenant only pulled out his mace when Claimant was back in his cell, that officer Briggs admitted Claimant said Van was out to get him, that Claimant did have a documented injury, that Claimant was not sent to segregation for the acts the Respondents witnesses claimed he did, and that Claimant’s witness testified and was not impeached in any way.

Based on the foregoing, we award Claimant $750 in full satisfaction of his claim.


author: JANN, J.

text:
    (No. 91-CC-3002
    State Farm Insurance Co., a/s/o Barbara Faber, Claimant, v. The State of Illinois, Respondent.

      Order filed October 4, 1994.

    Garretson & Santora, Ltd., for Claimant.
    Roland W. Burris, Attorney General (Phillip Robertson, Assistant Attorney General, of counsel), for Respondent.
   ORDER

JANN, J.

This cause coming to be heard on the motion of respondent to dismiss the claim herein, due notice having been given to all parties, and the Court being fully advised in the premises, the Court finds that:

(1) This action stems from an automobile accident occurring on June 20, 1990, involving Claimant Barbara Faber and Juan O. Morales, an Illinois State trooper.

(2) Trooper Morales was off duty at the time of the accident, but was driving a State-owned squad car.

(3) Trooper Morales was acting outside the scope of his employment at the time of the accident.

(4) Trooper Morales did not get official authorization to use his squad car off duty.

(5) Trooper Morales, when acting within the scope of his employment, is an agent of the State of Illinois (the principal).

(6) Under the doctrine of respondeat superior, an employer is responsible for the actions of his employees only when those actions are within the scope of his employment.

(7) If a State employee commits a tortious act while on a frolic of his own, and for a purpose unconnected with the work he was hired to perform, the Claimant will be denied recovery. Where the evidence shows that the driver of a State vehicle had no authority to use it, and was not on government business, he was not an agent of the State of Illinois, and a claim based on the negligence of the driver will be denied.

As the Respondent has submitted evidence which clearly shows Trooper Morales was acting outside the scope of his employment when the accident occurred, his employer, the State of Illinois, is not liable for the damages sustained by Claimant.

It is therefore ordered that the Respondents motion to dismiss is granted, and that the claim herein is dismissed with prejudice.


author: Mitchell, J.

text:
    (No. 91-CC-3379
    Janet Holman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 6, 1995.

    Routman & Lawley, Ltd. (Robert Lawley, of counsel), for Claimant.
    Jim Ryan, Attorney General (Deborah Rose, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

The Claimant filed her complaint in the Court of Claims on May 20, 1991, seeking $30,000 in damages from the State of Illinois. She claims these damages for her pain, suffering, permanent injury, lost wages and medical bills which she incurred as a result of the State s breach of duty to maintain reasonably safe conditions at the Illinois State Museum Halloween event and display.

A trial was held on November 4, 1993. The evidence consists of a report of the trial proceedings, a photograph of the room where the injury occurred, the visitors accident report, evidentiary stipulations as to Claimants lost wages and medical bills, proposed testimony of treating physician Dr. Clifford Lynch, and an advertisement in the Halloween event at the Illinois State Museum. Both the Claimant and Respondent have filed briefs in this case.

Facts

The Claimant was attending a Halloween party at the Illinois State Museum with her grandson on October 26, 1990. The party had been advertised locally in the newspaper and through flier advertisements. The advertisement requested that children be accompanied by an adult, to come in costume and to bring a flashlight. The museum had set up different display rooms to hand out candy to the children and give the appearance of a “haunted house.” The Claimant entered the Discovery Room with her grandson.

Under normal conditions the room is arranged with tables and low-seated benches for children to use in the museums regular displays. These tables and benches had been moved into the upper-right-hand corner of the Discovery Room next to the wall. In the middle of the room, there was a “slime pot” display where the children received the Halloween treat. The overhead fluorescent lights were turned off; however, the track lights on the left side of the room were turned on and dim. The track lights on the right side of the room near the tables and benches were not lit. The room was dark enough that the childrens flashlights could be clearly seen. There were approximately 40-50 people in the room at the time of the accident.

The Claimant entered the room with her grandson. They proceeded in the direction of the pot in the middle of the room to see what was going in the pot. Her grandson then ran around the pot to the right corner toward the wall. As the Claimant followed,, she tripped over the comer of a bench stored in that section of the room. She fell, making contact with the left comer of the bench. She experienced great pain in her upper left arm. The staff helped her to her feet. Her father was called and she went to the emergency room. Claimant has testified that she did not see the low-seating bench because it was so dimly lit in the Discovery Room.

Elaine Beckman is the associate curator of education for the Illinois State Museum. She was in charge of the museum Halloween program. She testified that the table and benches had been moved toward the right side of the room. She stated that the room was dimly lit and that only one or two track lights were on at the time. The bench the Claimant tripped over was approximately five feet wide and a foot and a half tall. She did not believe that the lights near the right side of the room were on. Ms. Beckman prepared the accident report submitted into evidence.

The Claimant was treated at the emergency room, where she was diagnosed with a fracture of the proximal humeral head of her left arm as a result of the fall. Claimant returned home, but was unable to work for 12 to 13 weeks. She suffered lost wages of $5,920 and incurred medical bills totalling $4,411.37. Claimant sustained permanent damage to the articular surface of the elbow joint as a result of the fracture, in the form of a limited range of motion of her arm. She regained 75 to 80% of her normal range of motion by the time she left Dr. Cliffords care. She has testified that she has a constant ache, and her injury interferes with lifting heavy objects and working overhead. She does not require any surgery.

Law

The Claimant presents a tort theory of recovery. She claims the State is responsible for her injuries because it breached its duty of reasonable care by inviting persons to the Halloween display where lighting was dim and low-lying furniture was not properly illuminated or stored in the display room.

The Court has recognized that the State is not the insurer of safety of invitees and that it must only exercise reasonable care for their safety. The Claimant has the burden of proving by a preponderance of the evidence that the State was negligent. (Talbor v. State (1983), 35 Ill. Ct. Cl. 885, and Fausch v. University of Illinois (1989), 42 Ill. Ct. Cl. 175, 180.) In order for the Claimant to prevail on her claim, she must show that the premises were in a defective condition, that the defective condition was created by the State, or that the defective condition existed for such a period of time as to allow the State to know of the defect and correct it, and that the defect caused the injury. Rosario v. State (1991), 43 Ill. Ct. Cl. 282.

As Elaine Beckman testified, the State was fully aware of the positioning of the tables and benches in the right hand comer of the room. The State was fully aware of the dim lighting in the room, and that no lighting was highlighting the position of the tables and benches. In fact, the State was responsible for placing the furniture in the corner and for the lighting conditions in the Discovery Room during the Halloween display. This poor lighting and positioning of the furniture was a defective condition in the room. The visitors to the museum were not aware of the location of the furniture and although they were requested to bring flashlights, this does not obviate the State s duty of reasonable care to the visitors. The State had actual notice of the defect in the room as it had created the defect.

