author: Frederick, J. Frederick, J.

text:
    (No. 88-CC-2692
    Elman H. Cleckley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 10, 1994.

      Order on petition for rehearing filed September 19, 1994.

    Robert M. Hodge, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant filed his complaint sounding in medical negligence in the Illinois Court of Claims on February 25, 1988. The Claimant alleged that in 1987, while he was serving a sentence in the Illinois Department of Corrections, the State failed to diagnose his condition of osteomyelitis which led to the loss of three of Claimants toes from his left foot and pain and suffering. The cause was tried before Commissioner Rochford.

The Claimant, Elman Cleckley, testified at the trial of this cause. Mr. Cleckley was 70 years old. He testified he has been an insulin-dependent diabetic for 30 years and takes 50 units of insulin daily. At the time of his incarceration, Claimant also suffered from high blood pressure and cataracts.

On June 7, 1986, Claimant entered Cook County Jail. On July 11, 1986, while in Cook County Jail, Claimant developed gangrene in his left big toe. The toe was amputated in August of 1986 and the foot healed completely.

On November 27, 1986, Claimant was transferred to Joliet Reception and Classification Center where a physical examination noted Claimant had a history of diabetes, tuberculosis, eye trouble, high blood pressure, arthritis in his hands, and the amputation of the big toe from his left foot.

Claimant was transferred to Jacksonville Correctional Center on December 11, 1986. On January 10, 1987, the Claimant presented himself to the prison infirmary after noticing a blister on his left foot that started to drain pus. Doctor John Peterson, a family practitioner, performed a physical examination and noted that the Claimants second toe was swollen and black. The doctor did not note any redness or swelling in the rest of the foot. Dr. Peterson diagnosed cellulitis in the second toe and he ordered an aerobic culture and antibiotics. He did not order an anaerobic culture.

On January 17, 1987, Claimant reported pus coming from the toe. On January 18, 1987, the drainage was noted and on January 19, 1987, the area was treated with Betadine ointment.

On January 21, 1987, Claimant was admitted to the prison infirmary with a temperature of 100 degrees and he was placed on intravenous antibiotics. Dr. Peterson examined and reviewed Claimant’s history and diagnosed gangrene cellulitis.

On January 22, 1987, Dr. Drennan performed a debridement of the affected area. Claimant was further treated with oral antibiotics, Betadine soaks, and hydrotherapy foot massage. Claimant was released from the prison infirmary on February 9,1987.

On April 18, 1987, a second toe became infected. Claimant was admitted to Passavant Area Hospital on April 24, 1987, where his second toe was amputated by Dr. Drennan. Claimant was treated with intravenous antibiotics. Bone and tissue were surgically removed. Claimant was released to his unit on May 12,1987.

On May 12, 1987, an examination revealed that the surgery site had healed well. On July 16, 1987, Claimant presented with his third and fourth toes swollen with blisters and signs of infection. He was given antibiotics. A diagnosis of cellulitis was made and the Claimant was placed on IV medication and Betadine foot soaks. On July 27, 1987, Claimants third and fourth toes were amputated at Passavant Area Hospital. The pathology report indicated cellulitis. Claimant returned to the prison infirmary and remained there until his amputation site healed. On August 22, 1987, Claimant’s foot was sore, swollen and draining. He was put on antibiotics and instructed as to applying compression dressing on his foot.

On September 3, 1987, Claimant had some draining. He was given a prescription for antibiotics and instructed to see a physician after his release from prison. Claimant was released from prison on September 4, 1987. On September 4, 1987, Claimant had swelling from his foot to his lower leg.

Claimant first saw Dr. John Bartel on September 22, 1987. He next saw Dr. Bartel on October 27, 1987. An x-ray at that time indicated Claimant had osteomyelitis of the foot. Claimant was admitted to Illinois Masonic Medical Center on November 11, 1987. During this 19-day hospitalization, some infected bone and tissue were removed.

Claimant was examined again by Dr. Bartel on December 17, 1987. The doctor noted that the patient’s condition was improved but noted a blister on the second metatarsal of the left foot. On January 4, 1988, examination revealed an ulceration on Claimant’s left foot. Dr. Bartel debrided the lesion, applied antiseptic, and provided a pad for Claimant’s shoes. On January 30, 1988, the ulceration had worsened.

Dr. Bartel recommended further surgery to remove infected bone, but Claimant refused. On February 25, 1988, Claimant was admitted to Little Company of Mary Hospital and the surgery was scheduled, however, Claimant left the hospital prior to surgery.

On March 17, 1988, Claimant was admitted to Little Company of Mary Hospital under the care of Dr. Kalimuthu. On March 24, 1988, a debridement and resection of the second metatarsal bone of the- left foot was performed and infected bone fragments were removed. Additional x-rays evidenced osteomyelitis of the second metatarsal. Claimant’s condition improved and he was discharged on April 4, 1988. The discharge diagnosis was: (1) infected abscess of the left foot, (2) osteomyelitis of second metatarsal, (3) uncontrolled diabetes, and (4) peripheral vascular disease.

Claimant was hospitalized from November 29 to December 10, 1988, for further debridement of the infected left foot.

Claimant was again hospitalized from January 20 to February 3, 1989, at which time the affected area of the left foot was debrided and infected bone removed. Dr. Stachowski, a consulting physician, summarized Claimant’s condition as follows:

"My feeling *'*is that he has a chronic infection of his foot with underlying chronic osteomyelitis. I think that the prognosis of this foot is poor and that he will eventually need, perhaps, a below-the-knee amputation. I think that therapy at this time is local therapy and good hygiene.”

Claimant took some time to heal. Arrangements were made for a visiting nurse agency to follow his blood sugar and to check on his dressings.

Claimant was then seen by Dr. John Bartel on February 28, 1989, and March 9, 1989. Dr. Bartel noted the new problems at the first and fourth metatarsal and recommended amputation of the front of the foot.

Claimant testified that he consulted Dr. Bartel who told him that more radical surgery was required to finally cure the osteomyelitis. Claimant declined the surgery. Claimant received dressings and Betadine, a disinfectant, from Fantus Clinic.

The Claimant submitted copies of medical bills for treatment rendered after he left the penitentiary. The submitted medical bills total $38,366.51.

Dr. John A. Bartel, a doctor of podiatric medicine, testified on behalf of the Claimant and he testified without objection. Dr. Bartel is the medical director of the School of Podiatric College at the Illinois Masonic Medical Center and is board certified by the American Board of Podiatric Surgery in foot surgery. Dr. Bartel testified that he treats 100 patients annually for serious diabetic infections.

Based on a review of Claimants medical records, Dr. Bartel testified that Claimant had an infection in January 1987. Dr. Bartel stated the symptoms of cellulitis and osteomyelitis are redness, swelling, open wound, drainage and pain. He stated that osteomyelitis can only be distinguished from cellulitis by the severe pain and long duration of pain caused by osteomyelitis.

Dr. Bartel further testified that Claimant would not be able to report the pain because he was suffering from diabetic neuropathy which results in sensory loss, muscle weakness, atrophy and decreased deep tendon reflexes.

In Dr. Bartel’s opinion, the only way the treating physicians could have distinguished between osteomyelitis and cellulitis in this case would be through x-rays and anaerobic cultures.

Dr. Bartel testified that the standard of care for diabetic foot infections is set forth in The Management of Diabetic Foot Problems, Jocelyn Clinic of New England Deaconess Hospital (1984). The procedures indicated are culture, bed rest, antibiotic, appropriate drainage, proper dressings, and neuropathic x-rays.

Based on the authorities, his review of records and his treatment of the Claimant, Dr. Bartel testified without objection that Dr. Peterson’s failure to take an x-ray constituted a deviation from the standard of care. The ability to establish osteomyelitis through an x-ray depends on how much bacteria has attacked the bone. Where the infection is well advanced, an x-ray could give a definitive reading. Dr. Bartel stated that standard treatment for diabetics, where vascular compromise is a problem, includes both aerobic and anaerobic cultures. Dr. Bartel concluded that the failure to take an anaerobic culture was a deviation from the standard of care.

Aerobic and anaerobic cultures are necessary to determine the proper level of antibiotics necessary to heal an infection. Dr. Bartel testified that with osteomyelitis, skin can cover a wound and give the appearance that it is clean or healed even though it is still infected. It will break down later and drain and then come back again. Dr. Bar-tel believed that this process occurred to Claimant.

After the culture was taken, Claimant was treated with Keflex for three days, then with Ampicillin for three days, and then with Keflex. Dr. Bartel opined that this was inconsistent with any infectious disease process of which he was aware. Dr. Bartel testified Claimant should have been given an antibiotic for at least five days and up to ten days, or if osteomyelitis was diagnosed, an antibiotic should have been given for up to six weeks. He claims it was a deviation from the standard of care to change from one antibiotic to another and using it for a short period not knowing whether osteomyelitis was present. Relying on The Management of Diabetic Foot by Levin (1977), Dr. Bartel also testified that intravenous antibiotics should have been ordered instead of oral antibiotics because they provide greater concentration to the infected area.

With respect to the debridement performed on January 22, 1987, Dr. Bartel testified that it was unclear from the records whether the debridement procedure was sterile. Relying on the fact that a registered nurse signed the records, Dr. Bartel believes the debridement procedure was improper because it was not performed by a physician under sterile conditions. Dr. Bartel gave the opinion that this procedure constituted a deviation from the standard of care regardless of whether Claimants diagnosis was for cellulitis or osteomyelitis.

Dr. Bartel further testified that a Betadine solution rather than an ointment is more effective in healing an infection. Dr. Bartel contends that it was inappropriate to use solution and ointment on Claimant. Dr. Bartel relied on The Diabetic Foot, which states, “topical paste and cream should be avoided because of their tendency to promote maceration.” Maceration is a softening and dampening of an infected area and is harmful because it allows the infection to spread when moisture gets into the area and opens up the fascia planes. It also closes the area and prevents the infection from draining.

