author: Raucci, J. Raucci, J.

text:
    (No. 83-CC-1840
    Calvin Cotner, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 11, 1987.

      Order on denial of rehearing filed November 2, 1987.

    Komessar, Wintroub & Cirignani (Mark Komessar, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Ralanda Webb, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This matter is a tort action arising out of an accident on June 22, 1987, wherein the Claimant was riding a motorcycle at 31st Street and Brainard Avenue in LaGrange Park, Illinois, when he allegedly went over a bump and went out of control, falling to the pavement and receiving severe injuries.

The issue is whether the State had constructive notice by reason of a companion cyclist, who stated a year earlier he went over the same bump and it jarred his tape player so that the tape fell to the ground.

Mike Lavelle, the companion cyclist, testified the bump was six inches high and that he never complained about the bump and never notified the Illinois Department of Transportation. Police officer William Boalwag, the investigating officer, estimated the bump was approximately four inches high. The Claimant’s father measured the bump at 4% inches high. The Department of Transportation field technician estimated the height as between 1M to 3 inches.

V. Cigunelis, a field maintenance technician, testified that he made yearly visual inspection and did not see such a bump. No deficiency was discovered or reported on 31st Street in his February 1982 inspection. There were no notifications by police departments, no public complaints, and no agencies’ employees reported any deficiency.

The State is not an insurer of the safety of users of highways. As pointed out by Respondent, the State need only maintain its roads in a reasonably safe condition. (Laine v. State (1977), 32 Ill. Ct. Cl. 10, 14-15.) The burden is upon Claimant to show that the State had actual or constructive notice of defects that cause injuries. (Norman v. State (1982), 35 Ill. Ct. Cl. 693, 695.) “The mere fact that a defective condition existed if, in fact, it did exist, is not in and by itself sufficient to constitute an act of negligence on the part of the Respondent.” Palmer v. Northern Illinois University (1964), 25 Ill. Ct. Cl. 1.

In the instant case, the State conducted an investigation of the affected roadway four months before the accident. No defect was observed. No complaints were received. According to the record, this case represents the only reported accident at this area of roadway.

The testimony of Lavelle is insufficient to charge Respondent with notice of the defect in the road. He testified that he hit the “same” bump one year earlier. He was operating his motorcycle at a speed of 40 to 45 miles per hour and did not lose control of his cycle. After his tape fell to the street, his examination of the bump consisted of taking “kind of a glance at it.” Under all the circumstances of this case, the testimony of Lavelle is insufficient to show constructive notice on the State.

It is therefore ordered that the claim be, and hereby is dismissed, with prejudice.

ORDER ON DENIAL OF REHEARING

Raucci, J.

This cause coming on to be heard on the Claimant’s petition for rehearing, the Court being fully advised in the premises, it is hereby ordered that the Claimant’s petition for rehearing is denied.


source: Caselaw Access Project

author: POCH, J.

license: Public Domain

text:
    (No. 83-CC-2254
    Memorial Medical Center, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 4, 1988.

    Donald M. Craven, for Claimant.
    Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Respondent has moved for summary judgment on this vendor-payment claim, filed under the provisions of section 11 — 13 of the Public Aid Code (Ill. Rev. Stat. 1985, ch. 23, par. 11 — 13), on the ground that the documents submitted by Claimant, in support of its claim, fail to establish its compliance with applicable statutory law and related requirements. The Claimant having received due notice, the Court finds as follows:

Claimant hospital is seeking a vendor payment under the Medical Assistance Program (MAP) administered by the Illinois Department of Public Aid (IDPA). The questions presented for resolution are whether Claimant’s services here related to an abortion performed on its Medicaid-recipient patient, whether Claimant fully and accurately identified its medical services in invoicing them for IDPA’s payment consideration, and whether Claimant had demonstrated its compliance with IDPA’s requirements, as conditions precedent to its entitlement to payment for these services.

IDPA’s report, the contents of which are prima facie evidence under Court Rule 14, advises that Claimant submitted a single invoice, without any attached document, for these March 1982 services. IDPA notes that the information supplied by Claimant is inconsistent, in that its entries on the IDPA invoice-form are contradictory in describing the services which Claimant rendered to its patient. Although one coded entry on the invoice represents that no surgery was performed during the patient’s inpatient stay, Claimant’s ancillary-service entries include charges for operating room, recovery room and anesthesiology; and its “accommodation” entries describe this as a surgical stay. As disclosed in its invoice, Claimant’s services included surgical services, and contrary to IDPA’s invoice-preparation requirements, Claimant failed to identify the surgical procedure which was performed on the patient. Compare IDPA’s requirements for invoice-reporting of services rendered, as discussed in Methodist Medical Center v. State (1986), 38 Ill. Ct. Cl. 208, 209-10.

One of Claimant’s invoice-entries identifies that surgery as an abortion, performed on Claimant’s patient during the stay being invoiced. The invoiced charges were disallowed for payment by IDPA, on a voucher dated April 2,1982. The voucher notified Claimant that the disallowance resulted from Claimant’s failure to submit an abortion certification form with its invoice.

The significance of Claimant’s abortion-code entry is found in certain prohibitions, in State and Federal law, against IDPA’s payment for abortion-related services. Section 5 — 5 of the PAC excludes such services from those types of medical treatment for which IDPA was authorized to pay. As of March 1982, when Claimant rendered the services here at issue, the General Assembly had directed that payment was to be authorized for:

° ° ° any other medical care, ° ° “, but not including abortions, or induced miscarriages or premature births, unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment, or except an induced premature birth intended to produce a live viable child and such procedure is necessary for the health of the mother or her unborn child. (Ill. Rev. Stat. 1985, ch. 23, par. 5 — 5.)

In assessing the payment-entitlement of an invoice submitted under any exception to the above prohibition, IDPA is to require:

° ° ° that a written statement including the required opinion of a physician shall accompany any claim for reimbursement for abortions, induced miscarriages or premature births. This statement shall indicate what procedures were used in providing such medical services. (Ibid.)

Respondent has no authority to make payment unless the vendor’s invoice for abortion-related services is documented in accordance with the requirements of section 5 — 5.

The U.S. Congress enacted legislation which has a similar prohibitive effect upon Respondent’s payment for abortions for Medicaid recipients. The so-called Hyde amendments deny Federal Medicaid matching funds (“Federal financial participation,” or FFP) for the States’ costs of paying medical vendors for performing abortions, except under specified circumstances. See generally Harris v. McRae (1980), 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784; and see William v. Zbaraz (1980), 448 U.S. 358, 100 S. Ct. 2694, 65 L. Ed. 2d 831, involving a constitutional challenge of section 5 — 5 of Illinois’ PAC. The Hyde amendment exceptions would require a physician’s written certification as to the patient’s medical condition, similar in content to that required under section 5 — 5.

The Federal physician-certification requirements appear in sections 441.203 and 441.206, of title 42, Code of Federal Regulations; and are further explained in IDPA Rule 140.413 (89 Ill. Admin. Code §140.413). A hospital can comply with these State and Federal requirements by insuring that its invoice, submitted to IDPA, is accompanied by an abortion payment application (DPA form 2390), a form in which the physician certifies in his or her professional judgment that the named recipient’s life would be endangered if her fetus were carried to term.

As noted, Claimant hospital’s invoice listed inconsistent entries, and was deficient in its failure to identify the surgical procedure performed. No explanatory documents accompanied it. If these services were related to abortion surgery, then Claimant could have submitted a correctly prepared, “rebill” invoice, entering the code for the specific abortion procedure which was performed on the patient, and attaching a certification form (DPA 2390) completed by her physician, describing the emergent circumstances which occasioned that particular procedure. If no abortion had been performed — and the initial invoice was incorrect in that respect, then Claimant’s rebill-invoice could have corrected the erroneous entries and accurately identified the procedure which was in fact performed. In this case, however, Claimant failed to submit any rebill-invoice. IDPA reports receiving no rebill of these services, containing internally consistent entries and identifying the procedure which was performed. Claimant does not allege that any such rebill was submitted, within the one-year period following the patient’s stay, as required by subsection (d) of IDPA Rule 140.20, and by 42 CFR §447.45. Good Samaritan Hospital v. State (1982), 35 Ill. Ct. Cl. 379; Rock Island Franciscan Hospital v. State, 39 Ill. Ct. Cl. 100; and Riverside Medical Center v. State (1986), 39 Ill. Ct. Cl. 301.

Respondent has attempted, through discovery, to seek Claimant’s production of its records, including any abortion certification or other documents identifying the surgical procedure and showing whether Claimant had complied with applicable IDPA rule requirements. Claimant answered by admitting each allegation in Respondent’s request for admission of facts, thereby representing that Claimant has no relevant documents to produce, other than those submitted with its complaint.

The Court finds that it can make no vendor-payment award in this matter. If IDPA is to administer its program in accordance with applicable requirements, then vendors must be expected to identify the medical services for which they are charging, by completing and documenting IDPA’s invoice-forms in accordance with those requirements. It is apparent that Claimant failed to do so in this instance. As a result, neither Respondent nor the Court is able to determine, from this record, what specific services Claimant has rendered and is seeking payment for.