The Respondent has argued that there is no obligation to protect an invitee against dangers which are known or which are so obvious or apparent that the invitee may reasonably be expected to discover them. (Rosario v. State (1991), 43 Ill. Ct. Cl. 282.) The evidence clearly shows that the Claimant did not know that the furniture was stored in the corner of the room. She could not have known because the lighting was so dim that she could not see the bench until she tripped over it. The dangerous placement of the furniture was neither obvious nor apparent, therefore the Claimant cannot be reasonably expected to discover it.

The Claimant demonstrated that she did not contribute to the negligence in the accident. She was merely following her grandson to the corner of the room. She comported herself reasonably and appropriately under the conditions of the room. The museum had invited children to their display to be accompanied by an adult. The Claimant was following and supervising her grandson when the accident occurred. Illinois has adopted a modified comparative negligence jurisdiction. Section 2 — 1116 of the Code of Civil Procedure (735 ILCS 5/2 — 1116) provides that if plaintiff is more than 50% responsible for her injuries, recovery is barred. The evidence does not support the contention that the Claimant is more than 50% responsible for her injuries.

The Claimant has met her burden of proof. She has shown by a preponderance of the evidence that the State acted negligently in placing furnishings in a dimly-lit room where visitors could not know of their location. The State did not exercise its duty of reasonable care. For the foregoing reasons, the Claimant is granted an award of $20,000.


text:
    (No. 91-CC-3478
    Gary D. Kirby, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 4, 1994.

    Harris, Lambert, Howerton & Dorris (Eric W. Kirkpatrick, of counsel) for Claimant.
    Roland W. Burris, Attorney General (Alix E. Armstead, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Gary D. Kirby, seeks damages against the Respondent, State of Illinois, for lost wages, vacation and sick days, health insurance premiums, loss of driving privileges, attorneys fees, costs, and interest on back wages. Claimant was an employee of the Illinois Department of Transportation. He started in July of 1984. Claimant was employed as a maintenance laborer working on the highways in Johnson County. Part of his duties required him to drive State trucks for hauling and picking up supplies.

On January 17, 1990, while driving a State truck, Claimant was involved in a serious motor vehicle accident, resulting in the deaths of two people in another vehicle. Claimant was charged with failure to yield by way of a traffic ticket issued by an Illinois State trooper.

Claimant went to court on his traffic ticket without taking a lawyer with him. Claimant testified that he thought he was going to be represented and had been led to believe that he was going to be represented “mostly” by Bill Corse. Claimant identified Bill Corse as a Department of Transportation person who takes care of accidents “and stuff over at Carbondale.” Claimant had talked to Bill Corse several times before his trial. These conversations took place at the Vienna Yards where Claimant reports to work. Claimant testified that he discussed the charges against him on the ticket with Corse and discussed the fact that they would be going to court. Claimant testified that he asked Bill Corse if Corse thought he needed an attorney. Claimant testified that the best he could recall and believed was that the words of Bill Corse were, “I can’t see no reason, Gary, of why you would need an attorney.” Claimant testified that he relied upon Bill Corse.

When Claimant attended traffic court, he was accompanied by Bill Corse, Bill Owens and Orval Hague. Claimant identified Bob Owens as a technician at the yards and Orval Hague as second in command over there (Department of Transportation at Carbondale), but said “I ain’t for sure.” Claimant testified that when they arrived at the courtroom and just before they went into the courtroom, Bill Corse told the Claimant that if the judge asked the Claimant to testify, to tell the judge that he had been advised by counsel not to testify. Claimant did not testify at the trial on the traffic ticket, although the judge asked him if he wanted to. He informed the judge that he had been informed by counsel not to testify. An eyewitness to the accident testified, and a reconstruction witness named Roger Walker testified. Claimant was convicted of failure to yield and paid a fine on April 18,1990.

After the conviction, Claimant had a discussion with Bill Corse and Dennis Mathis, who was identified by Claimant as his supervisor. Claimant testified that Bill Corse “brought a law book down” and read things to Claimant. Claimant had advised Bill Corse that Claimant was thinking about trying to get a new trial and Bill Corse advised him that he could be fined “a big amount of money.” Claimant told Bill Corse that if Claimant lost his drivers license, “they’re going to fire me.” Corse purportedly told Claimant that he would not be fired and would not lose a day’s work. Claimant emphasized that Corse told him “You won’t lose a day’s work. We’ll put you flagging. We’ll put you mowing right-of-ways and stuff that you won’t have to drive.” Claimant testified he relied on what Corse told him. No appeal of the conviction or request for new trial was filed.

Claimant did not know what Bill Corse’s duties with the Department of Transportation were in regard to investigating accidents or what his actual job title or job description was. On the date of the accident, the chain of command for the Claimant was as follows: his immediate supervisor or “lead” worker was Dennis Mathis; Bob Owens was the technician supervising Mathis; and Orval Hague supervised Bob Owens. Don Crammer was over Hague, and the district engineer, Mr. Jennings, was the head of district 9. Claimant guessed that Bill Corse was not in that chain of command in any way. Claimant had had prior dealings with Bill Corse when Corse taught a defensive driver’s course, and Claimant had seen Corse down at the Vienna Yards two or three times. Claimant did not know Corse’s professional background but thought that Corse could represent Claimant in court. Claimant thought Corse was an attorney, although Corse never told Claimant he was an attorney.

Claimant’s driver’s license was then suspended by the Secretary of State effective June 26, 1990. When Claimant received the notice, Claimant told his superiors that he would be losing his license on June 26, 1990. Two or three days before the suspension date, Claimant testified he was approached by Bob Owens who handed him a piece of paper and told Claimant, “You’re going to have to take 90 days leave of absence,” and wanted the Claimant to sign for the leave of absence. Claimant signed the paper. Claimant testified that he figured that if he had not signed the paper, he would be fired. The 90-day suspension was without pay.

Claimant filed for a hearing on his license suspension through the Office of the Secretary of State, assisted by Bill Corse and Bob Owens who took Claimant to the Marion, Illinois, driver’s license facility. Prior to the hearing, Claimant hired Gordon Lambert as his attorney, who attended the hearing before the Secretary of State’s representative in Mt. Vernon, along with Claimant.

Claimant and his attorney appeared before hearing officer Fred Knoche and participated in the hearing at which Claimant testified along with several others.

The findings and recommendations of the hearing officer were sent to the Claimant. The hearing officer’s recommendations were predicated in major part upon proof that Claimant’s vision was obstructed at the intersection where the accident occurred. The hearing officer recommended recision of the order of suspension of Claimant’s driver’s license. Later, in an order dated September 12, 1990, the Secretary of State adopted the findings of the hearing officer, but did not adopt the recommendations of the hearing officer. However, the Secretary of State granted Claimant’s petition for the issuance of an employment-restricted driving permit permitting Claimant to operate a vehicle at work from 7:00 a.m. until the conclusion of his employment in the evening.