Dr. Bartel contends that the medical staff deviated from the standard of care by not opening the toe sooner than the debridement on January 22, 1987. Dr. Bartel testified that since there was a culture, there must have been drainage and the area should have been opened immediately in case of infection. Dr. Bartel contends that debridement or incision and drainage should have been done promptly regardless of whether cellulitis or osteomyelitis was diagnosed. Dr. Bartel contends that the debridement procedures and Betadine ointment soaks were not the equivalent of incision and drainage. The debridement would remove the outer layer of tissue and effectively open the area up to allow draining, but the Beta-dine ointment would close it and stop it from draining. However, Dr. Bartel candidly admitted that Claimants condition improved after the debridement procedure.

Dr. Bartel also testified that it was improper to soak Claimants foot at the same time Claimants toe was being debrided. Soaking could result in an open wound being further macerated by the ointment, fluids and hydromassage causing the fascia planes to open further perpetuating the infection. Dr. Bartel admitted that sometimes after the infection is healed, soaking and whirlpool to debride is indicated. However, it is Dr. Bartel’s opinion that this is not true in the case of an acute infection such as Claimant had.

Dr. Bartel contends that after bone was removed during debridement, a culture and/or pathology report should have been completed to determine the source of the problem. Dr. Bartel contends that the failure to do this was a deviation from the standard of care.

Claimant’s ability to control his blood sugar level would increase his ability to heal. Dr. Bartel contends that while Claimant was incarcerated, his blood sugar level was not under tight enough control.

Dr. Bartel first treated Claimant following his release from Jacksonville Correctional Center in September 1987. Following x-rays taken in October, Dr. Bartel diagnosed Claimant as having osteomyelitis. Dr. Bartel performed surgery in November and removed the remaining infected parts of the phalanxes. The pathology report and the aerobic and anaerobic cultures confirmed the diagnosis of osteomyelitis. Dr. Bartel could not testify to a reasonable degree of medical certainty that Claimants infection would have healed at Jacksonville had cultures, x-rays, incision and draining been performed because diabetics are a difficult problem. Without adequate care, the chance of healing was much less. In Dr. Bartel’s opinion, it was certain Claimant would continue having problems and require further surgery. Dr. Bartel concluded that ultimately Claimant would need a below-the-knee amputation.

Dr. John Peterson, a medical doctor, was the medical director of Jacksonville Correctional Center during the period of Claimant’s incarceration. He managed Claimant’s treatment during his incarceration at Jacksonville. Dr. Peterson testified that he had been in private practice for 11 years and was on staff at Passavant Area Hospital. Dr. Peterson is certified in family practice and treats both diabetic and non-diabetic patients with foot problems in his private practice and at Jacksonville Correctional Center. Further, he was a board member for various diabetes-related organizations and a speaker for the State American Diabetes Association.

Dr. Peterson treated cases of osteomyelitis as a bacterial infection of the bone. He described the principle signs of osteomyelitis as redness, swelling, pain and drainage if the condition goes untreated. He testified that in his clinical opinion, Claimant did not have osteomyelitis in January of 1987. He found no evidence of osteomyelitis in the physical examination. Dr. Peterson determined that Claimant did not have osteomyelitis because the end of his second toe was black and he had no redness or swelling in his foot. He found no reason to suspect that any other part of the foot was infected.

The medical staff was treating Claimant for a number of medical problems, including diabetes, hypertension, and glaucoma. As a medical doctor, Dr. Peterson is trained in general medicine. He stated that podiatrists, such as the Claimants expert, Dr. Bartel, generally do not treat someone who has diabetes or hypertension and that they are limited to treating the foot and ankle.

Dr. Peterson testified that inmates at Jacksonville Correctional Center received the same, if not a better, standard of care than they would receive in the Jacksonville Community Hospital because the infirmary is so accessible.

Dr. Peterson believed that Dr. Bartels criticisms and opinions are flawed because Dr. Bartel’s report rests on the assumption that Claimant had osteomyelitis when Dr. Peterson first treated him in January of 1987. Dr. Peterson found no evidence to suggest that osteomyelitis was present. Dr. Peterson opined that Claimant could have developed the disease after his release from Jacksonville. Dr. Peterson suggested that the result of Dr. Bartels report is based on that initial erroneous assumption.

At the initial examination, Dr. Peterson ordered an aerobic culture for Claimant’s gangrenous toe and put him on Keflex, an antibiotic. Because the culture established that Claimant’s infection was sensitive to Keflex, Dr. Peterson did not change the medication. Dr. Peterson did not order x-rays because the absence of redness or swelling in the foot established that the condition in Claimant’s second toe had not affected the rest of his foot. Dr. Peterson referred Claimant to Dr. Drennan, a general surgeon at Passavant Hospital, because his condition appeared to be a surgical problem that required surgical debridement. Dr. Drennan agreed with the diagnosis of gangrene to the toe. Dr. Drennan debrided Claimant s second toe and prescribed Betadine hydrotherapy. Dr. Peterson and Dr. Drennan concurred in diagnosis and treatment.

Dr. Peterson testified that Betadine ointment was appropriate for Claimants condition because it prevents infections from spreading. Dr. Drennan had successfully used the therapy for years. Claimants condition gradually improved following the debridement procedures. He was eventually released from the infirmary to the prisoner population at Jacksonville. He was taken off the antibiotics, but he continued daily Betadine hydrotherapy foot massage.

Claimant experienced no further medical problems until April of 1987 when the proximal part of his toe exhibited signs of possible infection. He was admitted to Passavant Hospital where Dr. Drennan amputated his second toe. Dr. Peterson concurred with the decision to amputate, concluding that if it had not been done, the infection could have been life-threatening and could have spread to the rest of Claimants foot and possibly to the rest of Claimants body. Following the surgery, the area surrounding Claimants amputated toe began to heal.

Dr. Peterson testified that no more aerobic cultures were necessary because Claimant was responding well to the antibiotic and there was no reason to repeat a culture with improvement. An anaerobic culture is a deep culture which is used only if there is evidence of a deep infection, redness or swelling in the foot, according to Dr. Peterson. It was not ordered for Claimant because these clinical signs were not present in Claimants foot. For the same reasons, Dr. Peterson did not order any x-rays since there was no involvement of the foot. In regard to Dr. Bartels assertion that the wrong antibiotic was used, Dr. Peterson stated that the culture and sensitivity report demonstrated that Keflex was the correct antibiotic. He was able to discontinue it because the toe had healed and there was no further evidence of infection. Dr. Peterson used oral rather than IV medication because it had been effective. However, Dr. Peterson noted he would use IV medication if he were treating osteomyelitis.

Following the debridement on January 21, 1987, the top of Claimants second toe was open, but there was no sign of infection or drainage from February to April of 1987. Dr. Peterson disputed Dr. Bartels assertions that the Betadine soaks were improper and that Claimant had a diabetic pressure ulcer. Dr. Peterson found that Claimant’s condition was a vascular problem stemming from a lack of blood supply to his toe. Dr. Peterson testified that the better control one has of diabetes, the less vascular problems one will have. Dr. Peterson indicated that smoking also decreases blood flow and that Claimant would help improve his condition by not smoking.

Dr. Peterson disputed Dr. Bartel’s claim that some of the debridements were non-sterile and performed by non-physicians. Dr. Peterson and Dr. Drennan performed all the surgical debridements using sterile gloves, sterile drapes and sterile treatments. Following the amputation, there was no evidence of a deep infection or drainage which would have suggested the need to perform another culture.

Dr. Peterson also took issue with Dr. Bartel’s assertion that Claimant’s blood sugar levels were not monitored frequently enough. Dr. Peterson testified that there was frequent monitoring of Claimants blood sugar levels during his incarceration and the State dietician consulted with Claimant to try to get him to comply with his diabetic diet. Claimants blood sugar level was measured at 14 when he entered the Department of Corrections. His blood sugar level dropped from 14 to 9 after two months in the infirmary. Dr. Peterson testified that this is a significant improvement in light of the fact that a non-diabetic would have a level of six. Claimants blood sugar level returned to 12 following his return to the general population.

Dr. Peterson countered Dr. Bartel’s complaint that there was no incision and drainage by stating that there was no indication it was necessary because there was no evidence of redness or swelling of the foot.

In response to Dr. Bartel’s testimony that the presence of an exuded bone in Claimant’s foot was a sign of osteomyelitis, Dr. Peterson testified that Dr. Bartel erroneously assumed that there was an exuded bone from his reading of Claimant’s medical records. Dr. Peterson testified that Claimant did not have a bone that exuded through the skin. Dr. Peterson testified that bone did not come out, but instead Dr. Drennan removed the blackened area.

Dr. Peterson indicated that Dr. Bartel failed to order x-rays or any cultures or diagnose osteomyelitis when he first saw Claimant on September 22, 1987. Dr. Bartel did not diagnose osteomyelitis until October 27, 1987, almost two months after Claimant was discharged from Jacksonville. Dr. Peterson noted that, in his medical opinion, Claimant could have developed osteomyelitis during that period of time. The pathology reports which followed the amputations confirmed the diagnosis of cellulitis and did not show evidence of osteomyelitis.

In response to whether there is a danger of maceration with Betadine soaks, Dr. Peterson testified that such a danger exists with a pressure ulcer, but that was not the case with Claimant who had a gangrenous toe.

Dr. Peterson testified that a high blood sugar level such as Claimants on February 14 could be a sign of noncompliance or infection. Dr. Peterson testified that the debridement done was equivalent to the incision and drainage procedure used with a diabetic foot infection. Furthermore, he said that the incision and drainage procedure is used when there is a deep infection to allow for drainage.