IDPA is obligated to require that vendors report their services accurately and consistently, as a condition precedent to being paid for them; and the State risks a denial of Federal financial participation (FFP) in its MAP expenditures if IDPA fails to do so.

[W]e note that the federal government’s continuing participation in the funding of Illinois’ MAP program is dependent upon IDPA’s regular enforcement of these regulatory requirements. Applicable here are the requirements: that medical vendors must fully and correctly complete their invoice-forms being submitted for IDPA’s payment consideration, so as properly to identify the services being invoiced; 0 ° ° and that correctly-prepared invoices be timely received by IDPA. (Methodist Medical Center v. State (1986), 38 Ill. Ct. Cl. 208, 210.)

We find no occasion here to depart from our prior holdings and thereby risk jeopardizing Respondent’s continuing entitlement to Federal matching funds for IDPA Medical Assistance Program expenditures.

Respondent also asserts that Claimant’s cause of action for payment of these services had already been barred, under section 11 — 13 of the Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, par. 11 — 13), when this Court action was filed. IDPA’s position is that the limitations bar of the Court of Claims Act deprives Claimant of the opportunity to seek payment for these services before this Court. Ill. Rev. Stat. 1985, ch. 37, par. 439.22.

Under section 11 — 13, a vendor’s cause of action “accrued” upon IDPA’s written notification that it was disallowing a vendor’s “claim” (invoice). Here, Claimant’s claim was disallowed on April 2, 1982. The statute provided that vendors “shall commence their actions * * * within one year next after” such accrual. In this instance, Claimant commenced its action, seeking to enforce payment of this patient account, on May 2,1983, more than one year following accrual of its cause in respect to that account. We agree that this action was not timely filed, and thus that Claimant’s cause as to this account had already been “forever barred from prosecution” under section 22 of the Court of Claims Act. Ill. Rev. Stat. 1985, ch. 37, par. 439.22.

It is therefore ordered that Respondent’s motion for summary judgment on the complaint and underlying cause, based upon the grounds addressed above in this opinion, is hereby granted; judgment is entered against the Claimant and in favor of the Respondent; and the claim is dismissed with prejudice.


author: Roe, J. Roe, J. Poch, J. Poch, J.

text:
    (No. 83-CC-2496
    Thomas J. Sneed and Barbara A. Sneed, Claimants, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed August 18, 1983.

      Order on rehearing filed September 7, 1984.

      Opinion filed March 15, 1988.

      Order on denial of rehearing filed May 13, 1988.

    Thomas J. Sneed and Barbara A. Sneed, pro se, for Claimants.
    Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Roe, J.

This cause having come for consideration on the Respondent’s motion to dismiss and the Court being duly advised in the premises:

Finds, that the claim No. 83-CC-2496 is a duplicate of claim No. 81-CC-2195.

It is hereby ordered, that this cause be dismissed with prejudice.

ORDER ON REHEARING

Roe, J.

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

It is hereby ordered that our order of August 18, 1983, be, and hereby is, vacated and Respondent’s motion to dismiss is hereby denied.

OPINION

Poch, J.

This claim is for crop loss due to flooding in the spring of 1983. Hearings were conducted before Commissioner Robert H. Rath. Both parties have filed their briefs and Commissioner Rath has duly filed his report.

This claim is a sequel to the claim of Claimants adjudicated in cause No. 81-CC-2195 before this Court in which Claimants were awarded damages. In this case, Claimants seek an award based on damages to their truck-farm operation in the flood of 1983 and involve similar, though not identical, issues as previously adjudicated.

Claimants contend that during the construction of Interstate 57 through Alexander County by the State of Illinois, Respondent removed dirt from a public roadway known as the Sears-Roebuck Road thereby permitting the drainage of water to flow upon and across the above-mentioned public roadway flooding their property and damaging fruit trees, wheat, a strawberry patch, onions and cabbage.

Claimants’ main contention is that the State has failed to replace the Sears-Roebuck Road in the manner and condition that this road existed prior to the construction of Interstate 57, including the condition of culverts and water control flaps installed on culverts.

At the hearing in this case, Claimants testified that subsequent to the prior case the State attempted to replace the contour of the Sears-Roebuck Road but failed to “finish the job.” Further, Claimants contend that the State failed to replace a water control “flap” on a culvert to impede the flow of water so that water would only run north to the point of the flap and not beyond so as to flood Claimants’ property.

Claimants’ theory necessarily asserts that the State is responsible for restoring the contours and impediments to the flow of water that existed prior to the State’s construction of Interstate 57. Critical to the case of the Claimants is proof of the condition of the Sears-Roebuck Road prior to the construction of Interstate 57 including such culverts and water control flaps as may have existed at that time. In the previous case, Claimants succeeded in showing that a portion of the Sears-Roebuck Road had been removed which allowed water to flood Claimants’ land. It is now agreed by Claimants and Respondent that Respondent has restored the Sears-Roebuck Road to its original condition in compliance with Claimants’ complaint in the earlier case.

Respondent’s agents testified that there is no record of culverts and water control flaps extant on the Sears-Roebuck Road prior to the construction of Interstate 57 comparable to those described by the Claimants. Topographic survey books predating the construction of Interstate 57 in 1965 and 1969 portray certain pipes and water control devices crossing under the Sears-Roebuck Road but show no water control flaps. Richard Brake, a district field engineer of Respondent, testified that such flaps would have been shown if they had existed. Although a 10-inch metal pipe was restored under the Sears-Roebuck Road, no water flow flap gate was installed because no records could be found to support the contention that such a flap ever existed.

Mr. Sneed testified at length concerning his theory of the directional flow of flood waters to and from his property, yet, he failed to demonstrate that Respondent has continued in its negligence which resulted in Claimants’ first award in the preceding case. Claimants’ theories of liability are insufficiently supported to justify the conclusion that Claimants have met their burden of proof with respect to liability in this case.

Numerous photographs, maps, diagrams and topographic studies admitted in evidence and discussed on the record failed to show or convince, by a preponderance of the evidence, that the State has failed to replace such impediments as may have existed prior to the construction of Interstate 57 or that it has contributed in any other way to Claimants’ water control problem.

There is no question that an owner of land which, by reason of its elevation, is servient to, and provides natural drainage for, the surface waters of higher lands may, by prescription, obtain an easement to free his land of the natural burden. As to surface water drainage, the owner of servient land may, by the construction of a levee or other barrier to natural drainage, reverse the natural benefit of dominant land and insist that water not be permitted to fall onto the owner’s servient estate. (Montgomery v. Downey (1959), 17 Ill. 2d 451, 162 N.E.2d 6.) Critical to this proposition, however, is a showing of the condition or existence of the levee or other barrier to natural drainage which has existed by prescription and entitles the owner of the servient land to maintain the barrier. Claimants have failed to establish the condition or existence of the barrier with evidence sufficient to meet their burden of proof in this claim for damages against Respondent.

For the reasons stated above, it is the decision of the Court that this claim be, and hereby is, denied.

ORDER ON DENIAL OF REHEARING

This court having considered the Claimants’ request for rehearing as well as the Respondent’s reply and objection thereto, and being fully advised in the premises, finds that the Claimants have failed to set forth matters not previously considered by this Court pursuant to Supreme Court Rule 367 at 87 Ill. 2d R. 367. It is therefore ordered that Claimants’ request for rehearing is denied.


author: Patchett, J. Patchett, J.

text:
    (No. 84-CC-0510
    Sara L. Gillmore, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 14, 1986.

      Order on motion for rehearing filed August 5, 1987.

    Greenberg, Janssen & Becker (Jay H. Janssen, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This matter arises out of an accident which occurred on June 10, 1983, at approximately 10:00 a.m. The accident occurred at premises leased and maintained by the State of Illinois, located at 1301 Concordia Court, Springfield, Sangamon County, Illinois. These premises are leased and operated by the Illinois Department of Corrections as a training school for prison guards.

On the day in question, Sara L. Gillmore, the Claimant, was on the premises as an invitee to attend the graduation ceremony of the prison academy training center. While walking between buildings, the Claimant fell to the ground and received substantial injuries. Upon a careful review of the transcript and the testimony adduced at the hearing by all of the witnesses for both the Claimant and the Respondent, we feel that the Claimant has not met her burden of proof by a preponderance of the evidence that she fell due to a defective sidewalk, or a sidewalk which was not reasonably safe for foot traffic. We have reviewed the evidence, looked at the photo which was admitted as evidence, and carefully examined the testimony of witnesses Shirley Ongman and John G. Smith. We find their testimony to be particularly persuasive as it applies to the failure of the Claimant to meet her burden of proof. Witness Shirley Ongman indicated that the Claimant fell when her foot hit the edge of the sidewalk. Witness John G. Smith was in charge of maintenance at the facility on the date of the accident. He testified that the drop-off between the sidewalk and the ground was approximately one inch (1").