An appeal of the order of the Secretary of State was perfected by Claimant to the circuit court of Sangamon County. After Claimant and his attorneys appeared before the Sangamon County circuit court judge, an order was entered December 20, 1990, reversing the order of the Secretary of State.

The State of Illinois took an appeal from the decision of the Sangamon County circuit court judge to the appellate court of Illinois for the fourth judicial district and sought an extension of time within which to file the State’s brief. The State ultimately moved to voluntarily dismiss the appeal. An order of dismissal was entered on May 10, 1991.

Claimant’s driver’s license was suspended for nine months. The suspension was to expire March 26, 1991. After the suspension, Claimant received his driver’s license back. Claimant did not drive at all from June 26, 1990, through the latter part of September 1990 and during that period of time was not allowed to work for the Department of Transportation. Claimant received his work permit on September 24, 1990, and returned to work the following Monday to the same job where he has worked ever' since. During the suspension, Claimant would have earned $1,279 gross every two weeks through July 1, 1990. Thereafter, a raise went into effect which would have raised Claimant’s gross pay to $1,339 every two weeks. Claimant believes that during the summer he would have received overtime, but was not able to testify to the amount of overtime he would have received.

Claimant testified he lost one day short of three month’s pay with all but four or five days being at a higher rate. Claimant lost 3.7 vacation days and 3 sick days. Claimant was required to pay for insurance normally covered by the State totaling $1,162.62 from which $493.86 would be deducted as premiums from his paychecks had he received them.

Claimant testified he sustained a hardship during the time he was not allowed to drive and necessarily incurred attorneys fees and expenses. Claimants evidence established the following monetary losses:

(a) Claimant’s gross lost wages totaled $8,607.86;
(b) Claimant lost 6.8 paid sick and vacation days which should be valued at a gross loss of employment benefits at the rate of $133.97 per day for a total of $911;
(c) Claimant was required to pay $443.38 for family insurance benefits which would otherwise have been paid by Respondent but for Claimant’s absence;
(d) Claimant suffered emotional trauma and inconvenience by not being able to drive during the suspension of his license;
(e) Claimant incurred attorney fees and expenses in the sum of $3,625 as fees and $142.75 as costs for a total of $3,767.75.

Claimant further testified that after the accident, he was made party to a civil action for money damages. He was served with papers in the civil action before he returned to work for the Department of Transportation during the time that he was off work. Claimant requested representation be provided to him through the State of Illinois and he was represented by an assistant Attorney General. The case went to trial and a verdict was rendered against the Claimant.

A week or two after Claimant was convicted on the traffic ticket, he hired Gordon Lambert as his attorney. Claimant incurred the responsibility to pay attorney fees in the sum of $3,625 and out-of-pocket costs in the amount of $142.75.

Claimant advances two theories of recovery. First, he argues the law of the case, and second, he argues a breach of employment contract. Claimant argues that the ruling of the Sangamon County circuit court is the law of the case. He argues that the circuit court has ruled that the Claimant’s driver’s license should never have been suspended and that the suspension was unjustifiable, causing Claimant to lose wages and benefits because he was not allowed to work without a driver’s license. Implicit in Claimant’s argument are the propositions that Respondent advised Claimant not to seek an attorney to defend the traffic ticket in the first instance and that Respondent lulled Claimant into a false sense of security by representing to Claimant that he would never lose a day’s work if he lost his driver’s license.

In response to Claimant’s first theory of recovery, Respondent suggests that Claimant knew his job was conditioned upon maintaining a valid driver’s license and Respondent acted in accordance with Claimant's best interest in suggesting a leave of absence from his employment rather than other more severe options, such as loss of employment. Respondent also argues that it could not foresee that the suspension of Claimant’s driver’s license would be overturned by the circuit court of Sangamon County and believed it acted in the best interest of the Claimant. Finally, Claimant was not forced to request a leave of absence but simply and correctly followed the advice of fellow employees. Respondent’s brief is as bereft of the citation of authority on this theoiy of recoveiy as is the brief of the Claimant.

Claimant was charged and convicted of a traffic offense in the Williamson County circuit court. That conviction has not been appealed or overturned. There is no evidence before the Court to suggest the conviction was not proper. Pursuant to State law and the authority vested in the Secretary of State pursuant to State law, tire driving privileges of the Claimant were suspended. (625 ILCS 5/6 — 206.) Also, pursuant to State law, that suspension was reviewed both administratively and by the Sangamon County circuit court and was rescinded. The January 10, 1991, circuit court order reversing the Secretary of States position does not state that the suspension was wrongful or that it never should have been entered. The decision indicates the hearing officers findings were supported by the evidence and the law. The hearing officer found the evidence presented sufficient grounds to rescind the suspension. The hearing officer made no finding that the suspension was wrongful or never should have been entered. Claimant’s license was suspended on June 26, 1990. The hearing officer’s decision was mailed September 12, 1990. The Secretary of State’s order granting a work permit was entered September 12, 1990. The Department of Transportation, as the employer of Claimant, was not a party to the proceedings in the Williamson County circuit court, nor was the Department of Transportation, as an employer of Claimant, a party to the proceedings before the Secretary of State or the Sangamon County circuit court. Claimant cannot seek a recovery against Respondent under a theory predicated upon the advice given to the Claimant by persons whom Claimant perceived to be his superiors in the Department of Transportation, nor can the Claimant properly assert Respondent’s liability on the basis that an apparent employee of the Department of Transportation did not affirmatively advise Claimant that he was not an attorney.

This Court has long held that those who deal with the State are presumed to know the law and deal with the State at their own peril. It was the duty of Claimant to establish the actual authority of the agents of the State. (Melvin v. State (1989), 41 Ill. Ct. Cl. 88.) Claimant presented no proof as to the authority of Mr. Corse, Mr. Owens or Mr. Hague. Claimant was charged with a traffic offense which resulted in the death of two people. Claimant presented no evidence or testimony that he was ordered not to obtain legal counsel of his own choosing. Claimant hired an attorney within the time to file a motion for new trial or appeal but apparently did not seek a new trial or appeal. Claimants argument, without authority or evidentiary support, appears to be that the State was determined to wrongfully suspend the Claimants drivers license, and that accordingly, Respondent is liable for Claimants damages sustained, including lost wages as a result of his leave of absence and other damages. No authority is found to support this argument. Indeed, if this argument were to prevail, then any State employee who lost employment or employment benefits upon conviction of criminal or traffic offenses could, upon reversal of the conviction or dismissal of the charges, be in a position to sue the State for losses so sustained as an indirect result of such charges and proceedings. This is not the law and the argument must fail.