From May to July, Claimants foot had healed and there were no signs of infection. The third and fourth toes appeared to be infected on July 16, 1987. On July 17, Claimants third and fourth remaining toes appeared reddened. This was the first time Claimants toes or foot exhibited signs of reddening. Dr. Peterson testified that both cellulitis and osteomyelitis can cause reddening or swelling. There was swelling of the left foot and ankle on July 19th which could have resulted from cellulitis as well as other infections. Claimant was given intravenous antibiotics on July 21, 1987. However, Dr. Petersons notes indicated that Claimants foot had no swelling, redness or pain.

Dr.Peterson testified that Claimant suffered from peripheral vascular disease and diabetic neuropathy and he acknowledged that as diabetes progresses, a diabetic may lose sensation both to touch and pain.

Subsequent to the amputation on July 27, 1987, Dr. Peterson examined Claimant on August 4 and found Claimant's foot was clean and healing. There were no signs of infection and his blood sugar level was good. Dr. Peterson continued the use of antibiotics for 10 days. On August 5, the incision exhibited one small open area with red serous drainage, but no sign of infection. On August 6, there was a small amount of bleeding from the incision, but no redness, swelling or pain and the incision was clean. On August 8, the incision was clean and there was no drainage.

September 3, 1987, was the last time Dr. Peterson saw Claimant. Some discharge was present from the amputation site, the skin around the rest of the incision looked good. Shortly before his discharge, Claimant developed some swelling and drainage. He was put on antibiotics for a possible infection in his foot. Dr. Peterson testified that the medical staff’s ability to respond to Claimant’s new condition was limited because of his imminent release. Because Claimant’s foot was not completely healed, Dr. Peterson stressed the need for him to seek immediate medical attention after his discharge.

Dr. Peterson testified that Claimant’s condition from January 12 to September 4, 1987, was a recurrent problem rather than a persistent one and that his infection only became persistent right before his release. From May to July, Claimant experienced no problems with his foot. He was in the general population and walking without experiencing a problem. For individuals who have serious peripheral vascular disease, such as Claimant, who had a toe amputated prior to his arrival at Jacksonville, the question is not if they lose more toes, but when. Dr. Peterson stated that while Claimant never had any specific testing for peripheral vascular disease, the most likely cause of his initial amputation was the peripheral vascular disease which is the deterioration caused by diabetes. Dr. Peterson testified that while a diabetic may not feel pain, there is redness and swelling, and if the condition is left untreated, it will point to the surface and cause drainage. In Dr. Petersons opinion, it is unlikely that osteomyelitis could have been present without the symptoms of redness or pain. In explaining his treatment of Claimants condition, Dr. Peterson testified that the presence of redness and swelling could signal either osteomyelitis or cellulitis. First, the patient is treated for cellulitis. If the condition does not improve, the doctor must then think about osteomyelitis and further tests.

Dr. Drennan’s final diagnosis of Claimant was Buerger’s Disease and gangrene in the third and fourth toes of the left foot. Buerger’s Disease is an indication of vascular problems wherein the toes become gangrenous. Smoking would worsen the condition of a diabetic’s toes to the point at which he would lose them.

Finally, Dr. Peterson acknowledged having heard of the two diabetic foot books presented as authority by Dr. Bartel, however he admitted that he had never read them.

Cindy Boston, a registered nurse, testified that she is currently the health care administrator at Taylorville Correctional Center in Taylorville, Illinois. She was the health care administrator at Jacksonville during the time of Claimant’s incarceration. She has also worked as the head nurse at Passavant Hospital since 1970. Nurse Boston did not treat Claimant. Her testimony was based on her review of Claimant's medical records, her own summary of his medical records, Dr. Bartel’s original statement, deposition and letter to the Claimant’s attorney, and the personal property inventory records of Claimant during his stay at Jacksonville. Ms. Boston presented three personal property inventories of Claimant from January 12, April 21 and July 20, 1987. Claimant had nine packs of cigarettes in April and eight in July. The January and April inventories revealed that Claimant had soda pop and the July inventory established that Claimant had cookies in his possession.

Nurse Boston testified that Claimant appeared for medical treatment approximately the same number of times that he failed to appear. Inmates can refuse any form of medical treatment unless it involves a life-threatening condition.

With respect to sugar products, soda pop and cookies in Claimants inventories, nurse Boston discounted the notion that Claimant was medically treating his diabetic condition. She testified that it is not standard procedure for diabetic inmates to treat their own diabetes. Help was available to an inmate with a low blood sugar level within a few minutes. Inmates are afforded daily access to the health care unit to request medical services.

The visits Claimant missed at the health care facility were for showers, cleaning his feet in the bath, applying dressings, and allowing the nursing staff to monitor his progress.

For an inmate on a special diet, instruction is given, a copy of the diet is brought to dietary, and the inmate goes to a special diet line. Claimant received daily insulin injections at the health care unit.

In response to Dr. Bartels criticisms, nurse Boston disagreed with Dr. Bartels assertion that no culture was taken on January 17 when it was reported that pus was present. The medical staff had already taken a culture on January 12 prior to starting Claimant on the medication. Results of the culture established that Claimant was sensitive to the medication and she concluded that it was the proper treatment.

She testified that Dr. Bartel was incorrect in stating that only physicians can perform debridements and that the debridements were not performed under sterile conditions. A debridement procedure can be as simple as cleaning a wound, a job which nurses can perform. Doctors Drennan and Peterson performed all of the surgical debridements. Registered nurses performed non-surgical debridements under sterile conditions.

In response to Dr. Bartels assertion that there was an entry citing decreased swelling in Claimants foot, ankle and calf on April 18, nurse Boston testified that Dr. Bartel was relying on a subjective assessment that Claimant himself gave to Dr. Duval. The note reflects Claimant's own description of what the toe looked like, not whether there was actually any swelling present.

The American Correctional Association (“ACA”), an accrediting body responsible for inspecting correctional facilities and reviewing all aspects of care to insure general standards are met, had approved the conditions at the Jacksonville Correctional Center.

Jacksonville uses a hydrotherapy foot massage pursuant to the physicians’ orders. The process was described as a small soaking foot bath with a motor that vibrates the water, not comparable to the much larger whirlpools used in community hospitals. The foot massage at Jacksonville is used with a solution, ordered by the physician, to gently shake the water in order to clean a wound and remove only dead tissue as opposed to doing it by hand which would also remove healing tissue.

The law is clear that to establish medical malpractice, Claimant must first establish the medical standard of care by which the Respondent’s conduct is to be measured, that the Respondent deviated from the standard of care, and that the Respondent’s conduct proximately caused injury to the Claimant. (Massone v. Holmes (1990), 197 Ill. App. 3d 886.) 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 Claimant has attempted to establish the standard of care through the testimony of Dr. Bartel, a board certified podiatrist, who is well-qualified and experienced in the treatment of the diabetic foot.

Dr. Bartel testified that the standard of care for treatment of the diabetic foot is set forth in The Management of Diabetic Foot Problems, Jocelyn Foot Clinic of New England (1984). The proper procedures as indicated in that text are culture, bed rest, antibiotic, appropriate drainage, proper dressings and neuropathic x-rays.

However, the law is also clear that it must be established that the Claimants expert is a licensed member of the school of medicine about which he proposes to express an opinion. While Dr. Bartel appears to be an eminently qualified podiatrist, he is not licensed in the same school of medicine as Dr. Peterson, a licensed medical doctor board certified in family practice. Accordingly, a podiatrist is not competent to render expert opinion as to the standard of care to be followed by a family practitioner in this case. Dolan v. Galluzzo (1979), 77 Ill. 2d 279; Purtill v. Hess (1986), 111 Ill. 2d 229.

Claimant has therefore not proven that the standard of care for a family practice medical doctor dictated an x-ray of the Claimants foot to make a proper diagnosis and a determination of whether Claimant was suffering from cellulitis and/or osteomyelitis. It is Claimants position that Respondents failure to x-ray the affected area constituted a deviation from the standard of care. We cannot agree because of the lack of competent medical expert testimony.

Respondent contended that the Claimant was not suffering from osteomyelitis at the time and that an x-ray was not indicated because the doctors did not observe redness of the area and that Claimant did not report pain. Respondent did not establish another standard of care nor did Respondent dispute the standard of care presented by Claimant. No non-treating experts testified for Claimant or Respondent as to the standard of care on this point.

Respondents failure to x-ray the Claimants foot establishes a deviation from the standard of care as set forth by Claimants expert for a podiatrist but not for a medical doctor. If Claimant had called an expert licensed in the same school of medicine who gave similar opinions as Dr. Rartel or if we found a waiver of the experts qualifications based on Respondents incredible lack of objections, we could have found a deviation from the standard of care. The symptoms of cellulitis and osteomyelitis are essentially the same except that osteomyelitis has more intense pain and a longer duration of pain. The providers could not rely on Claimant’s pain as an indicator since Claimant suffered from peripheral neuropathy which reduced his sensitivity to pain.

In addition, there were other signs which could have been indicators of osteomyelitis. On January 20,1987, Dr. Peterson’s notes indicated the presence of pus in the affected area and that the patient had a fever of 101 degrees. Dr. Peterson admitted that both of these symptoms could have indicated osteomyelitis. Also in April of 1987 the patient demonstrated swelling in the calf and ankle, which is another possible indicator of osteomyelitis.

The Respondent failed to object to the opinions of Dr. Bartel and in light of Claimants complete medical history, the Respondents physicians most likely could not have made a reliable diagnosis without an x-ray of the foot and anaerobic cultures which would have conclusively distinguished between cellulitis and osteomyelitis. However, there is no competent expert testimony on this point that we can consider.

Those practicing the medical arts in the penitentiary are held to the same standard of care as those practicing in the communities in 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. Such a restraint would be the imminent release of a patient and the subsequent inability to continue treating the patient. However, those types of 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. Kuhn (1978), 56 Ill. App. 3d 997,1002.