It is clear that the State is not an insurer required to pay for all accidents that occur on its property. It is only the duty of the State to maintain the sidewalks with reasonable care and to make them reasonably safe. In this case, the Claimant not only failed to show that the sidewalk was defective, but she further failed to show that the accident even occurred as a result of stumbling on the sidewalk. She may well have stumbled on the gap between the sidewalk and the ground. In addition, the testimony adduced at the hearing clearly established that the range of the gap, or unevenness of the concrete, was only one inch to one inch-and-a-half (V'-Dí"). The Claimant simply failed to prove that the sidewalk was defective, and has further failed to prove by a preponderance of the evidence that the sidewalk was the actual cause of the injury.

Therefore, for all the reasons stated above, the claim of Sara L. Gillmore is denied.

ORDER ON REHEARING

Patchett, J.

This cause comes on for hearing upon the motion for rehearing filed herein by the Claimant. An opinion was filed in this Court on March 14,1986, finding for the Respondent. Subsequently, the Claimant, through her attorney, filed for a rehearing. A rehearing was granted, and oral argument was heard before the entire Court.

The motion for rehearing and oral argument raised few, if any, new issues. The Claimant argued that the physical condition of the Claimant should be taken into consideration when establishing the standard of care owed by the Respondent to the Claimant. The Claimant cited no authority for this proposition.

We find that the old legal maxim “the Defendants take the Plaintiffs as they find them,” applies to damages, and not the standard of care. We think that the State owed the same standard of reasonable care to this Claimant as it owed to the other people present on the premises on the day the accident occurred. Therefore, we enter this order reaffirming our earlier opinion finding for the Respondent and against the Claimant.


author: Dillard, J.

text:
    (No. 84-CC-0609
    Gregory Wiegers, individually, and Gregory Wiegers for the benefit of Boilermakers National Health & Welfare Fund, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 4, 1988.

    Carr, Korein, Schlichter, Kunin & Montroy, for Claimant.
    Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   Dillard, J.

This claim arose from an incident which occurred on March 23,1982, when a pickup truck operated by the Claimant was struck in the rear by a vehicle that had been struck by a State road grader operated by the Respondent’s agent. Claimant seeks judgment under section 8(d) of the Court of Claims Act for injuries sustained by him “due to negligence in the care and operation of a motor vehicle” owned and controlled by the Respondent. Ill. Rev. Stat. 1985, ch. 37, par. 439.8(d).

FACTS

The facts which bear upon the question of Respondent’s liability in this case are not in substantial dispute. Respondent’s agent was driving a small road grader on Route 111 in St. Clair County approaching its intersection with Route 40. As the road grader approached the intersection, the stoplight facing the road grader was red. Vehicles were stopped in front of the road grader for the red light. Respondent’s agent applied his brakes to bring the road grader to a stop. The brakes on the road grader failed. The road grader struck a car stopped for the red light and pushed that car into the rear of the pickup truck operated by Claimant. Claimant’s truck was damaged and a repair estimate for $191.00 was attached as exhibit “B” to Claimant’s complaint. Additionally, Claimant alleged damages for “substantial injuries sustained by Claimant.” Respondent admitted that Claimant was free from any contributory negligence.

Claimant asserts the liability of Respondent under the doctrine of res ipsa loquitur since the road grader was under the exclusive management of Respondent and that the collision would not have happened had Respondent taken proper care. Claimant argues that the accident itself is evidence of a lack of due care and creates a presumption of negligence which must be rebutted or overcome by the Respondent.

Respondent contends that it was not negligent and that the doctrine of res ipsa loquitur does not apply to the facts in the case at bar. Respondent argues that the accident was unavoidable and that the Respondent had no reason to suspect that the brakes on its vehicle would fail. Respondent asserts that there was no evidence that Respondent’s driver was negligent or could have avoided the impact which is claimed to have caused Claimant’s damages. Respondent asserts that there is no evidence the State had noticed that the brakes were faulty, or had not been inspected or that the defect in the brakes would have been discovered on inspection. Respondent reasons that the doctrine should not be applied in this case because “in the ordinary course of things, and even when proper care is exercised, mechanical failures, and specifically vehicle brakes failures, do sometimes occur.”

Furthermore, Respondent points to the fact that the road grader had, on the day of the accident, been operated safely for seven hours prior to the accident without incident. Respondent indicates that although their agent was initially suspended from his employment due to the accident, the agent was reinstated when the brakes on the vehicle failed a second time on a later occasion. Respondent urges this Court to assume that such reinstatement would not have occurred unless it had been determined that the condition causing the brake failure was latent and could be found only with extraordinary examination or became apparent only after the condition worsened. From these premises, the Respondent argues that the mechanical problem which apparently caused the brake failure “simply could not be detected, so Respondent had no duty to correct it.”

LAW

In City of St. Louis v. State (1964), 24 Ill. Ct. Cl. 477, a mechanical failure in an Illinois National Guard aircraft fighter plane preceded an emergency landing at St. Louis Municipal Airport by Respondent’s pilot. Damage was caused to airport equipment. This Court in an opinion authored by Perlin, C.J., stated as follows:

“Claimant urges that the doctrine of res ipsa loquitur be applied in the instant case. The Court of Claims has recognized this doctrine as follows: When an injury is caused by an instrumentality under the exclusive control of the party charged with negligence, and is such as would not ordinarily happen if the party having control of the instrumentality had used proper care, an inference or presumption of negligence arises. The burden then rests upon Respondent to rebut the presumption of negligence arising from the facts of the case.”

Thus, the Court held that since the airplane which caused the damage was under the sole management and control of Respondent, it was permissible to assume that the accident would not have occurred if proper care had been used. Also, the Court indicated that Respondent offered no evidence to rebut the presumption of negligence which arose under the facts and an award was granted. The holding in City of St. Louis has been subsequently cited with approval in Rivoltorto v. State (1971), 27 Ill. Ct. Cl. 210.

In People v. Morris (1978), 60 Ill. App. 3d 1003, 377 N.E.2d 210, the defendant’s vehicle went off the road and hit a light pole. The State of Illinois sued the motorist for damage to the pole. In discussing the doctrine of res ipsa loquitur, the Appellate Court of Illinois for the First District set forth the following:

“The purpose of the doctrine is to allow proof of evidence circumstantially when direct evidence concerning the cause of injury is primarily within defendant’s knowledge and control (citation). To invoke the doctrine and raise the presumption of negligence, plaintiff must establish that the accident itself affords reasonable evidence that it would not have ordinarily occurred in the absence of someone’s negligence; that the instrumentality which caused the injury is within the exclusive control of defendant; and that plaintiff was free from contributory negligence (citations) and it is now well established that plaintiff may proceed on alternative theories of res ipsa loquitur and specific negligence (citations).
Here, we believe that the requirements necessary to create a presumption of negligence in res ipsa loquitur are present. First, an automobile collision with a stationary object does not ordinarily happen in the absence of negligence and the doctrine of res ipsa loquitur has been applied in such cases. (Citations.) Second, defendant’s exclusive control was established by her admission in her answer that she was the owner and operator of the car which struck the light pole and from her testimony at trial to that same effect. Third, as stated above, the record establishes that plaintiff was free from contributory negligence.” Supra.

We agree with Respondent that it is possible for mechanical failures to occur in the road grader even when proper care is exercised and in a totally unforeseen manner. However, if evidence was available to Respondent that such proper care had been utilized with respect to the maintenance of the road grader and brakes, such evidence was not produced on the record. This Court will not speculate as to the availability of such evidence when the record is barren of any proof concerning the care of the vehicle or the nature of the defect which apparently caused the brakes on Respondent’s road grader to fail. Finally, Respondent’s reinstatement of its agent does not lead us to the conclusion, urged by Respondent, “that ordinary inspection did not reveal the cause of the brake failure, but that it was later found by some more extraordinary examination, or perhaps became apparent only after worsening.”

Accordingly, the doctrine of res ipsa loquitur is applicable in the case at bar. Respondent’s failure to come forward with proof of the exercise of due care in the maintenance or inspection of its vehicles leaves the presumption of negligence created by the doctrine unrebutted. Therefore, Respondent is liable to Claimant for such damages as have been properly shown by the evidence.

DAMAGES

Respondent seeks damages for his injuries and the damage to his motor vehicle in his verified complaint; however, Claimant’s brief is predicated only by a claim for recovery of $85,000.00 “for injuries.”

Claimant testified that at the time of the accident he was jerked forward and back and noticed pain in his shoulder, chest and neck. He did not go to work and returned home where he called his doctor and then proceeded to the doctor’s office. Claimant’s doctor admitted him to the hospital in Belleville, where he remained for 12 days. Claimant testified that he received treatment consisting of physical therapy, hot packs, ultrasound and diathermy, medication and bedrest. Claimant said that at the conclusion of 12 days he was not feeling any better. Claimant testified that the wearing of necessary protective apparel in his work as a boilermaker causes him problems. The weight of the welding hood and hardhat creates pressure on his neck which causes pain and aggravation. Claimant was also treated by Dr. Max Goldenberg commencing in September 1982.

