author: Poch, J.

text:
    (No. 78-CC-1655
    Ernest T. Calvert and Kenneth E. Williams, Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 23, 1985.

    McGlynn & McGlynn (James McGlynn, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises from an automobile accident which occurred on January 23,1978, in an intersection of old Route 3 and Route 3 near the railroad depot north of Cairo, Illinois.

Claimants were passengers in a 1968 vehicle being operated by a Mr. Crisman. The accident occurred when the vehicle containing the Claimants attempted to make a left turn from Route 3 onto old Route 3 and was struck by an oncoming vehicle.

Prior to the date of the accident there had been a substantial snowfall of some 10 to 12 inches which had accumulated over a period of three to four nights and had caused the State to plow the area several times. The evidence showed clearly that there were large piles of snow at either side of the median access, approximately five feet deep and over 20 feet long.

These piles of snow hindered the driver of the vehicle containing the Claimants from seeing oncoming traffic as he approached the intersection to make his left turn. The driver testified that he slowed his vehicle down to a barely forward movement and crept out into the oncoming traffic lane to see if there were any approaching vehicles. When he did so, a vehicle approaching at a high rate of speed struck the automobile of the Claimants. As a result of this collision, the Claimants were seriously injured.

Claimants argued that the State was negligent in piling the snow around the median in question in a manner which obstructed vision. Claimants further argued that this negligence proximately caused the injuries sustained by the Claimants. Respondent argues that the piling of snow as occurred in the present case was not negligent; and even if it was, the statement of the Illinois Supreme Court in Briske v. Village of Burnham, 397 Ill. 193, is applicable to the present case:

“If a negligent act or omission does nothing more than furnish the condition making an injury possible, and such condition, by the subsequent independent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury.”

This Court has held on many occasions that the State is not an insurer against all accidents which occur on its highways, but it does have a duty to keep its roads in a reasonably safe condition. (National Bank of Bloomington v. State (1980), 34 Ill. Ct. Cl. 23.) This Court has also held that the State of Illinois is chargeable with only maintaining its roads in a reasonably safe condition for the purpose for which they are intended and that Claimant must, in order to prevail, prove by a preponderance of evidence that Respondent breached its duty and that breach proximately caused the injuries to Claimant. Louis v. State (1983), 35 Ill. Ct. Cl. 741.

The Louis case arose from a factual situation which was similar to the case at bar. In Louis, an intersection accident took place when, due to the State piling snow 10 feet high on a median, the driver of a vehicle making a left turn crept into an oncoming lane and was struck by another vehicle. The court concluded in the Louis case that the State had attempted to maintain its highways in an open condition. Furthermore, in consideration of the amount of snow involved, the State did not have an opportunity to remove the snowbank created by piling the snow in an area obstructing the view of motorists. In the instant case, Claimant offered no evidence that the State of Illinois had ample opportunity to remove the snowdrifts constituting the obstruction to the views of the motorists between the accumulation and the time of the accident in question. Respondent must be given a reasonable length of time after highways have been cleared to remove obstructions such as those in this case. Louis v. State, supra. Holding the Respondent responsible for this accident would place the State in a position of being an insurer of all accidents occurring upon its highways and that is not the law of the State of Illinois. See also Aetna Insurance Co. v. State (1981), 34 Ill. Ct. Cl. 167.

For the foregoing reasons, we conclude that the Claimant’s claim in this case cannot be allowed. Because this matter was disposed of in the foregoing manner, we do not deem it necessary to review the other issues raised in the briefs.


source: Caselaw Access Project

author: Roe, C.J. Roe, C.J. Holderman, J.

license: Public Domain

text:
    (No. 79-CC-0621
    Karl Noltemeier, Claimant v. The State of Illinois, Respondent.

      Opinion filed June 15, 1981.

      Opinion on rehearing filed January 11, 1983.

      Order filed January 30, 1986.

    Cornfield & Feldman (Jacob Pomeranz, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim is based upon the violation of Claimant’s employment rights under the State Personnel Act (111. Rev. Stat., ch. 127, par. 63 et seq.), as found by the Illinois appellate court decision, in that Claimant was wrongfully laid off on November 30, 1973, and reinstated on January 1, 1978, by the Department of Mental Health and Developmental Disabilities.

It has been stipulated that during the time involved Claimant would have received a gross salary of $78,355.40, subject to additions and deductions as required by law. The areas of disagreement in this case concern whether or not Claimant is entitled to any credit or payment for:

(i) vacation days in 1974 and 1975;
(ii) personal leave days for 1974 through 1977;
(iii) holidays for 1974 through 1977;
(iv) the costs of medical and hospitalization insurance during the layoff period;
(v) interest from October, 1976, through April, 1979;

and whether or not Claimant’s income from private practice should be used as a setoff against any award.