The second issue is whether the Respondents failure to x-ray and perform anaerobic cultures on the Claimants foot and make a conclusive diagnosis was a proximate cause of the Claimants injury. Even if we were to consider that the Respondent waived any objection to the opinions of Dr. Bartel, the critical testimony of Dr. Bartel is as follows:

Q. “Do you have an opinion as to a reasonable degree of medical certainty that if these indicated procedures had been followed, cultures, x-rays, incision and draining and so forth during the time period that Mr. Cleckley was in Jacksonville Correctional Center whether his infection would have healed and he could have saved all or some of his toes?”
A. “There is no way to say that for certain because diabetics are a difficult problem, but without adequate care and standard of care the chances of him healing up was much less and I feel that the patient should have— even if he was incarcerated should have standard of care.”

The standard of proof for causation is that Claimant must prove by a preponderance of the evidence that Respondent’s 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 285.) The Claimant sustains his burden by proving, generally through expert testimony, that Respondent’s breach of the applicable standard of care is more probably true than not the cause of Claimant’s 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.) Dr. Bartel was specific in his opinions that Dr. Peterson deviated from the standard of care. However, Dr. Bartel did not specifically testify or state words to the effect that it was more probably true than not true that Respondent’s negligence was the proximate cause of Claimants injury. (Kaplan v. Berger (1989), 184 Ill. App. 3d 224.) Claimant spent a considerable amount of his time questioning Dr. Bartel in regard to establishing the standard of care and the deviations therefrom. The testimony as to proximate cause is virtually nonexistent and is too speculative even if we accepted Dr. Bartel’s opinions against a medical doctor. As the Claimant must establish that the failure to diagnose 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 Respondent's alleged deviation from the standard of care and the Claimant’s resulting injury.

Dr. Bartel, a podiatrist, testified that in his opinion and assuming Claimant had osteomyelitis while under the care of the Respondent, if Claimant had been diagnosed and the infected bone had been removed, the Claimant would have had a chance to heal and further surgeries would have been prevented.

However, the Claimant’s treatment history does not lend credence to his position. Claimant’s history indicated a multitude of health problems including diabetes, tuberculosis, eye trouble, high blood pressure and arthritis, in addition to a prior amputation. Claimant had one toe amputated prior to his incarceration in the State facility while incarcerated at a Cook County facility. In the opinion of Respondent’s expert, Dr. John Peterson, M.D., the issue was not if further amputation would be necessary, but rather when they would be necessary. In addition, Claimant’s failure to comply with some of his medical treatment may have contributed to his own injury.

Evidence was presented to establish that Claimant missed a number of scheduled visits at the health care facility for monitoring of Claimants progress and he had refused to comply with his current doctors recommendation and had discontinued treatment. There were also periods of time while incarcerated that Claimant did not have foot problems and the toes were healing.

Finally and most importantly the pathology reports on the bone removed by amputation from Claimant during his incarceration did not indicate the presence of osteomyehtis. This would indicate that no osteomyehtis existed during this time, which would support Dr. Peterson’s contention that osteomyehtis developed after Claimant was discharged.

Following each of the amputations performed during Claimant’s incarceration, pathology studies were performed on the bone and the pathology reports did not indicate the presence of osteomyehtis. Respondent’s expert, Dr. John Peterson, testified Claimant may have developed osteomyehtis in the period following his release from the State prison on September 4, 1987, and Dr. Bartel’s diagnosis of osteomyehtis on October 27,1987.

We find that Claimant has failed to prove by a preponderance of the evidence that any alleged deviation was a proximate cause of Claimants injury. The evidence is more probable than not that Claimant did not have osteomyehtis until veiy late in his incarceration or after release and prior to the x-rays taken by Dr. Bartel. The fact that the pathology reports did not indicate osteomyehtis, the fact that Claimant had periods of no infection or medical problems to his feet, and the fact Dr. Bartel did not initially order x-rays are all significant in our decision.

We also find that the cigarettes, soda pop and cookies listed in the inventory sheets do not constitute comparative negligence. The burden of proving Claimants comparative negligence was upon the Respondent. (Casey v. Baseden (1986), 111 Ill. 2d 341.) However, not every negligent act of a claimant will be considered under the doctrine of comparative negligence. We find the evidence presented too speculative to sustain a finding of comparative negligence regarding the cigarettes, soda pop and cookies.

For the foregoing reasons, it is ordered, adjudged and decreed that the Claimants claim is denied.

ORDER

Frederick, J.

This cause comes on Claimants petition for rehearing, or in the alternative, a new trial, and the Court having reviewed the entire docket and all pleadings, transcripts, and the Courts opinion, and the Court being fully advised in the premises, wherefore, the Court finds:

(1) That the Court correctly apprehended the facts and the law in this case.

(2) That even if the podiatrists testimony was competent, the Claimant failed to prove by a preponderance of the evidence that Respondents actions were the proximate cause of Claimants injury.

(3) That the Court found the testimony which established a lack of proximate cause more credible.

Therefore, it is ordered that Claimants petition for rehearing or in the alternative, a new trial, is denied.


source: Caselaw Access Project

author: Frederick, J.

license: Public Domain

text:
    (No. 88-CC-3240
    Norman C. Johnsen, Claimant, v. Board of Trustees of Southern Illinois University, Respondent.

      Opinion filed January 13, 1995.

    Carr, Korein, Tillery, Kunin, Montroy, Glass & Board (Staci M. Yandle, of counsel), for Claimant.
    Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge (John L. Gilbert, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant filed his claim in the Court of Claims on March 15, 1988. Norman C. Johnsen, the Claimant, contends that the Respondent, the Board of Trustees of Southern Illinois University, improperly terminated his position as a tenured professor.

The Claimant was initially hired by Southern Illinois University at Edwardsville (SIUE) as a community development specialist in 1962. Claimant remained in that position for five years until he switched his focus to the development of SIUE s new campus in 1967. On April 1, 1967, Professor Johnsen was appointed to the Department of Earth Sciences, Geography and Planning, and was fully tenured on April 1, 1971. In September 1971 the Illinois Board of Higher Education approved the Masters of Science Degree in City and Regional Planning (MCRP program). The MCRP program was in the Earth Sciences Department within the Division of Social Sciences.

Southern Illinois University at Edwardsville is an institution of higher education governed by its own by-laws and statutes adopted by its board of trustees. Among those statutes and by-laws are specific guidelines regarding tenure within the university. Pursuant to the by-laws and statutes approved July 1, 1964, with amendments on March 10, 1977, SIUE adopted regulations regarding the termination of tenured faculty. These regulations permit termination of a tenured professor for cause or in case of financial exigency or cutbacks in its programs. The statutes and by-laws indicate that the termination process of a tenured professor should conform to the principles of the American Association of University Professors (AAUP).

In April of 1983 Claimant learned of the university’s intent to terminate the MCRP program. At that time, Social Sciences Dean Susan Jacobitti informed Claimant that the trustees of the university were likely to eliminate the program. Following this meeting with Dean Jacobitti, Claimant met separately with Dean Samuel Pearson, Jacobitti’s successor and vice president, and with Barbara Teters, then vice president provost.

On May 4, 1984, Dr. Teters and Dean Pearson met with Professor John sen to inform him of the schedule of events assuming that the decision to terminate the MCRP program would be approved by the board of trustees. On May 14, 1984, Dr. Teters sent a letter to Claimant outlining the substance of their earlier meeting.

As part of the May 14, 1984, letter, Dr. Teters outlined the university’s plan concerning Claimant’s future employment. First, Claimant would remain on full salary for two years and would be given a light teaching load; second, Dr. Teters would circulate Claimants curriculum vitae (CV) to all units in Academic Affairs and to the directors of other areas for consideration for employment with or without a period of retraining; third, a proposal for preparatory period would be considered if Claimant wished to seek employment external to the university; fourth, the director of personnel would see to it that Claimant received all job announcement sheets and would also forward copies of the appropriate job announcements from other agencies and institutions; and finally, the director of personnel would write to his counterparts in other State institutions to ascertain whether they had any openings that would have been of interest to Claimant. Claimant made no objections to this plan.

Additional programs and tenured faculty were terminated along with Claimant’s program and Claimant’s tenured faculty position, including the Human Services program and several other faculty members, all of whom the university sought to accommodate along with Claimant.

On June 14, 1984, Dr. Teters sent a letter to Claimant informing him of five openings which were anticipated to occur in the School of Social Sciences during the following two years. She also reiterated her intent to circulate Claimant’s CV with her recommendation that he be given prior consideration for any openings within the following two years.

On June 15, 1984, Dr. Teters sent a memo to the dean of the School of Social Sciences indicating that Claimant and other affected faculty might be seeking appointments to the positions which were outlined in her letter dated June 14, 1984. Dr. Teters also requested that any applications from Claimant and other affected faculty members be given consideration and that no other persons should be offered positions unless the candidacy of Claimant and other affected faculty members were reviewed.

On July 19, 1984, Dr. Teters circulated Claimants CV to the Academic Affairs Conference. Dr. Teters requested that the CV be reviewed and that Claimant be given consideration for any openings in the following two years. The deans were instructed to inform Claimant directly if any position became available. The following day, the dean of the School of Social Sciences sent a memo to department chairs identifying faculty which had been adversely affected by termination of the MCRP program and expressing their desire to remain with the university. The chairs were informed that the faculty’s CVs were in the dean’s possession and available for review.

On September 18, 1984, Dr. Teters sent a memo to Claimant and other affected faculty members with an attached job announcement for the position of academic advisor. The faculty members were instructed to reply to the director of the office of Academic Services. Claimant did not follow up on the academic advisor position and received no further contact from the university regarding possible openings.

Dr. Teters and Dean Peterson continued to consider Claimant for positions and explore employment possibilities for Claimant following Dr. Teters' memo of September 18, 1984, although Claimant may not have been aware of these efforts.