Goldenberg’s working diagnosis was soft tissue injury of Claimant’s neck. Goldenberg treated the Claimant with diathermy, cervical traction and anti-inflammatory agents with pain relievers. Goldenberg testified that in his opinion Claimant’s sprain or strain of the cervical area would be permanent and that the Claimant would need medical care in the future. Goldenberg’s bill for services through March 2, 1984, was in the amount of $1,776.80.

At the time of Claimant’s injury, he was working as a journeyman boilermaker out of Boilermaker Lodge Local 363 and earning $17.05 per hour straight time and $25.58 per hour overtime. Claimant’s business agent testified that Claimant would have been called out on three jobs had he not been convalescing from injuries sustained in this accident. The jobs were at the Coffeen Power Plant, the Baldwin Power Plant, and the Monsanto Chemical Plant. For this loss, Claimant claims $10,531.00. After the hearing in this cause, Boilermaker’s insurance tendered to the Claimant its claim for a debt arising from the Boilermaker’s payment of medical expenses for Dr. Goldenberg. Respondent objects to joining the Boilermaker’s National Health & Welfare Fund as a party plaintiff under section 2 — 616 of the Code of Civil Procedure. (Ill. Rev. Stat., ch. 110, par. 2— 616.) However, this Court will allow and it is ordered that Claimant’s motion to amend to add the Boilermaker’s National Health & Welfare Fund as a party plaintiff, to the extent of their payment of Claimant’s medical bills ($693.66), is granted.

Accordingly, it is hereby ordered that judgment be and is hereby rendered that the Boilermaker’s National Health & Welfare Fund receive judgment in the amount of $693.66; and that Claimant receive total judgment of $19,788.28 for injuries sustained which includes lost wages, property damage to Claimant’s automobile and medical services for a total award to Claimant of $20,481.94.


text:
    (No. 84-CC-0675
    First National Bank of Skokie, a corporation, as Trustee under Trust No. 50266 T, and Richard Wanland, Wanland Realty, a corporation, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 20, 1987.

      Order on denial of rehearing filed December 15, 1987.

      Dreyer, Foote, Streit, Furgason & Slocum, P.A. (William J. Foote, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Jennifer Dover, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This dispute arises out of a lease between Claimants and the Department of Labor for premises at 10833 South Halsted, Chicago, Illinois.

On April 1,1981, the Claimants and the Respondent entered into a two-year written lease of space used for an unemployment office. Rent for the building was set at $5,400 per month. Additionally, the State was obligated to pay any amount of property taxes for the years 1982 and 1983 that exceeded the assessment for 1977 taxes ($3,970.27). These terms were identical to a five-year lease which terminated on March 31,1981.

Claimant wrote to Richard Sramek, of the Respondent’s Department of Administrative Services to remind him that the lease would expire, and to discuss terms for a new lease. Claimant requested an increase in the rent to $6,680.00 per month. After reviewing Claimant’s letter, the State began investigating alternative sites for the unemployment office prior to the expiration of the lease.

On March 10, 1983, the State forwarded to Claimants a proposed three-month extension of the lease for the months of April, May and June of 1983. Claimant rejected the three-month extension.

After the lease expired on March 31, 1983, the State began negotiating for a four-month “close-in” lease with Wanland. Meanwhile, the State sought alternative facilities while “negotiating” a new lease with Claimant.

On April 19, 1983, Claimant Wanland wrote again to Sramek. Attached to the letter of April 19, 1983, was a proposed five-year lease executed by the trustee, as lessor. The proposed lease did not contain a four-month “close-in” restriction, but rather a five-year “close-in” requirement.

The State rejected the proposed five-year lease. The State told Claimant that the building needed too many repairs for it to sign a five-year lease. In response to the State concern about the lease, Claimant offered to put thirty thousand dollars ($30,000.00) worth of repairs and improvements into the building with a rent increase of $942.50 per month.

On April 25, 1983, the State again refused to enter into a five-year lease. At no time during any of these discussions or negotiations did Claimant request that the State leave the premises. In response to Wanland’s letter, the State again offered a five-year lease with a four-month termination notice clause. Claimant insisted that no termination be allowed until after the five-year term. In mid-May, Claimant learned that the State was moving to a new location.

On May 23, 1983, Claimant served the State with a five-day notice for possession. One day after the notice expired, Claimant had the locks changed on the doors of the building. As a result, approximately 40 State employees and the general public were locked out of the unemployment office. The State alleges that employees’ salaries in the amount of $9,006.00 were lost as a result of the lockout, and that the public was greatly inconvenienced.

The State secured a temporary restraining order compelling Claimant to grant access to the office. The record is unclear as to whether Claimant refused to obey the court order or whether Claimant had sufficient time to comply. In any event, the State had the locks drilled at an expense of $148.00. Additional security guards had to be hired during this time period at the expense of $102.00. The total cost to the State as a result of the lockout was $9,256.00.

On June 3, 1983, the State moved out of the premises. And, on September 7,1983, the same premises were leased to Karin Sweis at $3,400 per month; two thousand dollars less than the State was required to pay and less than the new lease proposed by Claimant. As a lease concession, Claimant did not require that Sweis pay rent for the months of September, October, November or December of 1983.

The State concedes that it owes rent for April, May and June of 1983, as well as the real estate tax adjustment through that period. Three months rent totals $16,200.00. The tax adjustment provision of the lease provides that the State is responsible for the real estate taxes in excess of the 1977 tax bill of $3,970.27. For 1982, the tax excess is $12,198.31 ($16,168.58 minus $3,970.27) and for the first six (6) months of 1983 in the amount of $6,021.48 ($16,013.19 minus $3,970.27 equals $12,042.96 for all of 1983 — divided by two) for a total real estate tax adjustment of $18,219.79. Thus, the State concedes it owes a total of $34,419.79.

For the reasons set forth hereinafter, we determine that the extent of the State’s liability is $34,419.79.

The parties never reached agreement on a new lease. The facts in this case fall within the rule of Bismarck Hotel Co. v. Sutherland (1981), 92 Ill. App. 3d 167, 415 N.E.2d 517. Where the landlord informs the tenant that the landlord wants an increase in rent and in the terms of the lease, there is no holdover tenancy. Negotiations for new terms are inconsistent with an election to treat the tenant as a holdover.

Additionally, section 9 — 202 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 9 — 202), provides that a demand in writing for possession is necessary to create a holdover tenancy.

Accordingly, the State’s liability is limited to $34,419.79.

It is therefore ordered, adjudged and decreed that Claimant is awarded $34,419.79 in full and complete satisfaction of this claim.

ORDER ON DENIAL OF REHEARING

Raucci, J.

This cause coming on to be heard on the Claimant’s petition for rehearing, the Court being fully advised in the premises, it is hereby ordered that the petition for rehearing be, and it is hereby denied.


author: Patchett, J.

text:
    (No. 84-CC-1004
    Jimmie C. Peters, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 13, 1987.

    Jimmie C. Peters, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (G. Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This case arises out of a claim by an inmate with the Illinois Department of Corrections who brings suit against the State pursuant to section 8(d) of the Court of Claims Act. (Ill. Rev. Stat., ch. 37, par. 439.8(d).) The Claimant alleges that on January 21, 1983, while an inmate with the Department of Corrections, he was injured in his cell as a result of falling out of bed. He was found lying on the floor of the cell. The Claimant was taken to the health care unit by agents of the Department of Corrections. In the X-ray room of the health care unit, the Claimant was placed on the X-ray table. The facts of what happened next are very much in dispute. The Claimant and his witness claim that agents of the Department of Corrections pulled the Claimant off the table by his leg shackles. They further claim that he was beaten, stomped on, and physically abused.

Agents for the State of Illinois testified that at the time of the incident the Claimant was very belligerent and struck one of the officers in the back of the head. They claim that this striking was without provocation, and further, they testified that they wrestled the Claimant to the floor and handcuffed him. After doing so, they noticed a cut or injury on the Claimant’s toe, which they then reported to the medical technician.

This was all confirmed by the testimony of the X-ray technician. He testified that the Claimant was very hostile when he came in for the X rays, and otherwise his testimony was similar to that of the correctional officers.

The issues in this cause are not complex. The evidence offered by the Claimant and his witnesses is directly contradicted by testimony of two correctional officers and the X-ray technician. The Claimant and his witness differed on when the confrontation started. There were other discrepancies in their testimony. Basically, the testimony of the witnesses for the State was consistent.

Under the circumstances, we believe that the testimony of the correctional officers and the X-ray technician was more believable than that of the Claimant. Therefore, we find that the Claimant has not carried through his burden of proof, and for that reason we deny this claim.


author: Montana, C.J.

text:
    (No. 84-CC-1580
    Larry Carlson & Associates, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 17, 1988.