As to the issue of vacation days, we note that Claimant has been credited by the Department with 40 days’ vacation time, for the years 1976 and 1977 upon his return to active employment status. The claim is for compensation for days allegedly accrued in 1974 and 1975. We have recently decided this issue in Shaw v. State (1981), 34 Ill. Ct. Cl. 126, and in accordance with that decision find that Claimant is not entitled to any compensation for the vacation days allegedly accrued in 1974 and 1975.

Although the issues of compensation for personal leave days and holidays were not present in Shaw, supra, we find the reasoning in that case also applies to the case at bar. Rule 3 — 125, dealing with “leave for personal business,” states in part,

“Accruals or credit of permissible time off for personal leave shall not be carried over the following calendar year, nor shall any employee be entitled to payment for unused personal leave upon separation

No provision exists for liquidation of such days other than actually taking the time off. Therefore unused personal leave days expire at the end of each calendar year. To grant compensation for such time would be putting Claimant in a better position than if he had actually worked during the period. By denying Claimant said compensation he is still getting what would be due him. The same reasoning applies to compensation for holidays.

We reserve judgment on the issue of whether or not Claimant is entitled to medical and hospitalization insurance and direct that the Clerk of the Court of Claims set this claim for oral argument at the next session of the Court in Chicago.

The next item of damages Claimant seeks is interest from October 1976, through April 1979. It has long been held that the State of Illinois is not liable for the payment of interest or attorney fees in the absence of a statute expressly subjecting it to such liability. (Mooney Construction Co. v. State (1982), 35 Ill. Ct. Cl. 116; Caymen Associates Ltd. v. State (1980), 33 Ill. Ct. Cl. 301.) Petitioner cites Ill. Rev. Stat., ch. 77, sec. 7 as authority. We do not consider said statute to have any applicability to claims against the State. No express authority was cited by either party and we can find none. We also take notice of the fact that various bills have been introduced in the legislature to subject the State to the payment of interest on awards made by this Court in recent years and all have failed. Claimant’s claim for interest is hereby denied.

The final issue of damages involves Claimant’s efforts to mitigate the loss of his salary during the period of his wrongful discharge.

In his brief Claimant acknowledged that he had a duty to mitigate and relies on the record as proof that he met that obligation. The position of Respondent is basically twofold. First, Respondent contends that Claimant’s efforts were insufficient. Second, it argues that Claimant should not have limited his efforts to the area of clinical social work.

It is well settled that State employees must do all in their power to mitigate their losses arising out of their being wrongfully discharged. (Nagle v. State (1975), 31 Ill. Ct. Cl. 74; Stevens v. State (1977), 31 Ill. Ct. Cl. 519.) If an employee obtains other employment after a wrongful discharge, he is ordinarily chargeable with the income from that employment, so that his damage claims against his former employer are reduced by what he makes in his new job. The reasons behind this principle include the fact that the wrongful discharge has ordinarily given him the free time to accept a new job, which becomes a substitute for the old, and the feeling that even though the employee was not at fault in the discharge he should not recover a windfall for being idle among other reasons.

However, there often exists the situation where, as in the case at bar, an employee held more than one job at the same time. Upon being wrongfully discharged he continues to work at the second job. Similarly, an employee may obtain a new job following the wrongful discharge that is not a substitute for the old job but one which he could also have held while working at the old job. In both such instances the employer is not entitled to a credit for income from the second job because the income it produces was not available as a result of the wrongful discharge. See People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 205 N.E.2d 470.

The employer is entitled to a credit, not only for income from jobs the employee actually obtained in substitute for the old job, but also for appropriate income he could have obtained by reasonable effort. The employee is not charged with any income he could have earned but only income he could have earned in similar employment with similar conditions of employment and rank and in the same locality. Where, however, the employee actually earns wages, the employer is credited whether those wages came from similar employment or not; but where the employer seeks a credit for what the employee could have earned, the similar employment and locality considerations apply. Such conditions are, of course, merely factors in judging the reasonableness of the employee’s efforts to minimize his damages and they do not form an absolute rule.

In the case at bar, Claimant was employed by the State as a clinical social worker. Upon becoming laid off he testified that he sought other employment similar to the position he held with the State. He stated he wrote 6 to 10 letters to employers in the same geographic area and one to a facility in Indiana. He also made approximately 15 visits to potential employers, mostly in 1974 and 1975. He checked out help wanted advertisements in professional journals. He was registered with the State of Illinois job service throughout the layoff period but only checked with them during the time he was being paid unemployment compensation. Claimant was unsuccessful in obtaining another job although he turned down no offers.