In 1986, pursuant to Claimant’s internal grievance, the disciplines in which he believed he could continue to teach were canvassed by the university. No positions were identified which were either available or for which Claimant was best qualified.

A peer committee was formed in May of 1985 to review the university’s administration’s efforts to respond to all the faculty affected by the various program terminations at the time. The committee was styled the Ad Hoc Committee. The committee determined that the university’s efforts regarding Claimant were adequate.

While Claimant was not told to seek work elsewhere after his meeting with Dean Jacobitti, her memorandum clearly established that Claimant knew or should have known of the uncertainty of his position as early as May of 1983. Claimant never identified a position which Claimant believed should have been made available for him or was available and which he could fit. Had Claimant applied for the position in the office of Academic Services of which he was notified on September 18, 1984, he likely would have been hired for that position. Claimant voluntarily retired in June of 1986 and has been receiving retirement benefits ever since.

The parties are in agreement that the termination of the Claimant’s tenured position was to conform to the principles of the American Association of University Professors (AAUP). The parties disagree on what those principles are. The testimony of Dr. Peters established that the university interpreted its policies to obligate the university to be as helpful as possible, match employees with needs, perhaps provide modest retraining and special consideration for positions.

The university’s obligation was characterized by Dr. Teters as an obligation to make eveiy reasonable effort within prevailing constraints to find other employment for displaced tenured faculty depending upon the circumstances. Dr. Teters confirmed this as the view of the administration of the university pursuant to its tenure policy. Dr. Teters also indicated that if there were appropriate openings in existence which could be filled by Claimant or other displaced faculty, the university would make a special effort to try to see that the person received the position. She clearly indicated that no positions would be created.

Claimants expert, Matthew Finkin, explained the obligation, according to Claimants position, as the university making every effort to find a suitable position for Claimant if there was one for which he was qualified. He understood the obligation to include the amendments to the AAUP.

Respondent contends that the evidence established that the university was obligated to make reasonable efforts under all prevailing and applicable circumstances to attempt to find alternate employment for the Claimant within the university until he retired in July of 1986.

Claimant contends the AAUP s later adopted Recommended Institutional Regulations (RIRs) which put a duty on the university to make every effort to find Claimant a suitable position. Respondent argues the university never adopted the RIRs.

In a wrongful discharge case, the burden is upon the claimant to prove his case by a preponderance of the evidence. (Leonida v. State (1979), 33 Ill. Ct. Cl. 125.) Claimants position appears to be that because he is a tenured professor whose program was validly abolished, he can sit back, do nothing, and even fail to apply for a position. If the university does not make every effort to find him suitable employment within his department whether such employment exists or not, he can then collect $222,747.53.

We find this position untenable. We need not find that the university must make every reasonable effort or every effort because under the facts of this case, using either effort would have made no difference. When the MCRP program was validly terminated, additional programs and faculty were also terminated. There were only so many positions available which could be filled by the affected faculty. It is unfortunate, but there just was not an employment fit for Claimant within the university. As there was no employment fit, he was not wrongfully discharged. If Claimant had shown a position for which he was qualified that went to a non-tenured faculty member during the two-year period or some other evidence that he was wrongfully denied an employment fit for him, he would have been well on his way to meeting his burden. We are convinced under the facts and circumstances of this case that the Respondent made substantial efforts to place Claimant in employment within the contexts of available positions and Claimants desires. The evidence, however, is overwhelming that there just was not a position for Claimant at SIUE after the MCRP program was terminated.

We are also concerned with Claimants attempts to mitigate his damages. If we had found a wrongful discharge, which we have not, it appears from the evidence that beyond retiring, Claimant did virtually nothing to mitigate his damages. (Umbaugh v. Board of Trustees of SIU (1985), 37 Ill. Ct. Cl. 151.) Because of our decision on wrongful discharge, we need not reach the issue of lack of mitigation.

For the foregoing reasons, and because we find Claimant was not wrongfully discharged, it is the order of this Court that Claimants claim be and is hereby denied.


author: JANN, J.

text:
    (No. 89-CC-0270
    Margo Schneider, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 4, 1994.

    Skaletsky & Mannis (Scott Skaletsky, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Richard J. Krakowski, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant was injured while riding a bicycle on Illinois Route 132 near the intersection of Riverside Drive in Gurnee, Illinois, on July 28, 1987, at approximately 4:00 p.m. Claimants bicycle struck a sewer grate as Claimant was trying to avoid a protruding mirror on a passing van. The bicycle tire lodged in the sewer grate causing Claimant to flip over the handlebars. Claimant suffered injuries to her lip, teeth and general bruising and soreness to her body.

Claimant asserts that the State was negligent in designing, constructing and maintaining the sewer grate adjacent to the roadway. The openings in the grate in question run parallel to the curb rather than perpendicular.

In order to recover, Claimant must prove by a preponderance of the evidence that a dangerous condition existed, that Respondent knew of the condition and that the condition proximately caused the incident complained of. Scarzone v. State (1990), 43 Ill. Ct. Cl. 207.

Claimant was riding outside the striped roadway near the curb when she encountered the sewer grate. She testified that she moved toward the curb to avoid a passing motorist whose mirrors protruded into the area where Claimant was riding. Claimant would ordinarily be expected to ride upon the striped roadway barring unusual circumstances or the specific designations of bicycle lanes outside those used by vehicular traffic. As Claimant was acting to protect herself from other traffic, her conduct in moving to the area outside the striped roadway was reasonable under the circumstances.

There was no testimony offered by either party as to whether the white lines painted on the sides of the roadway in question were to demarcate the limits of the usable highway or to establish a lane for use by bicyclists. There was also no evidence that Respondent had notice that the area in question was extensively used by bicyclists or that similar incidents had occurred in the prior 51 years of the existence of the roadway as presently configured. Claimant asserts that because the parallel grate is open and obvious, the State is automatically on notice of a dangerous condition. We disagree. No evidence was offered to support this contention.

We find Cole v. City of East Peoria (1990), 201 Ill. App. 3d 756, 559 N.E.2d 769 (3rd Dist.), rehearing denied, June 27, 1990, most analogous on the issue of notice. In Cole, a father brought suit for injuries suffered by his daughter when her bicycle tire caught in a similar parallel sewer grate. The circuit court granted summary for the city but the appellate court reversed and remanded the case. Constructive notice was a key factor in the decision. Unlike this case, however, there was substantial evidence indicating notice to the city:

““ * “ (1) since at least 1979, the City knew of the danger of the “ ° * grates * * * and had replaced * * * broken or damaged ° 0 [grates] with [new grates] containing safety features; (2) the area of the street where the minors injuries occurred had an extended white line four feet from the curb on the side of the grate; (3) the area between the white line and the nearest curb was being used extensively by bicyclists and pedestrians; and (4) prior to the injury to the minor, the City had notice that another bicyclist had been injured when a wheel of a bicycle * ° ° had fallen through a similar grate.” Cole, 201 Ill. App. 3d at 761; 559 N.E.2d at 773.

We find the Claimant has failed to prove her case by a preponderance of the evidence and hereby deny this claim.


author: Jann, J.

text:
    (No. 89-CC-0398
    Nora M. Hanawell, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 3, 1995.

    Oliver, Close, Worden & Greenwald (Thomas E. Greenwald, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Serastian N. Danziger and Cynthia J. Wood, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Jann, J.

Facts

On August 12, 1986, Nora Hanawell was leaving work in Roscoe, Illinois, and returning home on a motorcycle when she allegedly struck a piece of concrete in the roadway, causing her motorcycle to crash resulting in injury to her knee. Hearing was held on December 3, 1993, in Chicago.

Claimant was traveling westward on Highway 75 west of its intersection with Interstate 90. She testified that she was preparing to change lanes and checked her mirrors, then over her right shoulder. As she turned her head forward and reached for the signal light to indicate her turn, she struck something on the pavement and lost control of her motorcycle. She and the motorcycle fell to the right, coming to rest on the side of the roadway. Claimant attempted to get up but was unable to walk due to injuries to her knee.

Claimants co-worker, Joyce Warden, had been traveling behind Claimant and stopped to assist her. Ms. Warden did not witness the accident. As Joyce Warden was assisting Claimant, she noticed a piece of concrete which appeared to have broken free of the roadway lying in the roadway near Ms. Wardens truck. Claimant also saw the piece of concrete at that time. It was described as being triangular, eight to nine inches long, four to five inches wide and three to four inches thick.

Claimant’s injuries resulted in hospitalization for arthroscopic and reconstructive surgeiy to her right knee. Claimant testified to continuing pain, degeneration and limitation of her normal activities due to the injury. Claimant’s medical bills to date are submitted as $8,250.15. Claimant also submits substantial'damages for lost time from her employment and potential employment.

The Law

Claimant alleges negligent maintenance and repair of the highway by the State and constructive notice of the “substantial disruption of the concrete surface” at the accident site. (Claimant’s complaint at paragraph 4.) Both Claimant and Respondent have submitted briefs.

The primary issue in this cause of action is constructive notice by the State as to the condition of the roadway on the date of the accident. Claimant admits there was no actual notice. Claimant testified that she traveled the same stretch of Highway 75 every day for six years and that the road had been in poor condition for approximately six months. An area approximately lVz miles long had been repeatedly patched. Joyce Warden and Rita Armato also testified that the roadway at the accident scene had been in poúr condition with potholes and patching for at least nine months. Neither Claimant nor her witnesses had ever filed a complaint regarding the road condition with IDOT preceding the accident in question.

Respondent presented Charles Rockwell, a communications technician at IDOT. Mr. Rockwell testified as to IDOTs procedures for recording and investigating complaints or reports of road conditions from police, public citizens and departmental personnel. Mr. Rockwell testified that no complaints were received or recorded for the location between July and September 1986.