    Coyle, Gilman & Stengel (William R. Stengel, Jr., of counsel), for Claimant.

      Neil F. Hartigan, Attorney General (G. Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

The Claimant, Larry Carlson & Associates, Inc., filed its complaint in the Court of Claims alleging a breach of contract. Specifically, Claimant alleges the State entered into a contract with Walsh Construction Company of Illinois to do bridge repairs on a bridge at the Chicago Circle Interchange in Chicago, Illinois. Claimant subcontracted with Walsh Construction to furnish all labor, material, and equipment required to do certain bridge repairs according to the specifications. The subcontract provided Claimant would be paid $170.00 per cubic foot and the rate was determined by the contract specifications which specified epoxy materials which were trowelable in layers not to exceed one inch in total depth. Claimant also alleges that upon beginning work it became apparent that the specified epoxy products were not appropriate for the job and it was necessary to change epoxy materials. The new substance required forming rather than trowel application. The cost escalated to $525.73 per installed cubic foot. Claimant asserts it completed 484 cubic feet using the substituted epoxy material for a net charge of $172,173.32. The Illinois Department of Transportation (IDOT) refused payment. Later, Claimant was directed by IDOT to change to a non-epoxy pneumatically-applied material called Sikatop and it completed 187.1 cubic feet of this material for a net charge of $51,098.88. When Claimant sought payment, IDOT denied the claim. Claimant alleges that the substituted epoxy, Sikatop and labor were outside the contract and due to the error in contract specifications. Claimant further alleges a breach of IDOT’s implied warranty that the plans and specifications furnished Claimant would enable it to do the work with the required materials. Walsh Construction Company assigned its cause of action to Claimant who now seeks a total of $223,272.20. This was in settlement of a lawsuit wherein Claimant sued Walsh.

A trial was held in this cause before Commissioner Robert Frederick. The Claimant presented evidence, but the State chose to rest without presenting any testimony. The evidence presented was the testimony of C. Stanton Fowler, Claimant’s exhibits B (attached to Claimant’s complaint), 1, 2, 3, 4, 5a, 5b, 6, 7, 8a, 8b, 8c, 8d, 9, 10a, 10b, 10c, lOd, 11, 12, 13, and Respondent’s exhibits 1 and 2. Claimant’s exhibits B, 1, 2, 3, 4, 5a, 5b, 6, 9, 11, and 12 were admitted. Exhibit 13 was refused. Exhibit 7 was taken under advisement. Exhibits 8a, 8b, 8c, 8d, 10a, 10b, 10c, and lOd were admitted for the limited purposes stated in the record. Respondent’s exhibit 1, the last two pages only, and Respondent’s exhibit 2 were admitted. The Commissioner requested that the entire contract be placed in evidence and both parties agreed. The issues have been fully briefed by the parties and the Commissioner has duly filed his report.

The parties stipulated that the Claimant installed 484 cubic feet of the substituted epoxy material and 187.1 of Sikatop material as pleaded in Claimant’s complaint. Foundations for admissibility of letters and literature from material suppliers were waived. The parties further stipulated that foundations for the tabulations concerning proof of damages relative to material supplied, labor costs, the raw data for the material supplied, and time records would be waived. The raw data reflected in the calculations, being Claimant’s exhibits 1 and 2, are accurate tabulations of the data from the payroll expenses and labor records of Claimant. Lastly, the parties stipulated that the job specifications at issue are those reflected in Claimant’s exhibit B which was attached to Claimant’s complaint.

C. Stanton Fowler testified for Claimant. He was employed by Claimant in 1980 at the time of the project at issue. He had started working in the epoxy repair industry in 1976. On the job at issue, he was responsible for evaluating the job, bidding on the job, and for execution of the work.

Mr. Fowler testified that epoxy is a very strong substance that is used with aggregate to reinforce deteriorating concrete. Some epoxies are used to protect concrete from further deterioration and others try to make it compatible with the concrete. Epoxy in its gel form generates its own heat. The heat is dissipated by having it absorbed into the concrete or into aggregate which is mixed in with it.

Mr. Fowler had worked on other various projects where he used epoxy materials. He was familiar with epoxy materials in the industry and had reviewed literature and had epoxy materials demonstrated by salespeople. He was familiar with the specifications for the instant project as set forth in exhibit B. The specifications listed a Colma-Dur Gel manufactured by the Sika Chemical Corporation and he was familiar with this material as he had seen it demonstrated and had used the product on a project. He was familiar with Ex-60 Hydro-Ester Low Modules Trowel manufactured by Fox Industries, Inc., which was also listed in the specifications. He also was familiar with the third product on the specification list, that being Duralith Gel manufactured by Dural International Corporation.

Each of the three listed products is a gel and very obviously trowelable. They are designed for an in-depth repair and can be put in at layers not to exceed one inch. The products are gummy and very sticky so they can be applied overhead. They stick and can be spread with a trowel. No forms need to be built to hold the substance.

After the Claimant became aware of this job through a job bulletin, Mr. Fowler reviewed the job specifications, and inspected the work area. He and his foreman personally inspected the bridge where the work was to be done. There were spots of rust where wire was too close to the surface of the concrete. As rust occurs, the concrete, due to weather, expands and breaks. The surfaces did look reasonably sound and smooth; however there were some chipped-out areas. In their opinion, there would be a minimal amount of concrete removal which would dovetail right into the product specifications and which would correlate to the depths for those allowable for Colma-Dur Gel or the Duralith. The Claimant had no reason to question the job specifications at the time of bidding, and it had had a similar job in Iowa on a bridge a month before where the same type of application that was intended to be used on this job was used. The three products specified could only be used within a very shallow depth and appeared to be correct for this job based on their inspection.

Claimant prepared a bid and it was based on the use of a specific family of epoxies and the labor and concrete removal required to apply it. This was a per unit contract.

After reviewing the job Claimant ordered epoxy. It was under a requirement to submit the product specifications from the manufacturer to the owner, IDOT. Claimant purchased Nilkepoxy No. 26 manufactured by Rocky Mountain Chemical Company, and this product was approved. It is the same type of epoxy as the other listed ones. Exhibit 4 is the specification sheet for Nilkepoxy No. 26. Exhibits 4, 5, and 5b are specification sheets for Nilkepoxy No. 26 and Sika Colma-Dur Gel. They appear to have very similar specifications and all fall well within the requirements of exhibit B.

Claimant gave exhibit 4, the specification sheet, to the Respondent and the product was approved for use. All the products were non-sag which means they can be troweled overhead without falling out of place. The specifications in exhibit 5a limit the thickness of the Sika Colma-Dur Gel to 50 mils when used as an adhesive. Mr. Fowler believed 50 mils to be somewhere between 1/8 inch to an inch. Based on his experience he testified that if the substance was applied in a thickness in excess of an inch it would crack and shatter due to the heat it would generate and would not adhere to the surface it was applied to. If you tried to fill a 4-inch hole with 8 half-inch applications, that also would fail as the product becomes impervious like a sheet of glass after it hardens and it would come apart. Neither Nilkepoxy 26 nor Sika Colma-Dur Gel can be used in layers beyond one inch and only then if the application is made before the material becomes impervious. Exhibit 6 is Claimant’s estimate for the job based on past experience, a review of the specifications, and an on-site inspection. Claimant figured the amount of work its work force could do using the required materials. Because the epoxy was trowelable, it could be applied at a very fast pace so the amount of men and the time involved would be low. Claimant expected to be on the job 14 weeks.

Upon commencing the job, Claimant learned that the concrete removal was a lot deeper than they expected. The State’s consulting engineers were advised of the problem and they instructed Claimant to remove the concrete. In most cases it was four to five inches inside the concrete pier. The State’s engineers determined how much concrete was to be removed. There was nothing in the blueprints that indicated the depth of these piers. After several weeks on the job and finding the depth of the concrete to be removed was four to five inches, Mr. Fowler had a conversation with Mr. Crossman, a representative engineer from the Department of Transportation in Schaumburg. Claimant had requested a meeting with the consulting engineers, Envirodyne, and State engineers to look at the depths of demolition as the product they had to use to repair the structures would fail. Mr. Crossman indicated to Mr. Fowler that if the depth continued they would sit down and resolve the problem. Mr. Fowler told Mr. Crossman that a different method for installing epoxy would have to be used. Forms would have to be built and labor and material costs would be far greater than expected. He stated that the specified product would fall out as soon as it got cold in the winter.

Mr. Crossman instructed Claimant to submit in conjunction with the consulting engineers another product for approval. They submitted another product for approval, Nilkepoxy No. 4, which was approved. This product must be formed because it has an oatmeal-type consistency.

The Claimant incurred substantial extra expense for labor and equipment to build the forms and do the work using Nilkepoxy No. 4. Four laborers were generally needed for this form method where only one would be used for the trowel method. The cost per cubic foot of material installed increased tremendously.

The parties stipulated, however, that Claimant did request a change order for the scope of the work and the change order was not approved by IDOT.