Both during his employment with the State and subsequent to his being laid off he was engaged in private practice on a part-time basis. Upon his discharge he claims to have made efforts to expand his practice. In this attempt he stated that he notified approximately 5 to 10 people who were his usual referral sources that he had more time available. This was done right after his layoff and thereafter once every four to six weeks.

With respect to Claimant’s private practice, it is Respondent’s position, as stated in its brief, that Claimant’s entire practice income must be included as a setoff. Respondent asserts a novel argument that Claimant was a “professional” and, because he is such, his employment should be viewed as including both his job with the State and his private practice. Essentially Respondent would have us draw no distinction between the two jobs but regard them as one — that of Claimant’s “profession.” The distinction we pointed out previously between an old job and a concurrent second job or a nonsubstitute new job would be thus inapplicable to the case at bar. Respondent would limit that concept to occupations it refers to as “trades” as opposed to professions. Respondent reasons that engaging in a profession involves certain economic risks, basing income on intelligent risks such as those incurred in a recession. Conversely a professional can also reap economic benefit from a large number of “cases,” regardless of economic conditions. Success is usually based on the relative degree of skill of a professional and to allow a professional to benefit as a tradesman, Respondent concludes, would be a derogation of the “reasonableness” concept involved in mitigation.

We cannot accept this position. Respondent’s theory would virtually eliminate all causes of action by any professional against an employer. The employer could discharge any “professional” at whim and if the diligent efforts of the professional to mitigate proved fruitless the employer could defend by saying that is just a risk of the profession. While that argument may apply to some situations involving professionals, e.g. in a doctor-patient relationship where the patient discharges his doctor, it does not apply to an employer-employee relationship such as the one at bar. The State was not a “client” or “patient” of Claimant but his employer and according to the terms of his employment he had certain rights.

We find that the same two-job distinction we discussed previously applies here. The issue becomes whether or not the two were incompatible. The evidence shows that they were, in that Claimant maintained his private practice before discharge, during the laid-off period, and following reinstatement. The next issue is whether or not there was an increase in the private practice income which resulted from the increased time Claimant had to devote to it during the layoff. Any increase would be credited to the State as a setoff. The evidence showed that for the four years prior to his discharge he netted $32,476.00 from private practice, based on 3,863 hours. During the four years of his discharge he netted $32,469.00 from 2,763 hours of private practice. The time spent is the more important factor of the two, for that was what became available to Claimant to use as a result of his discharge. Had he worked more hours during the discharge period we would setoff a corresponding amount of the income derived therefrom in mitigation. However, he spent less time at his secondary job and thus there is no setoff.

Having found no setoff due the State from income earned by Claimant during his discharge, we turn to the efforts of Claimant to mitigate. We reject Respondent’s arguments to the effect that Claimant should have sought work unrelated to the position from which he was wrongfully discharged and hold, consistent with our previous discussion of the duty to mitigate, that he need only seek similar employment. That is the law in the private sector and we see no reason that public employees should be held to a different standard.

We do, however, feel that Claimant did not do all in his power to mitigate damages. Claimant had four years in which to seek comparable employment. Although we take notice of the then state of the economy and all the other factors related to his occupation, we feel that more effort should have been made in that length of time. As Respondent correctly points out, having found inadequate mitigation it becomes the Court’s prerogative to fix the damages and make an award which we believe to be fair to all concerned in view of the circumstances. In doing so there is no empirical formula that can be applied. We find that $45,000.00 is a fair and just sum.

During the layoff period Claimant received $2,470.00 in unemployment compensation benefits. In the past this Court has applied such sums as a setoff to any awards, the reason being that it represented monies already paid out by the State as a result of the wrongful discharge or improper layoff and to ignore it would be to make Claimant more than whole. According to section 900 D. of the Unemployment Insurance Act (Ill. Rev. Stat., ch. 48, par. 490 D.), back pay awards representing compensation for a period of time over which a person was receiving unemployment compensation should be made by check payable jointly to the individual and the director of the Department of Labor. Such payments were not previously made by this Court because it was thought that to do so would have the result of transactions cancelling each other out. However, as a result of a recently decided claim, Illinois Department of Labor v. State, 34 Ill. Ct. Cl. 368, the Court has been made aware that unemployment benefits are paid out of a revolving fund and not the State’s general revenue fund, the funds from which back salary awards are payable. Therefore the transaction would not cancel itself out and the revolving fund should be reimbursed. In the interests of practicality, however, we direct the clerk’s office to cause to be issued two separate warrants, one to Claimant and one to the director of the Department of Labor.

It is hereby ordered that Claimant be awarded the sum of $42,430.00 plus appropriate additions for employer contributions to employee retirement and/or FICA as well as appropriate deductions and withholdings for employee contributions to employee retirement and/or FICA as well as Federal and State taxes, all as set forth more fully in the Appendix attached hereto and made a part hereof. It is further ordered that the sum of $2,470.00 be paid to the director of the Department of Labor. These payments are not to be withheld pending the oral argument on the issue of insurance benefits if they can otherwise be made prior to a decision on that issue.