Robert Hodgson testified that he has been employed by IDOT for 30 years. He was employed as a maintenance field engineer since 1984. Mr. Hodgsons duties included supervision of highway maintenance crews responsible for the area at issue in this cause. Mr. Hodgson testified that roadway inspections in the area are made daily to weekly depending on conditions and that at the time of the accident, patching crews were sent to fill potholes two to three times per week at Route 251 and Highway 75. He further testified that Route 75 was in “good” not hazardous condition in 1986 although it was deteriorated due to age, salt, heavy traffic and semis.

Greg Hachmaister, a highway maintainer for IDOT since 1973, testified that no complaints were received regarding an obstruction or pothole at the accident site prior to August 12, 1986. On cross-examination, Mr. Hachmaister testified when shown Claimants Exhibit 25 (a photo purportedly of the accident site, taken November 14, 1986), that there was evidence of patching and normal deterioration attributed to the age of the roadway.

We have routinely held that “the State is not an insurer against all accidents which may occur by reason of the condition of its highways.” (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 226, citing Gray v. State (1954), 21 Ill. Ct. Cl. 521.) To prevail in a negligence action, Claimant must prove, by a preponderance of the evidence, that the State breached its duty of reasonable care and that any negligence flowing from the breach proximately caused the accident and Claimants injuries. (Allen v. State (1984), 36 Ill. Ct. Cl. 242, 243-44, citing Laine v. State (1977), 32 Ill. Ct. Cl. 10.) It is the duty of the State to exercise reasonable care in the maintenance and care of its highways in order that defective and dangerous conditions likely to injure persons lawfully on the highways shall not exist. (-., citing Moldenhauer v. State (1978), 32 Ill. Ct. Cl. 514.) The exercise of reasonable care requires the State to keep its highways in “reasonably safe condition” by using reasonable diligence in such maintenance. (Scroggins, supra, at 227.) Reasonably safe does not mean perfect as held in Allen, supra, at 244.

“[T]he Court has never held that all State roads must be bump free. To hold that they must, would be to make the State an insurer.” Id, at 247.

Allen involved a very similar circumstance to that herein. The claimant in Allen asserted that a patched area of Route 57 about one-half mile from its intersection with Route 45 caused him to lose control of his motorcycle and resulted in injuries. Claimant asserted the patched area was a defective condition of which the State had notice and that the roadway was not in a reasonably safe condition. The Court rejected claimant Allens arguments on the basis of uncontroverted testimony by respondents witness, an IDOT field maintenance technician, who described IDOTs policies regarding patching and patching materials. The witness stated that the patched area in question was acceptable within State highway maintenance standards. Similar testimony was related in the case at bar and even Claimant stated that she had observed regular maintenance and repair of potholes, sometimes within one day of her noticing a pothole. She stated that repairs sometimes took from three days to three weeks.

The mere fact that a defective condition existed, if, in fact, it did exist, is insufficient to constitute an act of negligence by the State. (Palmer v. State (1964), 25 Ill. Ct. Cl. 1, 2.) “A claimant must show that the State had actual or constructive notice of the defect in order to recover on a negligent highway maintenance claim.” Scroggins, supra, at 227, citing Pigott v. State (1968), 26 Ill. Ct. Cl. 262.

Claimant asserts that the State was required to do major reconstruction of the road surface in order to make the roadway safe for travel. We disagree. To require reconstruction of the roadway because of its age or repeated patching alone would be to require the State to become an insurer of perfect road conditions.

To demonstrate constructive notice, Claimant must show by a preponderance of the evidence that a defect was of such a nature that the State should have known of its existence in the exercise of due diligence. (Wagner v. State (1978), 32 Ill. Ct. Cl. 50, 55.) To prove constructive notice, Claimant must show that the “defect was substantial enough and * * * existed for such a length of time that reasonable persons would conclude that immediate repairs should be made e * V’ (Aetna Casualty v. State (1984), 37 Ill. Ct. Cl. 179, 181.) Claimant has not demonstrated that the alleged piece of concrete which caused the accident existed for any length of time. It has not been shown with certainty that the piece of concrete was actually struck by Claimant or the direct cause of the accident.

If we accept the premise that the loose piece of concrete caused Claimants accident, it appears most analogous to a line of cases involving debris on the roadway. In Wagner v. State (1978), 32 Ill. Ct. Cl. 50, a motorcyclist skidded on gravel on an exit ramp and sustained fatal injuries. In Baker v. State (1989), 42 Ill. Ct. Cl. 110, the driver of an auto hit gravel on a highway exit ramp. In both cases the Court found that lacking evidence of the length of time the debris was upon the roadway, the State could not be charged with constructive notice of debris constituting a dangerous condition.

Claimant has cited a number of cases to support her case involving awards made on the basis of failure to warn of dangerous conditions. We find these cases inapposite as Claimant has made no allegations of failure to warn in her complaint.

Respondent has presented evidence of at least weekly maintenance of the roadway in question with crews removing debris and patching potholes. No evidence was presented to indicate that the patching was done in a defective manner or inconsistent with IDOT standards.

We find Claimant has failed to prove by a preponderance of the evidence that the area of the highway in question was unreasonably dangerous and unfit for vehicular traffic due to negligent maintenance. Claimant has failed to prove constructive notice of a dangerous condition and has admitted the State had no actual notice of the alleged dangerous condition.

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


author: Raucci, J.

text:
    (No. 89-CC-0662
    Randall Sharp, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 4, 1995.

    Thill, Kolodz & Favaro (Scott Barber and Thomas J. Kolodz, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Thomas L. CIECKO, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This cause comes before the Court on a tort claim filed by Claimant for damages arising out of Claimants operation of a motorcycle on September 4, 1986, on State Route 14 in Des Plaines, Illinois. Claimant came in contact with a metal crash attenuation device attached to a concrete divider separating opposing lanes of traffic. He alleges that the metal crash attenuation device was in a dangerous and unsafe condition as a result of previous accidents and as a result of improper care and maintenance. A protective flange that “feathers” into the concrete was allegedly not present.

The principal issues are (1) whether the State had actual or constructive notice of a dangerous or unsafe condition, (2) whether the metal attenuation device was bent out into the left lane, and (3) whether the slipping of Claimants rear wheel as a result of going over a foreign substance was the proximate cause of the accident.

On September 4, 1986, a dry and partly cloudy day, Claimant was operating his motorcycle in a southeasterly direction on Route 14 in the City of Des Plaines. As he entered an S-curve, the road went slightly uphill. The S-curve had a concrete median dividing the opposite lanes of traffic and at the end of the concrete was a metal crash attenuation device.

Traveling at about 25 miles per hour in the right lane as he entered the curve, the back wheel “slipped out” after rolling over what he believed (and in his notice of his intent to file an action on account of personal injuries, described as) an “oil patch.” He corrected his angle and came up [right]. He then moved from the right lane into and beyond the left lane, brushed the median scraping his little finger and elbow, and while trying to get back into the left lane, his left leg was hooked by the metal crash attenuation device. The leg was broken.

Claimant testified that the metal crash attenuation device was not, at the time of the accident, attached to the concrete median. He testified that on the date of the accident, the metal crash attenuation device, rather than being attached, was bent out into the roadway. Claimant suffered a compound fracture of the tibia and fibula, a cut below his knee and nerve damage to his left foot, and particularly the toes. Two metal rods were surgically inserted into his leg, and he incurred in excess of $11,000 in medical expenses. He was in constant pain for three months after the accident, and still experiences pain in his leg and foot.

Claimant had traveled the road previously, and had noticed the alleged defect approximately eight times from April to September 4, 1986. Claimants friend, Lawrence Miller, testified that he had observed the defect in March 1985 and in August 1986. Claimants father testified that the day after the accident he observed the defect.

Joseph Kostur, Jr., who at the time of the accident was the district safety and claims manager for the Illinois Department of Transportation, testified both as a witness for Claimant and for Respondent. He testified that the feathered flange is an “integral part” of the crash attenuation device, and that when you have “a concrete barrier wall, it is a definite, absolute, fixed hazard to oncoming traffic °

Kostur further testified that to the best of his knowledge, after investigation, he could not find records that there was any problem with the crash attenuation device for a period of six months prior to the accident. He further testified that he had a memorandum dated December 28, 1988, which indicated that the device had been rebuilt on April 20, 1986.

The State is not an insurer of the safety of users of its highways. (Cotner v. State (1987), 40 Ill. Ct. Cl. 71.) In order for Claimant to prevail, he must prove that the State had actual or constructive notice of the dangerous condition. (Norman v. State (1982), 35 Ill. Ct. Cl. 693.) “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.) Claimant, in order to prevail, must also show that the alleged defect was the proximate cause of his injury. Stanley v. State (1986), 39 Ill. Ct. Cl. 107.

Claimant has failed to establish that the State had actual or constructive notice of the alleged defect. The evidence establishes that the affected area had been rebuilt on April 20, 1986, and the record does not establish that any actual notice was given to the State thereafter of any defect. Since the roadway was maintained by the City of Des Plaines (while the median area was the responsibility of Respondent), we find the passage of time from April 20, 1986, until September 4, 1986, did not establish constructive notice of this particular defect. Because we find that the State did not have notice of the defect, it is not necessary to determine whether the defect actually existed.

Claimant has failed to meet his burden as to proximate cause. The evidence establishes that Claimants rear wheel “skidded out” and caused him to lose control immediately prior to the breaking of his leg. He testified that he believed he hit an oil patch, and in his notice so alleged.

The claim should be dismissed.

It is therefore ordered, adjudged and decreed that this claim be, and it is hereby, dismissed with prejudice.


author: Sommer, C.J.

text:
    (No. 89-CC-0775
    Charlotte Duprey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 30, 1994.

    Lowenstein, Hubbard, Smith & Kagawa (Carlton M. KAGAWA, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Carol J. Barlow, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

The Claimant seeks damages from the State of Illinois for injuries she received as a result of the States negligence in maintaining a guardrail on a bridge. The guardrail toppled over when the Claimants vehicle collided with the rail; and the Claimants vehicle fell into a river.