Claimant, in April of 1982, sent purchase orders to the manufacturers of the originally specified products, Sika Colma-Dur Gel, Ex-60 Hydro-Ester Low Modules Trowel, Duralith Gel and Nilkepoxy No. 26 requesting certification for use of their products for the purposes of the State on this project. See exhibits 8a, 8b, 8c, and 8d. They all categorically refused to so certify the product. This was done by Claimant because at a meeting with IDOT in April of 1982, IDOT requested proof that the products specified in the contract would not work. Exhibits 10a, 10b, 10c, and lOd are the companies’ refusals to certify the products.

Claimant proceeded to use the substituted Nilkepoxy No. 4 for 484 cubic feet. The contract price was $522.73 per cubic foot. The cost of installation over the original contract price was $172,173.00.

Another meeting was held and the engineers and IDOT approved the use of a material called Sikatop. They applied 187 cubic feet. A large compressor and more labor was required to apply Sikatop. The cost to apply per cubic foot was $273.11. The increased cost over the original contract was therefore $51,088.91. The State told Claimant to use the Sikatop on the remaining cubic feet. The total cubic feet was 660. They used Nilkepoxy No. 4 on 480 cubic feet and Sikatop on 180 cubic feet. Sikatop was cheaper than the forming method. It was applied with a pneumatic gunnite machine. Sikatop is not an epoxy material so in effect the State removed their requirement of an epoxy material. The job went from April of 1981 to December of 1982 rather than the 14 weeks originally scheduled due to the changes in the materials and the scope of the job. On cross-examination, Mr. Fowler indicated that he inspected the site prior to bidding by looking at the underside of the overpasses and piers, touched them, and tried to sound them with a rock on the ones that could be reached. He indicated there was a problem in that you could not tell how deep the patches would be because the surface was flush and there was no way of telling unless it was completely removed. He testified that while you could not tell how much concrete would have to be removed by looking at the bridge, the specifications for the materials told him the maximum depth.

The issue before the Court is whether the bid of Claimant was just a bad bid or whether Claimant was a victim of a material misrepresentation in the plans and specifications prepared by the State.

Exhibit B states the applicable job specifications. “This work shall consist of the furnishing of all material, labor, and equipment to remove and dispose deteriorated concrete, replacing it with an epoxy mortar and all other incidental and collateral work at those locations shown on the plans and as directed by the engineer.” Preparation of the areas to secure the epoxy mortar was also included in the work. All loose concrete was to be removed and then cleaned. The sound concrete was to be scrubbed with epoxy binder (without aggregate) just prior to the placement of the epoxy mortar. “The epoxy mortar shall be suitable for placement in vertical and overhead positions. It shall be capable of bonding to damp concrete surfaces * # Epoxy mortars designated as meeting these requirements and acceptable are Colma-Dur Gel by Sika Chemical Corporation, Ex-60 Hydro-Ester Low Modules Trowel by Fox Industries or Duralith Gel by Dural International Corp. Other products meeting the requirements could be approved. The work was to be paid for at the contract unit price per cubic foot for epoxy mortar repair.

The manufacturers’ specifications sheets for Nilkepoxy No. 26, Colma-Dur Gel and for Duralith Gel do not limit the product to one-inch patches or less. However, the witness presented by Claimant testified to his experiences with these epoxies and testified that they could not be used for the repairs herein once the depth of the repair was determined to be four to five inches. The State chose to present no expert witnesses. The facts indicated that the original trowel-type epoxy could not do this job and mortar installed by use of forms was required. The Court must decide if this change constituted such an increase in the quantity of the work to be performed of such magnitude as to constitute a substantial or material variation in the original contract. To determine this question requires a determination of what the original contract was. Claimant has proved by a preponderance of the evidence that the original contract was a contract to repair the bridge using a trowel-type method. The State’s engineer’s admissions and the change in product indicate the substantial and material change in the original contract.

The specifications of the three trowel-type epoxies indicated to Claimant that the work was such that the trowel method was to be used. Claimant’s bid was based on the trowel method. It was only when actual work began that it was discovered that the trowel method could not be used. There was therefore a patent ambiguity in the specifications. This Court has granted an award to a contractor for damages caused by mistake or ambiguity in the State architect’s plans. (Galesburg Construction Co. v. State (1978), 32 Ill. Ct. Cl. 500). The State argues Claimant should have known the scope of the work, yet the State presented no evidence to indicate that the visual examination of the bridge was negligent or that in the industry it is customary to do a greater inspection. This is important in that the State set the specifications for the epoxies to be used and such specifications in exhibit B were more than mere suggestions as the State argues. The State needed to prove by expert testimony that the specifications clearly showed this work was included in the original bid. It chose not to.

The Respondent objected to admitting Claimant’s exhibit 7, an internal memorandum of IDOT. It is the Court’s determination that exhibit 7 should be admitted into evidence. The trial in this cause was a search for the truth. The Respondent has admitted the genuineness of exhibit 7. This exhibit is an admission and thus corroborates the Claimant’s position that the specifications were contradictory. The exhibit also indicates that in vertical and overhead repairs, form work is required.

The Commissioner requested the whole contract be placed in evidence. Both parties agreed to do this. The contract is informative in deciding the case. In temporary bridge deck repairs (contract pages 72 M, N, O), a distinction is made in the removal of concrete of less than 3% inches depth and more than 3/2 inches depth. In deck slab repairs in the U.S. Post Office on page 72T of the contract, epoxy mortar repair is limited in No. 2 to where the depth of the unsound concrete in the bottom of the slab (the top of the slab being sound) does not exceed 3% inches. The unsound concrete removed by Claimant was four to five inches. It is clear that while no one knew the actual depth of the unsound concrete prior to commencing work, the actual depth required to be removed and the change in material and application constituted a material misrepresentation in the plans.

It is Respondent’s position that the original specifications of materials with their accompanying specification sheets were sufficiently clear and the contractor should be bound by its original bid. The evidence is anything but clear to the Court. Respondent should have presented evidence, if it had evidence, to show the specifications were clear. It did not. The Claimant presented evidence to show the specifications were anything but clear. The State’s own contract showed a 3% inch limit in epoxy mortar repairs in another section of the contract. The Court believes the Claimant has proven a material misrepresentation which led to extra work.

We find that the Claimant did not simply make a bad bid in this case. The Respondent impliedly warranted that the work on this project could be performed according to the plans and specifications, that the specifications were adequate for performance of the job, and were free of material defects. The only evidence before this Court is that the specified materials were not adequate for the project. The actions of the Respondent in evidence are admissions that the materials were inadequate. The Respondent directed the Claimant to use the other materials which could not be applied in the same manner as those originally specified.

Claimant has shown damages of $172,173.32 on one portion of the project and $51,098.88 on another. It is hereby ordered that the Claimant is awarded the sum of $223,272.20 in full and final satisfaction of this claim.


author: Sommer, J.

text:
    (No. 84-CC-1645
    John Connors, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 25, 1988.

    Grey Chatham, for Claimant.
    Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

This is a claim for personal injuries pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(d)). The Claimant alleges that he was injured as a result of the negligence of the State’s employees on July 30,1983, when he slipped and fell on wet terrazzo tile on the floor just outside the shower area in one of the housing units at the Vandalia Correctional Center.

The Claimant was an inmate at Vandalia. He was housed in a dormitory, the interior of which is an open facility with the shower area at one end. The shower area is enclosed by a half wall approximately 4 feet high with an open entrance in the middle. There are two steps up to the entrance to the shower area off the floor of the rest of the dormitory. The walls and floor of the shower area are tile, and the floor of the dormitory is terrazzo tile.

Michael Baker, the assistant warden at Vandalia, was called to testify by the Claimant as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1102). Baker testified he knew from experience that terrazzo tile becomes slippery when wet. There had been complaints from inmates and from guards that the terrazzo tile floor outside the shower room entrance on the dormitory floor became slippery as a result of water accumulating there. In order to try to correct this problem, the State in April 1983, caused the placement of non-skid pads onto the tile dormitory floor outside the shower room entrance. Baker specifically testified that the purpose for which the pads were placed was to make safe that area of the floor which became wet when men tracked water onto the terrazzo tile floor after showering.

The pads are approximately 24" by 6" and adhere to the tile floor. The exposed face of the pad is black and is covered with a dull sandpaper-like finish. Two rows of three pads in each row were placed on the tile floor directly in front of the steps into the shower area. This effectively covered an area of approximately three feet by four feet of the floor.

Baker also testified that there are no rules in the facility that the men must dry off in the shower area or on the non-skid pad.

Eddie Oldham, the chief engineer at Vandalia, was also called by Claimant as an adverse witness. He testified that there are terrazzo tile floors throughout the dormitory. The only floor drains are in the shower area itself and in the separate lavatory area. He further testified that he has personal knowledge that the inmates dry off after their showers outside the actual shower area. They stand sometimes on the non-skid pads and sometimes on the tile floor to the side of the skid pads, next to the half wall which separates the shower area from the rest of the dormitory.