Claimants second theory of recovery is based upon breach of an express employment contract. Claimant asserts that the terms of a contract cannot be modified ex parte by one party, without the knowledge of the other party, including employment contracts. He cites People, ex rel. Sterba v. Blaser (1975), 33 Ill. App. 3d 1. Sterba, supra, arises from a situation where an employee of the Illinois Environmental Protection Agency filed a suit for mandamus against the director and others seeking reinstatement to his position with the agency on the theory that he had been wrongfully dismissed without written charges and a hearing as required by his civil service status. Defendant filed a motion to dismiss which was denied. Defendant elected to stand on their motion to dismiss. Judgment was entered for the plaintiff and the appeal followed. Factually, the defendants sought to deny plaintiffs civil service status which would require a hearing and opportunity to be heard before the Civil Service Commission as a result of unilateral notations made by the defendants in plaintiffs personnel file. There was a notation that plaintiffs employment was an “emergency appointment.” Further, there was a notation that plaintiffs “probationary appointment” did not commence until 12 days after he began his actual employment. Plaintiff was not made aware of these notations. The court held, in essence, that the “notations” in plaintiffs personnel file, made without his knowledge, constituted an attempt on the part of the defendants to modify plaintiffs employment contract in an ex parte fashion, without the knowledge and consent of the plaintiff. The holding in the Sterba case is not compelling in the case at bar.

Claimant does not dispute that a class “C” drivers license was an essential requirement for his continued employment. The need for a drivers license was not a condition imposed on Claimant’s employment in an ex parte fashion by the Respondent. Claimant argues that the State unilaterally modified the Claimant’s employment contract by taking work hours away from him that he otherwise would have been entitled to work because he did not possess a valid drivers license. During the period of Claimant’s leave of absence, Claimant did not have a valid driver’s license which, admittedly, was a requisite to Claimant’s employment in the first instance, and to continued employment by the State at all other times. No change of Claimant’s contract was effected by Respondent. Claimant voluntarily took a leave of absence for 90 days. He was actually off work for less than 90 days.

The Court also finds that Claimant failed to exhaust his administrative remedies by failing to file a grievance pursuant to section 4 — 13 of the personnel policies and procedures manual.

For the foregoing reasons, the claim of Claimant is denied.


author: Epstein, J.

text:
    (No. 92-CC-0222
    Robert Lang, Claimant, v. Illinois Sports Facilities Authority, Respondent.

      Order filed January 30, 1995.

    Goldstein, Fishman, Bender & Romanoff (Patrick Reda, of counsel) for Claimant.
    Querrey & Harrow, Ltd. (Kevin J. Caplis, of counsel), for Respondent.
   ORDER

Epstein, J.

This cause coming on to be heard on the Respondents motion for summary judgment and motion to dismiss, the Court being fully advised in the premises, the Court finds:

(1) The Respondent seeks summary judgment on the grounds that its agents were sued in the Circuit Court of Cook County and were granted summary judgment. Alternatively, Respondent seeks dismissal on the grounds that Claimant failed to allege that the claim had been presented to the circuit court, and that notice of the injury was not given pursuant to section 22.1 of the Court of Claims Act. 705 ILCS 505/22.1.

(2) We decline to rule on either motion for the reason that we do not have jurisdiction of claims against the Illinois Sports Facilities Authority. Our jurisdiction is limited by the provisions of section 8 of the Court of Claims Act (705 ILCS 505/8) to claims against the State of Illinois, and in personal injury cases, against the Medical Center Commission, the Board of Trustees of the University of Illinois, the Board of Regents of the Regency Universities System and the Board of Governors of State Colleges and Universities. The Illinois Sports Facilities Authority is not an agency of the State of Illinois, but is a unit of local government. (70 ILCS 3205/4.) In that regard, it is the same as a municipality which is not subject to the jurisdiction of this Court as a respondent. We are constrained to dismiss this action for lack of jurisdiction.

It is therefore ordered that this action is dismissed and forever barred.


author: Sommer, C.J. Patchett, J.

text:
    (No. 92-CC-0448
    Guy Lenny Hayes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 30, 1994.

      Order on petition for rehearing filed January 30, 1995.

    Guy Lenny Hayes, pro se, for Claimant.
    Jim Ryan, Attorney General (Wendell Derek Hayes, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

Claimant, an inmate with the Illinois Department of Corrections, seeks a $25,000 judgment against the Respondent, State of Illinois, for personal injuries sustained by Claimant when he was burned by hot water thrown on him while he was working in the protective custody unit. Claimant alleges that an inmate in protective custody threw hot water on him, causing him to sustain varying degrees of bums.

It was Claimants job to feed the inmates locked in protective custody in X-house at, Stateville Correctional Center. Claimant had this job for approximately one month and performed his duties with another inmate. Claimant delivered food to inmates through a hole in the cell by pushing a tray into the cell.

On the date in question, an inmate asked the Claimant for extra food. The inmate threw hot water on Claimant that hit him from his chest to his stomach. After being injured, Claimant went straight to the sergeants office and was taken to the hospital that same day. Claimant contends that the correctional officers failed to do their job because there was no correctional officer available in the cell house to accompany the Claimant and his coworker; thus, preventing the incident. Claimant stated that guards accompanied the food servers on some shifts, but on some they did not.

Claimant contended that he never had a problem or involvement with the inmate who threw hot water on him. Claimant knew of no reason for the inmate to throw hot water on him, except that the inmate was angry because Claimant would not give him extra food “then and there.” Claimant denied that he did anything to cause his assailant to throw hot water on him. His assailant did nothing threatening toward Claimant prior to the throwing of the hot water.

In Petrusak v. State (1987), 39 Ill. Ct. Cl. 113, 114, this Court stated:

“The State is not an insurer as to the safety of an inmate in its custody. It does however have a duty to exercise reasonable care under the circumstances to prevent its inmates from suffering harm at the hands of other inmates. 0 ° “
Foreseeability of potential for harm is a necessary element which must be proven by the preponderance of the evidence in this type of case. What is foreseeable necessarily must be judged by the facts in each case and by taking judicial notice of the prison environment.”

In Phipps v. State (1991), 44 Ill. Ct. Cl. 105, 110, this Court stated:

“In cases where inmates have been assaulted by other inmates this Court has determined that to prove foreseeability of potential for harm it must be shown that Respondents agents anticipated, or should have anticipated, that third persons would commit criminal acts against the particular inmate who was attacked. See Carev v. State (1981), 35 Ill. Ct. Cl. 96; Childs v. State (1985), 38 Ill. Ct. Cl. 196.”

As in the Phipps case, supra, a claim of this nature cannot be successful if Claimant fails to show Respondents agents knew or should have known that Claimant would be singled out for an attack. No evidence was presented indicating Claimant warned Respondents agents or that Respondents agents otherwise knew he was in danger of attack. Claimant has failed to prove Respondents agents had sufficient notice, or any notice, so that the attack upon Claimant could have been foreseen.

Wherefore, it is hereby ordered that Claimants claim is denied.

ORDER

Patchett, J.