On November 23, 1986, at approximately 1:00 a.m., the Claimant, returning from a birthday party in Hegeler, Illinois, was driving her car north on Vermilion County Road 680, one mile east of Georgetown, approaching the East Bridge, which was maintained by the State. The Claimant testified that it was raining hard. As she rounded a curve and approached the bridge at about 30 m.p.h., she saw two dogs run in front of her. She further testified that she swerved and slightly braked her car to avoid the dogs. She then lost control of her car, and it collided with the south guardrail of the bridge. The car then was deflected across the bridge into the north guardrail. Upon impact, the north guardrail toppled over the side of the bridge. The car then went off the north side of the bridge, hitting its rear bumper and landing upside down in the river 28 feet below.

The first officers at the scene were Georgetown officer Estes and Ridgefarm officer Rouse. The reporting officer, deputy Kevin Rollins, of the Vermilion County Sheriffs Department, arrived at approximately 1:30 a.m. When deputy Rollins arrived, he immediately went to the car, finding officer Rouse propping the Claimants head out of the water to let her breathe. The officers waited for the ambulance before moving the Claimant. Deputy Rollins testified he observed the smell of alcoholic beverage within the passenger compartment and on the Claimant. He marked the police report under apparent physical condition, “Had Been Drinking.” It is noted that the medical bills indicate a blood alcohol level test was administered at the hospital, but the record is silent as to any result of this test. In direct testimony, the Claimant denied having had anything alcoholic to drink at the party.

An ambulance took the Claimant to the emergency room at St. Elizabeths Hospital in Danville. The Claimant was comatose and required placement in a trauma care unit. She was transferred to Burnham Hospital in Champaign, where she remained in a coma until December 23, 1986. Two weeks later the Claimant was transferred to Mercy Hospital for rehabilitation therapy for four weeks. After her release, she continued therapy while living with her daughter until the Claimants financial situation made the therapy impossible. Currently the Claimant lives with her brother in a trailer provided for her by her daughter.

The Claimants diagnosis after the accident was that she had suffered a closed head injury described as subdural hematoma on the left hemisphere, and probable occipital lobe infarction (stroke of the occipital lobe), third cranial nerve palsy, ptosis of the left eyelid, partial collapsed left lung, and depression. Her daughter, Patty True, described the Claimant as having “a big gash in her head, great big hole in her head.”

Upon discharge the Claimant’s diagnosis was of anoxic encephalopathy, which means there is a brain injury and brain damage from lack of oxygen. Since the accident, she suffers from long and short term memory loss. She continues to have soreness and discomfort in her right side, as well as droopiness in her left eye. She has difficulty maintaining stability while walking. She is unable to go out on her own. She must rely on others. Otherwise, she testified in November of 1992 that she was able to take care of herself.

Prior to the accident, the Claimant supported herself as a LPN, taking care of VA patients in her home, earning approximately $25,000 to $30,000 per year. She can no longer support herself, and lives on $426/month disability benefits from Social Security. As a 60-year-old woman, the Claimant’s life expectancy is 22.4 years.

The Claimant’s statements of the accident at the trial were conflicting. She testified at the trial on August 21, 1991, under cross-examination, that she was driving in the left lane of the two-lane road approaching the bridge. Then under re-direct, she testified she was in the right lane. She said the dogs were on the left side of the road in front of her and that she swerved to the left to avoid them; but later under re-direct, she stated she swerved to the right. The Claimant stated that she does not remember everything about the accident, or much of her life before the accident as a result of the memory loss she has suffered.

The East Bridge was constructed in 1922; and the guardrail in question was added in 1964. The Claimant called Dr. Robert Mains, a specialist in structural engineering, to testify at trial. Dr. Mains stated his opinion that the guardrail did not meet the American Association of State Highway Officials’ (AASHO) standards for 1965. The guidelines state the rail design should withstand a 10,000 pound impact. That would equal a 35 to 37 m.p.h. speed by the Claimant s car. The Claimant’s rate of spéed was calculated by both Dr. Mains and a reconstruction specialist, Alex Sorton, to be about seven m.p.h. At the seven m.p.h. impact, the railing gave way without shearing or bending the bolts which held it in place. Dr. Mains stated this was evidence that the railing was not properly anchored and was in need of repair.

The bridge maintenance engineer in 1986 was David Sebright. He testified that he, along with a co-inspector, Thomas Kelly, inspected the bridge in February of 1986. The inspection of the railing showed that the concrete curb had deteriorated and that the railing was loose, The railing shook when pushed by hand. He gave the railing a rating of two, meaning it did not meet current acceptable standards. A rating of one would have meant no railing existed. Any railing built in the early 1960s would not meet current standards. The requirement on new construction of bridges is a crash-worthy rail.

The current bridge maintenance engineer is Jerry Gearlock, who testified the bridge was on a five-year replacement plan. The bridge was actually replaced in 1990. Prior to replacement, the bridge was inspected every year. Mr. Gearlock also stated that the purpose of the railing was for delineation and protection of traffic to keep it from running off. He commented on the AASHO guidelines, stating that the guidelines cover designing new bridge rails and reconstruction contracts, but they do not govern maintenance activities.

The Claimant presents as her basis for recovery that the State was negligent in its maintenance of the bridge guardrail and is therefore liable for her injuries. The State proposed two affirmative defenses: the first that the Claimant was the sole proximate cause of her injuries; and the second, in the alternative, the Claimant was comparatively negligent.

In order for the Claimant to recover against the State, she must prove the State owed her a duty, and that duty was breached by a negligent act or omission, and that such negligence was the proximate cause of her injuries. McCoy v. State (1975), 37 Ill. Ct. Cl. 182.

The testimony of the bridge maintenance engineer, Mr. Sebright, is evidence that the guardrail and the curbing holding the guardrail were in poor condition. The Claimant has labeled this a dangerous condition, and attempts to prove that because the State had actual knowledge that the railing had received a poor rating nine months before the accident that this is evidence of negligence on the part of the State. To be held liable the State must have actual or constructive notice of a dangerous condition and permit it to exist without warning the traveling public. (Clark v. State (1974), 30 Ill. Ct. Cl. 32.) A dangerous condition can mean a condition unfit for the purpose which it was intended. (Allen v. State (1984), 36 Ill. Ct. Cl. 242.) Mr. Gearlocks testimony that the purpose of the rail was for delineation and protection of traffic to keep it from running off suggests that the bridge rail did not fulfill its purpose since the Claimants motor vehicle was allowed to run off.

The established law is that when a highway or bridge design standard is altered, existing structures built under older design standards do not have to be altered. (Hodge v. State (1981), 35 Ill. Ct. Cl. 50.) Put another way, it is not negligence for the Department of Transportation to continue to use old highways and bridges, even if they know their design is not as safe as modern designs.

This Court has ruled that failure to properly maintain older roads and bridges can be negligence on the part of the State. The numerous pothole cases in which this Court has made awards are examples of failures of maintenance. For an example, see Stills v. State (1989), 41 Ill. Ct. Cl. 60. This Court also has found that failure to maintain guardrails can be negligence on the part of the State. (Kolski v. State (1976), 31 Ill. Ct. Cl. 307; Keller v. State (1982), 36 Ill. Ct. Cl. 99.) The above cases involved damaged guardrails that were not repaired by the Department of Transportation. The standard is that liability can only be imposed where a travelers deviation is foreseeable; and when the deviation can be deemed a normal incident of travel. (Keller at 103.) In the claim before us, the bridge was a narrow two-lane curving bridge built in 1922.

We believe that the case of Michalak v. County of La Salle (1984, 3rd Dist.), 121 Ill. App. 3d 574, 459 N.E.2d 1131, is instructive in the present claim. In the Michalak case, the motorist impaled his automobile on the end of a guardrail protecting a curve. We believe that the statements of the Court in Michalak are equally applicable in the present claim.

° ° The guardrail stands as a warning of danger, a guide to the eye in keeping to the roadway, and a barrier of sufficient strength to withstand the ordinary weights and forces to which it is subjected. ° ° 0 It is a question of fact whether a guardrail along a highway need be suitable merely as a warning, or might suffice physically to prevent vehicles from running off tire highways into places of danger. [Citation.]”
° ° A duty may be owed to a motorist who deviates from the ordinary course of travel if such deviation was reasonably foreseeable. Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721.”
"We believe existence of a guardrail at tire location in question concedes the foreseeability that motorists would deviate from the ordinary course of travel in the direction of the guardrail. If motorists never deviated from the traveled portion of the highway, then the guardrail itself would not be necessary.” 121 Ill. App. 3d at 576.

As the Illinois Supreme Court has stated: “A duty [is] owed where the occurrence involved is reasonably foreseeable.” Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617, 619.

As the Claimant has argued and the Michalak case states, the presence of a guardrail concedes the foreseeability of motorists deviating from the ordinary course of travel.

Therefore, we find that the State owed the Claimant a duty, and that duty was to keep the guardrail in reasonably good condition, though not to the AASHO standards on an old bridge. A guardrail that fell into the river under the bridge when struck at seven m.p.h. was not in reasonably good condition. Additionally, the State knew of the condition of the guardrail, and rated it just above having no guardrail at all. We find the condition of the bridge rail to be a particularly egregious example of lack of maintenance. Therefore, we find the State breached its duty to the Claimant. However, this claim has been decided on its facts only and does not lay down a general rule that all old bridge rails must be maintained in a condition greater than required when built or found after some years of aging.

The Claimant had a duty to use due care and to keep her vehicle under control. Harris v. State (1986), 38 Ill. Ct. Cl. 176, 178. Howell v. State (1959), 23 Ill. Ct. Cl. 141.