On July 30,1983, during the afternoon, the Claimant had been exercising in the yard. After completing his exercises, he went into the dormitory to clean up. Since the showers were all being used, he had to wait near the entrance to the shower area. When he finished showering, he towelled off in the center of the shower area. He then stepped out of the shower area onto the non-skid pads to complete drying off. As he started to walk back to his bunk, he stepped off the pads onto the tile floor. His right foot slipped on the tile, and he fell onto his back, landing primarily on his upper back and neck. He went to the health care unit in the Vandalia facility for initial treatment.

On July 31, the day after his fall, the Claimant contacted the health care unit to complain about difficulty breathing when lying down. That afternoon the dorm officer called the health care unit to ask for a cervical collar for the Claimant, as the Claimant was in severe pain. The Claimant was taken to the unit to be fitted. When he raised his head so that the collar could be applied, he cried out in pain. The medical personnel at Vandalia therefore admitted him to St. Mary’s Hospital in Centraba, Illinois, for X rays.

On August 2, 1983, the Claimant was transferred to St. Elizabeth’s Hospital in Belleville, where he came under the care of Dr. William Sprich, a neurosurgeon. Dr. Sprich diagnosed broken ligaments between the 5th and 6th cervical vertebrae. On August 5, Dr. Sprich performed surgery on Claimant’s cervical spine. The surgical procedure entailed wrapping of stainless steel wire around the vertebral levels above, at and below the fracture dislocation in order to properly align the cervical spine. This resulted in a surgical scar on the base of the back of Claimant’s neck approximately eight inches long.

The Claimant was discharged from the hospital on August 10, 1983, and returned to Vandalia. Dr. Sprich saw the Claimant three times thereafter for fobow-up, the last time being on January 30, 1984. The Claimant continued to complain of pain with muscle spasms during this time. Dr. Sprich therefore advised the Claimant, who was about to be released from the Department of Corrections, that the Claimant would need some additional rehabilitation and physical therapy. Dr. Sprich referred the Claimant to a physician in the Chicago area, where the Claimant returned to bve after his release. The Claimant failed to contact this physician for any additional care, but he did seek one therapy treatment from a chiropractor. Dr. Sprich testified that the Claimant will have some future problems caused by the nature of the injury, the formation of scar tissue and the permanent placement of the surgical wires. These problems would probably consist of degenerative changes in the neck, neck spasms and stiffness of the neck. The Claimant may also need additional surgery in the future to alleviate such symptoms.

The Claimant was released from incarceration on February 3,1984. He has worked intermittently about 30 days since that time through September 1986. He complains that his neck and upper back are in constant pain, which at times is more severe and spreads into his shoulders. He has lost part of the full turning motion of his neck, so that he must turn his whole body in order to turn his head from side to side. He does not take any prescription medications for the pain.

The total amount of expenses for the Claimant’s medical care outside the Vandalia facility was paid by the State. The amount of the expenses was not offered into evidence. In addition, the Claimant has received $491.03 in Illinois Public Aid medical benefits since his release from incarceration for treatment for a fractured nose in March 1986.

This Court has held repeatedly that the State of Illinois owes a duty to inmates of penal institutions to provide reasonably safe conditions. Reddock v. State (1978), 32 Ill. Ct. Cl. 611.

Surfaces such as terrazzo in shower rooms, dormitories, public buildings, etc., are necessary so that the premises can be cleaned and made sanitary. The smooth finish of such surfaces allows for cleaning, but also makes the materials slippery at times. Persons controlling and using such surfaces know the nature of them and must conduct themselves accordingly. Therefore, falls on such surfaces are often not compensable, absent aggravating circumstances.

In the case before us, testimony establishes that complaints were raised by inmates and guards indicating anxiety over conditions in the area of the steps and in front of the low wall. The Claimant testified that he had slipped and fallen a number of times and had observed others slipping and falling. The prison authorities, to their credit, responded. Non-skid pads were placed on the steps and in front of them, but in a small area, not covering the entire wet area.

This Court finds that the site of the accident differs from a normal terrazzo floor on which a slip and fall has occurred. There was an accumulation of water, no hand holds, a history of slips and falls, concern expressed by the inmates to the guards and by the guards to the prison authorities, and action taken by the prison authorities. The action of the prison authorities in placing the nonskid pads was excellent as far as it went, but it did leave some of the wet area unaddressed. Because of the history of the site and because all that could have been done easily, or without burden, was not done, this Court finds the State breached its duty to maintain reasonably safe conditions.

However, users are to conduct themselves with awareness of conditions where terrazzo or other smooth surfaced floors are encountered. The Claimant testified that he was aware of the slippery conditions and yet stepped off the protected area. The Court finds that the Claimant is chargeable with contributory negligence to 50% of the total fault.

The evidence supports a finding that the Claimant suffered a permanent injury to his neck, which is wired in place. The Claimant suffers limitation in the movement of his neck, and suffers from some dull aches and pains in the neck. The Claimant has not sought a great deal of medical attention, which fact is consistent with a finding that the Claimant’s discomfort is presently at a relatively low level. However, natural changes may occur as a result of the injury and implantation of a foreign object into the body. The Claimant may experience greater discomfort and may need an additional operation in future years. His life expectancy is 35 years.

Additionally, this Court finds that the Claimant has a permanent scar, but it is not disfiguring.

The effect of the Claimant’s injury on his earning capacity is difficult to measure, as his work history as a roofer has been intermittent, and no evidence was presented as to what the Claimant could earn as a roofer if employed.

Therefore, this Court finds that the Claimant is entitled to an award of $40,000, which should be reduced by $2,190.00 for what the State has already paid the Claimant for Dr. Sprich, leaving $37,810.00. Since the Claimant is responsible for 50% of the total negligence, his award should be $18,905.00. Out of this award, the amount of $491.03 paid by the Department of Public Aid for treatment of a subsequent injury should be reimbursed to the Department pursuant to section 11 — 22 of the Public Aid Code (Ill. Rev. Stat. 1985, ch. 23, par. 11 — 22).

Therefore, the sum of $18,413.97 should be paid to the Claimant and his attorney, and the sum of $491.03 should be paid to the Department of Public Aid.


text:
    (No. 84-CC-2104
    Townsend Jackson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 9, 1988.

    Townsend Jackson, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (G. Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

Townsend Jackson was a resident of the Menard Correctional Center on October 28, 1983. At that time, he was working in the tailor shop. At approximately 8:00 a.m., he was summoned by the supervisor, Mr. Herschbauh, and requested to lift a heavy industrial shop fan. He was directed to place the fan on top of a cupboard. To accomplish this purpose, a cart with rollers on it was used as a platform while two other inmates were charged with the responsibility of keeping the cart steady. When the Claimant lifted the fan, the cart was not secured, and it moved. This caused the fan to fall on the Claimant, which in turn caused a severe gash to the back of his head.

A hearing was held on this claim on August 18,1987, at the East Moline Correctional Center. Notice was given to both parties. The Claimant appeared and testified, but no one appeared on behalf of the State.

It is apparent from the testimony at the hearing on this matter that the State was negligent in having a person perform the task requested with the equipment and help provided. We so hold.

The Claimant testified that as a result of his accident, he has had recurring headaches. He further states that he was having back problems, but he did not know if they were related to the accident. There was some scarring, but it was not particularly noticeable. The scar was located at the back of the head and was covered by the Claimant’s hair. Although the Claimant testified that he feared this accident would affect his ability to return to the job he had prior to being incarcerated, there was no additional evidence submitted on this matter. There was no medical history or records submitted by the Claimant to substantiate a causal connection between the injury and his potential inability to return to his former occupation. We therefore hold that this item of damages would be too speculative to substantiate an award. However, the Claimant was clearly injured due to the negligence of the State. We therefore award the Claimant the sum of three thousand dollars ($3,000.00) for his pain and suffering.


author: Dillard, J. Dillard, J.

text:
    (No. 84-CC-2506
    Sidney E. Berger, Claimant, v. Board of Trustees of the University of Illinois, Respondent.

      Opinion filed January 4, 1988.

      Order on denial of rehearing filed April 28, 1988.

    Dobbins, Fraker, Tennant, Joy & Perlsted (John B. Hensley, of Counsel), for Claimant.

      Franklin, Flynn & Palmer, for Respondent.
   OPINION

Dillard, J.

The Claimant, Sidney E. Berger, filed his complaint against the University of Illinois on March 19, 1984. His claim is that on October 6, 1983, at approximately 3:10 p.m., he was a paying guest of a member, playing ping pong at the Intramural Physical Education (IMPE) Building on the Champaign-Urbana campus of the University of Illinois. While he played the game, he alleged he went for a ball and stepped onto the overhang of a net which hung from the ceiling of the building. The net caused him to fall to the floor and sustain serious bodily injury. He claimed the State was negligent for having allowed the net to rest on the floor and extend a foot or more into the area of play surrounding the ping pong table. He averred the Respondent was negligent in that the State failed to warn him of the alleged foreseeably dangerous condition.