This case was originally a claim for personal injury suffered by an inmate of the Illinois Department of Corrections. Mr. Hayes was injured when hot water was thrown on him while he was working under protective custody.

This claim was denied in an opinion issued by this Court on September 30, 1994. Mr. Hayes subsequently filed a petition for rehearing.

The basis of the opinion denying the claim was that there was no proof that the State knew or should have known that Mr. Hayes would be the subject of an attack. Nothing in Mr. Hayes’ petition for rehearing alleges that such proof could be produced. Instead Mr. Hayes relies on the theory that inmates in protective custody are more prone to violence than other inmates.

The State is not the insurer of safety of inmates. Only when the State knows or should know that the inmate has been singled out, or likely to be subject to violence, and takes insufficient steps to protect that inmate, can liability be established. Here there was a total failure of proof on those issues.

Therefore, the petition for rehearing is denied.


author: Patchett, J.

text:
    (No. 92-CC-0646
    Eric Caine, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 23, 1995.

    Eric Caine, pro se, for Claimant.
    Jim Ryan, Attorney General (Diann K. Marsalek, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

The Claimant is serving a natural life sentence in the Department of Corrections. Mr. Caine had been a resident of the Stateville Correctional Center when he received a disciplinary report alleging that he violated certain rules of the Department of Corrections. The Claimant alleged that the Respondent failed to provide him with adequate notice of the charges against him or failed to conduct a timely disciplinary hearing on the charges. He claims that he suffered 120 days in segregation as a result and was denied due process. He seeks $2,600 in compensation.

The incident for which Mr. Caine originally received discipline occurred on December 7, 1990. The circumstances surrounding the incident were disputed. The department admitted, in a May 17, 1991, letter to the Claimant, that it did not conduct a hearing within eight days of the incident. This letter was made a part of the record as Claimants Exhibit 1. The eight-day requirement is contained in departmental rule 504.

The departments letter of May 17, 1990, specified that on the day of the incident, Mr. Caine left Stateville Correctional Center on a medical furlough and was returned on December 14, 1990. On December 18, 1990, he was transferred to the Menard Psychiatric Center. Approximately a month after arriving at Menard Psychiatric Center, Mr. Caine was placed in segregation.

The disciplinaiy report from Stateville Correctional Center regarding the incident of December 7, 1990, was received by Menard Psychiatric Center on January 7, 1991. It was served the same day on Mr. Caine. Mr. Caine was afforded a hearing by the Menard Psychiatric Center adjustment committee on January 9, 1991. The Administrative Review Board considered the matter on February 5, 1991.

In the letter dated May 17, 1991, and' referred to above, the Administrative Review Board recommended that the disciplinary report be expunged. The board also recommended that the “C” grade demotion (which was given to the Claimant) be deleted because it was not processed in a timely manner. Finally, the board recommended that the Claimant receive unassigned State pay for the time spent in segregation.

Mr. Caine admitted he filed a grievance and admitted that he received $5.24 for the days he spent in segregation. He understood the $5.24 to be for the 11 days spent in segregation at Stateville Correctional Center. He did not receive any unassigned pay for time spent in segregation in Menard Psychiatric Center. He arrived at the $2,600 sum of damages sought arbitrarily.

The record does not reflect the date when Mr. Caine was placed in segregation at Menard Psychiatric Center, nor does the record indicate why he was placed in segregation. The record is also silent as to how long Mr. Caine was in segregation at Menard Psychiatric Center. There is insufficient information, therefore, as to whether Mr. Caine could have pursued a grievance regarding his being placed in segregation by Menard Psychiatric Center.

The Claimant has the burden of proof to establish a claim against the State of Illinois in the Illinois Court of Claims. To the extent that this claim is for damages resulting from being placed in segregation at Menard Psychiatric Center, he has totally failed to meet his burden of proof.

The proof elicited at the hearing in this case indicates, on the other hand, that Mr. Caine was completely successful in pursuing his grievance regarding the incidents which occurred at Stateville Correctional Center. No further damages would therefore be due.

Finally, to the extent that Mr. Caines claim is a cause of action for alleged deprivation of due process, this Court lacks the jurisdiction to consider it. Issues of constitutionality are outside the jurisdiction of the Court of Claims. See Reyes v. State (1979), 35 Ill. Ct. Cl. 498 and Winzeler Trucking Co. v. State (1978), 32 Ill. Ct. Cl. 191.

For the reasons stated above, we hereby deny this claim.


text:
    (No. 92-CC-1059
    Vada Berniece Tuley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 6, 1995.

    Mike McElvain, for Claimant.
    Jim Ryan, Attorney General (Lawrence Rippe, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

On September 24, 1990, the Claimant, Vada Berniece Tuley, was injured when she fell on a “still wet,” slippery floor in a hallway at the Pontiac prison in Pontiac, Illinois.

The Claimant worked within the confines of the Pontiac correctional facility. However, she was not a State employee. She was an independent contractor.

The Claimants office and that of her supervisor were located next to each other in the basement of what was known as the Clinical Services Building. This area was shared with a part of the prison administration known as the B of I. The Claimant and her supervisor’s offices shared a common wall with no door. To reach the supervisor’s office, she had to leave her office and walk briefly in the hallway to her supervisor’s door. The hallway was maintained and cleaned under the supervision of Thomas Heenan, an employee of the State of Illinois. Normally, Mr. Heenan would have an inmate clean, mop or wax the floor. On September 24, 1990, inmate Earl Johnson mopped the floor. To do this, Mr. Heenan had to unlock a gate to allow him into the hallway, unlock a closet so that he could have the equipment to do the work, and then replace the equipment and unlock the gate so he could return to other duties.

There is no clear indication in the record as to when the mopping occurred, although the water had not evaporated off of the floor when Vada Berniece Tuley exited her supervisor’s office and fell. No warnings of any form were used by Mr. Heenan to tell the people working along this hallway that the floor was wet.

While in her supervisor’s office, Vada Berniece Tuley had her back to the hallway, did not hear the inmate mopping the floor, and did not observe anything unusual as she exited Betty Towal’s office door. She took one or two steps into the hallway and would have seen any warnings, if any had been present, telling of the wet floor. Not knowing that the floor was wet, Vada Berniece Tuley fell, sustaining significant injury.

The Claimant was elderly, was not wearing high heels or in any other way acting in a negligent manner, and from the record appeared to be exercising due care and caution under the circumstances.

There was no warning to the Claimant that the floor was wet. The State owed the Claimant a duty to inform her of such for her own personal safety. She was an invitee on the States premises. The duty to warn arises when unequal knowledge of danger exists between the landowner and the person on the land. This is especially true when the landlord knows harm might occur if no warning is given. (McColgan v. Environmental Control Systems (1991), 212 Ill. App. 3d 696, 571 N.E.2d 815, 156 Ill. Dec. 835.) Here, the unequal knowledge exists. Tom Heenan is in charge of the inmate mopping the floor and is fully aware of when the mopping began and when it ended. It is obvious that a wet floor is slick and that a person certainly can fall when walking on a wet concrete floor. Under the circumstances, the knowledge of the landlord, or the State of Illinois, far exceeds the knowledge that the Claimant had of the danger the concrete floor presents shortly after being mopped. Clearly, there is a duty to warn, and by failing to warn, the State is negligent.