The Claimant testified that she could see “not very much,” only 20 to 30 feet, ahead of her due to the hard rain. She testified that she was traveling approximately 30 miles per hour when she saw the dogs come onto the road in front of the bridge. The Claimant was traveling 44 feet per second at 30 miles per hour. Yet, she testified that she could see only 20 to 30 feet ahead. A driver is required to adjust his or her speed to that which is reasonable and proper when a special hazard exists due to weather conditions. (625 ILCS 5/11 — 601.) We find that the Claimant was driving too fast for conditions as she approached the bridge. She had less than a second to react to any sudden hazard that might occur. By putting herself in such a position, the Claimant failed to use due care and keep her vehicle under control.

The fact that the Claimant was confused in her testimony could be resultant from her memory impairment due to her injuries. We attach little weight to this confusion.

Additionally, we note that the reporting officer, Deputy Kevin Rollins, noted the presence of alcohol in the Claimants automobile and on the Claimant. Even if there is evidence of alcohol having been drunk, a Court may not draw the conclusion that the driver was impaired without corroborating evidence. Wagner v. Zbonzak (1982), (2nd Dist.) Ill. App. 3d 268, 443 N.E.2d 1085.

The following discussion took place at the trial:

Commissioner: "What you are telling me is there is medical records going in but you’re not stipulating that the blood alcohol result whatever it may be is the result and you are waiting for the State to prove it up.”
Mr. Kagawa (Claimants attorney): “Right”
Commissioner: "Which I expect the State is going to do at some point in this case.”
Mr. Rock (Assistant Attorney General): “Exactly”

No blood alcohol level was ever introduced into evidence by the State. Thus, this Court cannot find that the Claimant was impaired by alcohol.

Additionally, no brief was filed by the State, even though one extension of time was granted to do so. The Claimant did file a brief.

The Michalak case states that (with the advent of comparative negligence) “* * ” courts have been less willing to label an actors conduct as a remote cause or condition of the injury.” (121 Ill. App. 3d at 578.) Thus, we find that the Claimant’s driving and the condition of the bridge rail were both proximate causes of the Claimant’s injuries.

No party or persons in this entire proceeding pointed out the significance of the fact that the accident in question occurred on November 23, 1986. Modified comparative negligence became the law on November 25, 1986; thus, as the date of the accident is controlling, damages are to be figured on a pure comparative negligence basis.

In apportioning the negligence we find the Claimant’s conduct to have been 2/3 of the proximate cause of her injuries.

The Claimant had medical expenses of $59,811.53 which were testified to as being reasonable and necessary by Dr. Richard A. Rak.

The Claimant’s injury is clearly permanent and has deprived her of her livelihood (which was not claimed), and her lifestyle. She has had pain and suffering in the past, present, and future. The Claimant is claiming $100,000 for pain and suffering and permanency. We will award that amount. Therefore, the Claimants total damages are $159,811.53. After deducting for her negligence, the Claimants damages are $53,270.51.

The Claimant has requested costs. The State of Illinois is liable for costs only if the statute awarding costs specifically and clearly names the State of Illinois as liable for costs. (I & D Pharmacy, Inc. v. State (1984), 37 Ill. Ct. Cl. 37, 42.) The general statute that enables the awarding of costs to Claimants who recover damages does not name the State of Illinois as being subject to the payment of costs. 735 ILCS 5/5 — 108.

We, therefore, award the Claimant $53,270.51 in full and complete satisfaction of injuries she suffered when her automobile went through a loose bridge rail on the State-maintained East Bridge on Vermilion County Route 680 on November 23,1986.


text:
    (No. 89-CC-1759
    Richard Medder & Sally Medder, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 4, 1994.

    Harry J. Sterling, P.C., for Claimants.
    Roland W. Burris, Attorney General (Carol J. Barlow, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This claim comes before us on the Respondents motion to dismiss. Oral argument was held before the full Court on November 9,1993.

The Claimants owned two residential properties which they were renting on month-to-month leases.

In May of 1986 the Illinois Department of Transportation sent notices to the tenants. These notices stated that the Department of Transportation would be acquiring the properties. The notices stated that construction work would begin on or about June 30, 1986. The notices also stated that the tenants would not be required to move before 90 days; and when they were to vacate they would be sent a 30-day notice. In fact, the tenants moved in June; while the property was not finally taken until December of 1986.

The Claimants are alleging tortious interference with the lease contracts by the Department of Transportation. The Claimants seek damages of lost rent from June to December and utility costs incurred by them.

The Court previously has decided an identical claim (Buetow v. State (1992), 44 Ill. Ct. Cl. 93.) The same notices were sent in Buetow; and the property was not acquired until about six months after the tenants had moved. The only difference between the Buetow claim and the present one is that the Buetow claim concerned a 33-unit apartment building.

The claim in Buetow was denied because, “The record does not support a finding of a lack of good faith on the part of IDOT.” Buetow at 95.

One element of proof necessary for establishing an intentional interference with a contract is that the breach be unjustified or in bad faith. We find no bad faith on the part of the Department of Transportation in this claim. The Department simply followed the procedures established by State and Federal law and regulations.

Though the parties in the present claim did not cite Buetow and concerned themselves whether a contract really existed between the Claimants and the tenants, we find that this Courts ruling in Buetow is controlling.

It is therefore ordered that the Respondents motion to dismiss is granted; and that this claim is dismissed.


author: Patchett, J. Patchett, J.

text:
    (No. 89-CC-1762
    Jun Hardeman, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 8, 1995.

      Order on petition for rehearing filed May 2, 1995.

    Dennis Feinberg, for Claimant.
    Jim Ryan, Attorney General (Colleen McCloskey VON Ohlen, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

The Claimant seeks recovery for personal injuries sustained when a chair located in the Secretary of States office collapsed as he attempted to sit in it.

On the afternoon of July 11, 1988, the Claimant appeared at the Office of Secretary of State, Administrative Hearing Facility, at 188 West Randolph, Chicago, Illinois. Mr. Hardeman was there to participate in a hearing regarding his driving privileges. After the receptionist instructed him to find a seat in the waiting area and complete forms, he proceeded to the chair in question. The chair was a side-entry type chair which was equipped with a retractable desk top that could slide down to the side of the chair, or it could be pulled up as a desk. As Mr. Hardeman approached the chair, he pulled the desk top up to the upright position. He testified that he did not notice any evident defect in the chair. He sat down on the chair, and it collapsed. An unidentified young man helped Mr. Hardeman out of the chair and onto his feet.

Mr. Hardeman testified that after the fall, he experienced warmth and then pain in his back. He declined the receptionists offer to call paramedics, but he was unable to proceed with the hearing. He then proceeded to the Michael Reese Health Center where he underwent a physical exam and x-rays. He was prescribed medication.

The Claimant continued to experience back pain and returned to the doctor on July 9, July 25, August 29, and September 2, 1988. During the visit of September 2, 1988, the doctor prescribed physical therapy. He attended three sets of physical therapy in October 1988 and January and September 1989.

In January 1989 Mr. Hardeman returned to his doctor, who prescribed continued therapy and limited the Claimants activities. His doctor noted that the Claimant had made progress by February 1990, and he discontinued treatment by 1991. Mr. Hardeman testified that he still experiences stiffness and occasionally wears a back brace. He takes aspirin for pain, and he has generally limited his physical activity since the accident.

Mr. Hardeman testified that he had a bullet removed from his calf in 1979. In 1983 he had back pain for which he was hospitalized. At that time, he received an injection in his back, therapy, and traction. He testified that from 1983 to July 1988 he did not suffer any back pain.

In support of his claim for lost wages, he testified that during the summer of 1988 he was working as a playground supervisor, earning $8.75 an hour. He testified that he incurred a loss of less than $500. In addition, Mr. Hardeman testified that he was teaching a four-hour-a-day GED program and he incurred a loss there of $400.

During the 1988-1989 school year, Mr. Hardeman was assigned as a substitute teacher in a Chicago public school. He admitted that he was not off pursuant to a doctors order or recommendation.

It should also be noted that Mr. Hardeman did not produce any documentation in support of his wage loss claim.

Ms. Eileen Foxman, secretary to the director for the Department of Administrative Hearings, testified for the Respondent. Her duties included property control liaison. She was responsible for the inventory of the State property and the removal of damaged property.

Ms. Foxman testified that when a report of damaged furniture was received, the item was removed and transported to Springfield. Ms. Foxman had no record nor knowledge of any other chairs collapsing. In addition, she did not know of any reports of a defective chair at the location of this incident.

The Claimant failed to produce any evidence which would indicate that the State had notice of a defect in the chair. The burden is on the Claimant to produce such evidence. (Divis v. State (1969), 27 Ill. Ct. Cl. 135, 137.) The Claimant has the burden of establishing that the Respondent had notice of the defect. The Respondent is not required to plead lack of notice as an affirmative defense.

The State is not an insurer of the safety of persons visiting its buildings. Rather the State owes a duty of reasonable care in maintaining the premises. (Berger v. Board of Trustees of University of Illinois (1988), 40 Ill. Ct. Cl. 121, 124.) The Claimant bears the burden of establishing by a preponderance of the evidence that the State breached its duty of reasonable care, that the breach proximately caused the injury, and that the State had actual or constructive notice of the dangerous condition. Secor v. State (1991), 44 Ill. Ct. Cl. 215, 217.

Here there was no evidence presented to the Court that the State had any actual or constructive notice that the chair was in a dangerous or defective condition.

Therefore, the Claimant has failed to meet his burden of proof as to the issue of notice. This claim is denied.

ORDER

Patchett, J.

This cause comes before the Court upon a petition for rehearing filed by the Claimant. The Court previously denied this claim in an opinion filed on February 8,1995.

In his petition for rehearing, the Claimant fails to state any grounds which would be the basis for granting a rehearing. The Court has reviewed the file and the opinion and sees no reason to deviate from its previous decision.

Therefore, the motion for rehearing is denied.