A trial was held before the Commissioner on August 12, 1986. The evidence consisted of the transcript of evidence, the evidence deposition of James P. Davis, Claimant’s exhibits one through six, and Respondent’s exhibits one through seven. The cause has been fully briefed by both parties and oral argument was held on November 10,1987, before the full Court.

Relevant Facts

Claimant regularly played ping pong and swam (at least 10 to 15 times) in the IMPE building of the University of Illinois. On October 6, 1983, a friend bought Claimant a ticket to get into the building. Claimant and friend were the only persons in the ping pong room at the time of the injury.

There was a rope net behind Claimant about five feet away while he played. The floor was made of linoleum tiles and was clean and dry. The games were not competitive and they played mainly for the fellowship. They never played hard enough to break a sweat. Claimant testified he had never taken any particular note of the net behind him and did not know if he had moved it that day. On prior occasions, he recalled the net may have been pulled aside and he may have pulled it on some prior occasion. He did not remember if he pulled the net on the date of the injury.

On the accident date, he was playing the game, he stepped back to get a shot, and fell down. He recalled very few details of the shot preceding the fall or the actual fall. He did remember that his right foot stepped down on the net and that he fell very powerfully.

Mr. Craig Stinson testified that he was the assistant director of campus recreation for the University of Illinois on October 6,1983. The University of Illinois was responsible for the operation and maintenance of the IMPE building. The ping pong area was set up so that the playing ends of adjacent ping pong tables were separated from one another by nets that hung from the ceiling on rails. The nets had been hung this way since 1971 and as depicted in the photographs in evidence. There had been in October of 1983 and since 1971, an excess of netting on the floor. The University did have a man responsible for repairing the nets. The purpose of the nets was to keep other ping pong balls from other tables from dangerously coming into adjacent play areas. The nets were white and the floor was black. The room is well lit.

Craig Stinson further testified that he received a phone call from the Claimant on October 7, 1983, at about 3:30 p.m. reporting the injury from October 6, 1983. Mr. Stinson could not recall Claimant making any reference to a shoulder injury when he reported the incident and had marked right knee, hip and elbow on the injury report. Claimant had indicated the severity of the injury was “moderate” on October 7,1983. No report was made by Claimant on the date of the injury even though five or six employees were on duty that day.

The employee of Respondent had also reviewed all of the records of injury at the IMPE building and there was no record of any similar injury to that of Claimant. He did not believe the nets posed a hazardous condition or posed a hazard for those people who played ping pong.

The Law

Claimant and Respondent spend a great portion of their respective briefs debating whether Claimant was an invitee or a licensee. It is clear from the evidence that Claimant was an invitee for whom a duty of reasonable care for his safety was owed by Respondent to Claimant. (Talbott v. State (1983), 35 Ill. Ct. Cl. 885; Nolan v. State (1983), 36 Ill. Ct. Cl. 194.) The State of Illinois is not an insurer of the safety of persons visiting its recreation areas but rather such visitors are owed a duty of reasonable care in maintaining the premises. Heiman v. State (1977), 32 Ill. Ct. Cl. 111.

The Court of Claims has often laid down the rule that the Claimant bears the burden of establishing by a preponderance of the evidence that Respondent breached its duty of reasonable care, that Claimant was free of contributory negligence, that the negligence of Respondent proximately caused the injury, and that the State had actual or constructive notice of the dangerous condition from all the circumstances in the case. Rossett v. State (1985), 37 Ill. Ct. Cl. 118; Talbott v. State (1983), 35 Ill. Ct. Cl. 885; Hitt v. State (1982), 35 Ill. Ct. Cl. 798; Claycomb v. State (1981), 35 Ill. Ct. Cl. 200; Nolan v. State (1983), 36 Ill. Ct. Cl. 194.

There is no evidence presented to this Court that the State had actual or constructive notice that the hanging nets constituted a dangerous and unusual condition for which the State had a duty to warn invitees and protect them from harm. This was the first accident of this type since the nets were hung in 1971. Becker v. State (1983), 35 Ill. Ct. Cl. 704; Boaz v. State (1982), 35 Ill. Ct. Cl. 594; Nolan v. State (1983), 36 Ill. Ct. Cl. 194.

Ping pong is not a dangerous sport, especially when played by noncompetitive people who have played in the same room 10 to 15 times before. No one else was in the room with Claimant and the friend. They had to have seen the white nets against the black tile floor. This was not a dangerous condition. Rossett v. State (1985), 37 Ill. Ct. Cl. 118; Marquis v. State (1985), 37 Ill. Ct. Cl. 221; Nolan v. State (1983), 36 Ill. Ct. Cl. 194.

The record in this case is completely devoid of any actual or constructive notice of any defect in the area where the accident took place. This Court has held on many occasions that before recovery can be had, Claimant must prove the State had actual or constructive notice of a defect. In this case, the Claimant has not proved a dangerous condition existed or that the State had knowledge or should have known of a dangerous condition in the ping pong nets, particularly since there had been no previous accidents involving the nets though they had been in existence many years. Nolan v. State (1983), 36 Ill. Ct. Cl. 194; Sewell v. The Board of Trustees of Southern Illinois University (1979), 32 Ill. Ct. Cl. 430.

For the foregoing reasons, it is hereby ordered that although Claimant unfortunately suffered injuries, his claim is denied.

ORDER ON DENIAL OF REHEARING

Dillard, J.

This cause coming on to be heard on Claimant’s petition for rehearing, the Court finds that the Claimant has not shown good and proper cause why such petition should be granted.

It is hereby ordered that the petition is denied.


text:
    (No. 84-CC-3251
    Barbara Anderson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 25, 1988.

    Iversen, Carlson & Associates, for Claimant.
    Neil F. Hartigan, Attorney General (Karin Kepler, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

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

That the claim before us arose from a vehicular accident which occurred on May 21, 1983, on Route 47 near Huntley, Illinois. Claimant’s decedent was involved in a head-on collision with Robert Yurs. Shortly before the accident, Mr. Yurs had been stopped for erratic driving and was ticketed by State trooper Richard Stewart of District 15.

The gist of the Claimant’s complaint is that when Trooper Stewart stopped Mr. Yurs and issued him a warning citation, he was careless or negligent in failing to determine that Mr. Yurs was possibly under the influence of alcohol, and was careless or negligent in allowing Mr. Yurs to drive. It further alleges that as a direct and proximate cause of these acts or omissions, Claimant suffered loss of financial support and loss of consortium. Additionally, by amended complaint, it is alleged that Trooper Stewart’s conduct was willful and wanton.

Traditionally, claims such as this fall under a rule of law sometimes known as the “public duty” rule. This rule states that a police officer’s duty to enforce the law is a duty owed to the public generally and not to individual persons; therefore, police officers and their employers are not liable to individuals injured even if an officer failed to do his or her duty. (Mallder v. Rasmussen (1986), 145 Ill. App. 3d 809, 495 N.E.2d 1356.) An exception to this rule exists where the police enter into a special relationship with a person who is subsequently injured (Mallder, supra), but no such relationship existed in this case.

The Claimant argues that section 319 of the Restatement of Torts 2d, should be adopted by this Court in this case to create a duty on the part of Trooper Stewart to protect third persons once he had stopped Mr. Yurs.

“319. Duty of Those in Charge of Persons Having Dangerous Propensities.
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”

In Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 314 N.E.2d 515, with facts similar to the present case, the court rejected the application of section 324A of the Restatement of Torts. Section 324A essentially states that those who render services have a duty to exercise reasonable care to protect third parties. In Fessler, supra, the court found that the decedent’s representatives had no cause of action against the police officer who had been dispatched to respond to reports of drunken driving. The officer talked to the alleged drunken drivers, but did not make an arrest. Soon thereafter one of the drunken drivers struck an auto and killed its occupant. The court refused to create a duty to specific third persons and rejected application of section 324A of the Restatement of Torts. The court stated that, “the law and policy of this State call for the continued validity of the ‘public duty’ rule * * Fessler, 161 Ill. App. 3d 290, 302.

In cases similar to the present case, the precedents are uniform in this State, holding that no duty exists to specific third persons. Additionally, an argument attempting to establish a duty to specific persons from the Restatement of Torts, albeit a different section, has been rejected within the past year on the grounds of public policy. Therefore, this Court, under the precedent of the reasoning and rule of law as expressed in the Fessler case, cannot adopt section 319 of the Restatement of Torts 2d, to create a duty to the Claimant’s decedent.

The Claimant pleads that the conduct of Trooper Stewart was willful and wanton; however, the Claimant pleads no facts to distinguish Trooper Stewart’s conduct from that of the officers in Fessler or Mallder, supra. It would appear that the allegation is more directed to the Respondent’s argument of public official immunity which this Court has not addressed.

Therefore, this Court finds that the Claimant has failed to state a cause of action, and this complaint is dismissed.

The Claimant, in its memorandum, requests leave to file a second amended complaint. The Claimant may make whatever motions it deems necessary in the proper form.