The State of Illinois, as a landowner, owes the same duty that other landowners owe to people lawfully upon their premises. There is an obligation to see that the property is reasonably safe. (IPI Civil 120.02.01.) Further, the manner in which they conduct any activity must also be done with ordinary care. (IPI 3d Civil 120.03.01.) When a landlord mops a floor, it has the obligation of ordinary care for the safety of anyone that is rightfully present. Minters v. Mid-City Management Corp. (1947), 331 Ill. App. 64, 72 N.E.2d 729.

The evidence deposition of Dr. Alain Menguy is brief and provides, in detail, the medical significance of the injury suffered by Vada Bemiece Tuley. The injury is called a scaphoid-lunate separation. It was treated by fusing three bones in her left hand. That resulted in significant decreases of motion in the left hand as compared to the right hand. The medical care cost $7,868.11. Because of this injury, the Claimant lost the opportunity to earn $5,090.20. The medical bills and lost wages total approximately $13,000.

The Claimant returned to work, but found she was unable to perform the task of her employment. It was not until approximately two years later that she was able to begin working performing tasks that she was comfortable doing. Because her job was that of a clerical and secretarial worker, the weakness in her left hand was such that she was unable to make any significant employee contribution. At the time of her termination in February of 1991, the Claimant was making an annual salary of $16,692. It could be contended that the Claimant could have held a minimum wage job and earned approximately $8,500 per year. Therefore, the injury caused an additional wage loss of the difference between what she was making and a minimum wage job over the past two years, or approximately $16,500.

The Claimants testimony is clear on the pain that this injury caused. Her testimony is supported by her husbands recollection of the discomfort that the pins created when they rubbed against the cast. The disability that the Claimant encountered during her recuperation, along with the disability that she continues to encounter, is a significant limitation in her daily activities.

The Claimant has proved her case by a preponderance of the evidence. It is determined that she be awarded the sum of $50,000 for compensation for her actual damages as well as for pain and suffering. The matter of setoff and restitution is between the Claimant and the insurance company, but setoff to the State of Illinois has been duly considered in the recommended award.


author: JANN, J. Jann, J.

text:
    (No. 92-CC-1060
    John P. Tully, Claimant, v. The State of Illinois, State Board of Elections, Office of the Secretary of State of Illinois, and Office of the Attorney General of Illinois, Respondents.

      Opinion filed August 25, 1994.

      Order on petition for rehearing filed December 29, 1994.

    Albert Brooks Friedman, Ltd., for Claimant.
    Roland W. Burris, Attorney General (John Simon, Assistant Attorney General, of counsel), for Respondents.
   OPINION

JANN, J.

This cause came before the Court on Respondents motion to dismiss the complaint of Claimant, John P. Tully. Claimant Tully filed an amended complaint on December 15, 1992. Respondents’ counsel did not receive a copy of said amended complaint until oral argument was held on July 22, 1993, in Chicago, Illinois. Respondent was granted leave to file a reply in support of its motion to dismiss at the oral argument. Claimant was granted leave to file a memorandum in support of his claim on the same date. The aforementioned documents were subsequently filed by the respective parties.

Claimant seeks recovery of attorney fees, costs and interest incurred in litigation arising out of his election to the Illinois Appellate Court, 1st judicial district.

Facts

On or about October 4, 1989, William S. White submitted a judicial declaration of candidacy to the Secretary of State and requested certification of his candidacy pursuant to article VI section 12(d) of the Illinois constitution for retention to the Illinois Appellate Court. On July 29, 1989, Justice White had attained the age of 75, the age of mandatory retirement under the Illinois Compulsory Retirement of Judges Act. Justice White’s declaration of intent to succeed himself was acknowledged by the Secretary of State and transmitted to the State Board of Elections. The State Board of Elections recorded and certified Justice White’s certificate in December, 1989. Justice White had included a letter with his declaration of candidacy to the Secretary of State that he would challenge the constitutionality of the Illinois Compulsory Retirement of Judges Act claiming that said statute constituted unlawful age discrimination.

In November 1989 Claimant filed four separate sets of petitions, containing the signatures of the requisite number of registered voters, in order to qualify as a candidate for the position of Illinois Appellate Court Justice, in the March 1990 Democratic primary. In December 1989 Claimant withdrew his name from the candidacy of three of the original vacancies chosen and chose to remain as a qualified candidate for the “vacancy of William S. White.” (The Secretary of States office listed Whites office as a vacancy at this time.) On December 5, 1989, the Secretary of State mailed copies of the certification of all judges seeking retention to the State Board of Elections as required. Justice White’s certification was included in this mailing.

Claimant won the March 1990 Democratic primary election. The State Board of Elections certified Claimant and the winner of the Republican primary, Lester Bonaguro, as candidates to be placed on the general election ballot to fill the vacancy of William S. White in the November 6, 1990, general election.

On August 31, 1990, the State Board of Elections, having received no objections from any parties, certified Justice White’s name on the judicial retention ballot. Ergo, Claimant and his Republican counterpart were placed on the ballot to fill the vacancy of Justice White and Justice White was placed on the ballot for retention, Claimant stated he had contacted the Secretary of State’s office on several occasions after the primary election and before the date Justice White was certified for retention. He was not informed that Justice White’s name was to be placed on the ballot until two months before the November 1990 general election.

On October 1,1990, Claimant’s attorney sent out emergency letters to Respondents objecting to the appearance of Justice Whites name on the ballot. On October 4, 1990, Claimant filed an emergency petition for an order of mandamus in the circuit court of Cook County, approximately one month prior to the general election. Claimant requested various forms of emergency relief including: an order of mandamus commanding Respondents to declare Justice White ineligible; an order enjoining further printing and distribution of the ballots containing Whites name; costs and any other relief deemed just and proper. White responded to the complaint, alleging the affirmative defense that the Compulsory Retirement of Judges Act was unconstitutional. The Secretary of State, the State Board of Elections and the Cook County clerk all filed answers stating they would abide by the decision of the circuit court. The Attorney General was not a party to the suit. The circuit court entered an order maintaining the status quo and retaining White’s name on the retention ballot as the ballots had been printed and absentee ballots had been sent out and received. Claimant Tully and his Republican opponent remained on the ballot to fill White s vacancy.

On November 6, 1990, Justice White was elected to succeed himself and simultaneously, Claimant was elected to fill the vacancy of Justice White.

On November 27, 1990, the circuit court held the Mandatory Retirement of Judges Act to be unconstitutional, declared the retention of Justice White valid, and declared the election of Claimant null and void.

On June 4, 1991, the Illinois Supreme Court reversed the decision of the circuit court and declared that White was bound by the doctrine of laches from asserting any challenge, constitutional or otherwise, to the retirement statute. Justice White had never made a legal challenge to the constitutionality of the Retirement Act until filing an affirmative defense in Tully v. Illinois. Whites election was vacated and the Supreme Court mandated that the Board of Elections declare Claimant the valid winner. (See Tally v. Illinois (1991), 143 Ill. 2d 425, 574 N.E.2d 659.) On August 1, 1991, Claimant was seated on the appellate court, first district, with full back pay for the eight months he was barred from sitting by the adverse lower court ruling.

Claimant seeks attorney fees in the amount of $16,450, interest expense of $2,400 for monies borrowed during the circuit court and supreme court cases and costs of $1,000 in the lower court case. Claimant seeks relief under 42 U.S.C. section 1983 for all actual damages sustained as a result of alleged infringements of his constitutional rights and under 42 U.S.C. section 1988 for attorneys’ fees. Claimant also alleges that his injuries were the direct and proximate result of the intentional acts of officers, employees or authorized agents of Respondents while acting within the scope of their employment. Claimant contends that when White filed for retention as an appellate court justice, contrary to the Retirement Act, it was the duty of the Attorney General to challenge the merits of White’s actions on behalf of the people of the State of Illinois. Claimant further asserts that after his election on November 6, 1990, it was the Attorney General’s duty to represent Claimant as a duly elected official of the State and that the Attorney General’s failure to represent Claimant resulted in the costs previously enumerated. Claimant also asserts that Respondents acted to deprive him of first and fourteenth amendment rights.

The Law

Respondent argues that the first amended complaint, like the original complaint, fails to allege the existence of specific statutory authority which would allow Claimant to recover costs and attorney fees. Claimant argues he is entitled to recover under a tort theory claiming Respondents breached their duty to Claimant in allowing White’s name on the ballot. We find Respondent breached no duty to Claimant. The circuit court, in fact, ordered the status quo maintained. The supreme court in its reversal of the circuit courts decision to seat White rather than Tully recognized the expense and prejudice to Tully but did not see fit to award costs. (Tully v. Illinois, supra.) Count I states no statutory basis for the recovery of attorneys’ fees or costs. We have consistently held that the law in Illinois is clear that one cannot recover for attorneys’ fees and court costs unless provided under specific statutory authorization. (Kadlec v. Illinois Department of Public Aid (1987), 508 N.E.2d 342 (Ill. App. 1st Dist.)) The Illinois Supreme Court-has further held that interest is only recoverable against the State if it is specifically provided in a statute. (I & D Pharmacy v. State (1984), 37 Ill. Ct. Cl. 37, 42.) Count I fails to state a claim upon which relief can be granted and is hereby dismissed.

Count II asserts that Claimant was owed representation by the Attorney General in his litigation against White or that in the alternative, the Attorney General should have paid his costs of litigation. Claimant relies upon Ware v. State (1985), 37 Ill. Ct. Cl. 43. The Ware case is easily differentiated and is not apposite to the case at bar. Ware stated that the Attorney General’s statutory duty arises when the action involved is premised upon an act resulting from the performance of an official act. (Ware at 49.) Claimant Tully’s case arose from his status as a candidate, not as a result of an act arising out of his judicial duties. When Claimant filed his suit in circuit court, his status as an elected official was not settled; further, the circuit court ordered the status quo maintained and thereby no duty arose on the part of the Attorney General. Tully’s election on November 6, 1990, at which time Justice White was simultaneously elected to succeed himself, did not put Tully in the circumstances outlined by Ware, supra. Although both White and Tully were elected, Tully was not seated on the Appellate Court until August 1, 1991, and did not undertake judicial duties until said time. We find count II fails to state a cause of action upon which relief may be granted and is hereby dismissed.

Count III asserts deprivation of due process under 42 U.S.C. section-1983 by Respondents’ various actions in certifying White on the retention ballot. The U.S. Supreme Court has held in Will v. Michigan Department of State Police (1989), 109 S. Ct. 2304 that “neither a State nor its officials acting in their official capacities are persons under §1983.” As Claimant fails to state a claim under section 1983, count III must be dismissed.

This cause is hereby dismissed.

ORDER

Jann, J.

This cause comes on to be heard on Claimant’s petition for rehearing. The Court having reviewed the record and Claimant’s petition finds:

Claimant’s petition is hereby denied. Despite Claimant’s swearing in, and eventual recoupment of back pay to the date thereof, Claimant’s cause of action arose out of circumstances of his contested election, not the performance of official duties.

This cause is hereby dismissed with prejudice.


author: Frederick, J. Frederick, J.

text:
    (No. 92-CC-3100
    Kenneth Baker, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 12, 1994.

      Order on petition for rehearing filed July 14, 1994.

    Kenneth Baker, pro se, for Claimant.
    Roland W. Burris, Attorney General (Phillip Rorbertson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Kenneth Baker, an inmate in the Illinois Department of Corrections, filed his complaint in the Court of Claims on May 21, 1992. Claimant seeks $10,000 in damages for the alleged negligence of the State in failing to provide proper medical care and treatment for his injured left index finger. The cause was tried by Commissioner Fryzel.

The evidence adduced at trial indicated that Claimant injured his left index finger while lifting weights in the prison yard on May 28, 1991. Claimant had 340 pounds smash his finger. Claimant went to the prison hospital and talked with Dr. Patel. Claimant testified that Dr. Patel stated that he would not be able to take x-rays because of the time. Claimant testified he requested immediate x-rays. Claimant was given aspirin and returned to his cell house. Claimant testified he protested being returned to his cell house. Later, in the middle of the night, Claimant returned to see Dr. Patel because of pain and was given Tylenol with codeine. Claimant took the Tylenol with the other medications. On the morning of May 29, 1991, Claimant had continued pain and returned to the prison hospital. Claimants hand was x-rayed and a broken finger was diagnosed. Claimant was taken to St. James Hospital and had surgery where pins were put in his finger. He was returned to the prison hospital where he stayed until the next day. A partial cast was placed on the finger. The cast was removed in a few weeks. He had no physical therapy. The pins were left in the finger about a month when they were removed at the prison hospital. The doctor had problems removing one of the pins which caused Claimant pain. Claimant indicated he could not move his finger and could not close the finger. Claimant believes he should have been x-rayed and treated immediately by Dr. Patel and indicated he should be compensated for his suffering.

Claimants medical records which were introduced into evidence indicate that Claimant presented to Dr. Patel at 3:40 p.m. on May 28, 1991. The description of injury was that Claimant was unable to move his left index finger, slight swelling to knuckle, and no bruising. Claimant was treated with a wrap to his hand, an analgesic and a sling. A return visit was indicated for an x-ray in the morning as soon as possible. The diagnosis was blunt trauma to left hand with a possible fracture. The injury was listed as a sports injury and Claimant was advised not to lift weights for four to six weeks. The medical records further indicate that Claimant was given Tylenol 3 on May 29, 1991, had x-rays at 10:30 a.m., and at 3:35 p.m. was sent to St. James Hospital for reduction of a fracture of his left index finger. The fracture was an oblique fracture of the proximal phalanx near the distal end. Claimant denied any history of tingling or numbness. The reports also indicate that when Claimant was seen by Dr. Pankaj on May 29, 1991, he was not in acute distress but had marked tenderness at the pip joint area. The pins were removed on June 19,1991.

On cross-examination, Claimant testified that on May 28, 1991, a nurse told him she did not understand why the doctor did not send him to an outside hospital at that time. Claimant testified he had permanent injury to his finger as he cannot close his finger. He believes Dr. Patel was negligent in that he did not treat the fracture immediately but instead sent him back to his cell house. The Claimant called no expert witnesses and the Respondent called no witnesses.

Claimant’s claim is a cause of action sounding in medical negligence. An inmate who files a claim against the State alleging medical malpractice must establish a breach of duty through expert testimony, establish that the Respondent deviated from the standard of care, and establish through expert testimony that the deviation was a proximate cause of Claimant’s injury. (Pink v. State (1991), 44 Ill. Ct. Cl. 295.) Claimant has failed to present any expert testimony to establish the standard of care, that Respondent deviated from the standard of care, and that the deviation was a proximate cause of the Claimants injury. (O’Donnell v. State (1980), 34 Ill. Ct. Cl. 12.) The standard of care is that care which is provided to a patient by reasonably well-trained medical providers in the same circumstances in a similar locality. The standard must be generally accepted in the medical community, and it is not sufficient for the patients expert witness to testify that he would have acted differently in the same circumstances, or that alternative methods of proceeding exist. (Wilsman v. Sloniewicz (1988), 172 Ill. App. 3d 492.) The Claimant must establish the standard of care. Thomas v. State (1987), 40 Ill. Ct. Cl. 188; Bock v. State (1991), 43 Ill. Ct. Cl. 299.

The facts of this case are strikingly similar to the facts found in Ray v. State (1992), 44 Ill. Ct. Cl. 173. In Ray, supra, this Court denied the claims of an inmate who broke his finger in an altercation. In that case, it was alleged there was inadequate and negligent medical treatment, including delays in treatment and in obtaining an x-ray of the hand, which caused the finger to heal improperly. However, the Claimant failed to adduce proof as to the applicable standard of care and the States deviation from that standard and the claim was denied.

While the Court has indicated a deviation from the standard of care may be found if the inadequate care is obvious, such as where a sponge is left in during surgery, there still must be proof that the deviation was a proximate cause of the alleged injury. Bock v. State (1991), 43 Ill. Ct. Cl. 299; Purtle v. Hess (1986), 111 Ill. 2d 229.

The Court finds that inadequate care is not obvious in this case and the Court would have to rely on expert testimony to establish the standard of care and a deviation thereof. The patient was seen at 3:45 p.m., had some swelling, was given pain medication, and x-rayed at 10:30

a.m. the next morning. There is nothing in the record to establish the standard of care and if there was a deviation of that standard. There is also absolutely no competent evidence that the pain or seriousness of the injury was exacerbated by the States treatment and was therefore a proximate cause of Claimants injury.

The standard of proof for causation is that Claimant must prove by a preponderance of the evidence that Respondents conduct was a proximate cause of the injury. (Wise v. St. Mary's Hospital (1978), 64 Ill. App. 3d 587.) Proximate cause is an essential element that must be proved in every medical malpractice case. Failure of the Claimant to establish that an act of medical negligence proximately caused the injuries suffered by the Claimant defeats the claim. (Tops v. Logan (1990), 197 Ill. App. 3d 284.) The Claimant sustains his burden by proving, generally through expert testimony, that Respondents breach of the applicable standard of care is more probably true than not the cause of Claimants injury. Borowski v. Von-Solbrig (1975), 60 Ill. 2d 418; Bishop v. Baz (1991), 215 Ill. App. 3d 976.

Proximate cause is not established where the causal connection is contingent, speculative or merely possible. (Newell v. Corres (1984), 125 Ill. App. 3d 1087; Pumula v. Sipos (1987), 163 Ill. App. 3d 1093; Mazur v. Lutheran General Hospital (1986), 143 Ill. App. 3d 528; Piano v. Davidson (1987), 157 Ill. App. 3d 649.) The testimony in this cause as to proximate cause is non-existent. As the Claimant must establish that the failure to x-ray to a reasonable degree of medical certainty more probably than not caused the injury, he has failed to sustain his burden of proof. Pumula v. Sipos (1987), 163 Ill. App. 3d 1093.

In this case, Claimant has failed to establish that a direct causal relationship exists between the Respondents alleged deviation from the standard of care and the Claimants resulting injury.

Those practicing the medical arts in the penitentiary are held to the same standard of care as those practicing in the communities of our State. To hold otherwise would be to abandon reason and common sense. We must recognize, however, that constraints necessarily exist in correctional institutions which have or may have a negative impact on the ability to deliver medical services. The medical arts practitioner should not be held liable for injuries resulting from these constraints. However, these constraints, while interfering with proper medical care, do not lessen the standards required of the medical arts practitioner. There is nothing unduly burdensome in holding that physicians employed by the Department of Corrections give inmates whom they treat the same duty of care which they owe their patients in private practice. (Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 1002.) In this case, there is no competent evidence that the prison physician deviated from the standard of care or that any actions of the doctor proximately caused the injury of Claimant.

Based on the foregoing, it is the judgment of this Court that Claimants claim is denied.

ORDER

Frederick, J.

This cause comes on Claimants petition for rehearing, and the Court having reviewed the entire court file and the Court’s opinion, and the Court being fully advised in the premises, wherefore, the Court finds:

(1) That the Court properly understood the evidence adduced at trial.

(2) That the medical reports adduced to not establish a standard of care.

(3) That the medical reports were considered by the Court but they do not establish the standard of care.

(4) That following different procedures do not necessarily establish a standard of care and a deviation therefrom.

(5) That the Court was correct that Claimant failed to produce competent evidence of the standard of care, that Respondent deviated therefrom, and that such deviation was a proximate cause of Claimants injury.

(6) That the issues raised pursuant to Court of Claims Regulations 790.150 are not grounds for a rehearing. The issue here is standard of care and proximate cause which would not require a physical examination.

(7) That to prevail, Claimant would have to provide proof by way of expert testimony.

(8) That the Court placed no burden on Claimant except the proper burden of proof. Informa pauperis applies only to Claimant’s inability to pay court costs. There is no provision for or requirement that the Court provide any claimant expert witnesses.

(9) That there is no authority to hold this Claimant to a lesser burden of proof than every other claimant.

(10) That Claimant had a fair trial.

Therefore, it is ordered that the petition for rehearing is denied.