APPENDIX A

Identification of State Contributions and Deductions from Back Salary Award

To the State Employees’ Retirement System:

Employee’s contribution to FICA_XXJ

State’s contribution to State

Employees’ Retirement System _5013.63

State’s contribution to FICA _.00

To Illinois State Treasurer to be remitted

to Internal Revenue Service:

Claimant’s Federal Income Tax _8486.00

To Illinois Department:

Claimant’s Illinois Income Tax _1060.75

To the Claimant:

Net salary 26823.11

OPINION ON REHEARING

Roe, C.J.

Claimant brought this claim seeking compensation for losses incurred by reason of a wrongful discharge from his employment with Respondent. On June 15, 1981, we rendered an opinion granting Claimant a gross award of $45,000.00 and reserved judgment on the issue of medical and hospitalization insurance as a proper item of damages pending oral argument. Claimant moved for reconsideration of our determination with respect to the issue of mitigation, and oral argument was subsequently held on both issues.

We deal first with the mitigation issue. Claimant does not contend that we misstated the law on the issue but disputes our application of the law to the facts on record. Upon careful reexamination of the record we agree with Claimant and find that he did in fact meet his duties with respect to mitigation. It has previously been stipulated that Claimant would have received a gross salary of $78,355.40 had he been continuously employed by Respondent during the period he was wrongfully laid off. After accounting for our earlier award in the gross amount of $45,000.00, Claimant is due the gross balance of $33,355.40 plus $100.00 inadvertently unaccounted for due to a mathematical error in the last paragraph of the opinion. (Claimant’s previous net award was actually based on only the gross amount of $44,900.00).

The second issue was whether or not Claimant is entitled to be reimbursed for health insurance benefits which would have been paid by the Respondent during the period of the wrongful layoff. In an effort to mitigate his losses Claimant purchased other health insurance which he said cost him $3,929.22 more than what he had been paying while employed by the Respondent. Additionally, Claimant seeks $4,321.80 as compensation for out-of-pocket medical expenses incurred which he stated would not have been incurred had his insurance paid for by the Respondent been in effect. Claimant argues that payment of such costs is necessary in order that he be made “whole” for what he lost by reason of the Respondent’s actions and cites several cases as authority for his position.

It is the Respondent’s position that the statute providing the remedy for Claimant, section lib of the Personnel Code (Ill. Rev. Stat., ch. 127, par. 63blllb), provides only for back wages to be paid to Claimant. Said statute provides that Claimant should receive “full compensation” but does not expressly include insurance benefits. Respondent cited Shimeall v. State (1979), 32 Ill. Ct. Cl. 760, 763, wherein we stated as follows:

“While the guideline furnished by the Circuit Court of Sangamon County, Illinois, to this Court sets forth that Claimant is entitled to full back salary and benefits, to date, this Court has never included in back salary and benefit awards, any sum for the State’s contribution to the employees’ group hospital and life insurance coverage. This part of the claim is denied.”

Because Claimant is not entitled to be compensated for the insurance, it follows, Respondent argues, that he is not entitled to recover for out-of-pocket medical expenses either.

After much consideration we are of the opinion that deprivation of health insurance occasioned by a wrongful layoff can give rise to compensable damages in this Court. Health insurance is a significant benefit given to employees of the Respondent by reason of their employment and where an employee has been wrongfully laid off he has been wrongfully deprived of that benefit. It is clearly a foreseeable naturally occurring loss caused by the wrongful actions of the employer. Regardless of whether the coverage can be modified or even discontinued unilaterally at any time by the employer, if it was in effect during the period of wrongful layoff and the employee shows that, but for the wrongful layoff, he would have been entitled to the benefit, he may have suffered a loss. Shimeall, supra, gives no rationale for its disallowance other than that to date insurance had never been factored into back pay awards. Insofar as Shimeall purports to disallow this loss as a potential compensable item of damage it is overruled.

However, just as the Claimant has an obligation to make reasonable efforts to mitigate the loss of the salary element of damage in this type of cause of action, we hold that he has a similar obligation to mitigate his losses with respect to loss of health insurance benefits also. In arriving at the amount of damages, we will be concerned not only with what the Claimant shows were the additional costs borne by him because he was deprived of health insurance coverage during the period of his being laid off, but also the extent of his efforts to mitigate these costs. If, as in the case at bar, mitigation is in the form of purchasing a substitute health care insurance policy, necessarily inquiry will have to be made as to the comparability of the coverage of the substitute policy to the coverage provided by the Respondent in effect during the layoff period, and in certain cases the comparability of cost of the substitute policy with costs of policies providing similar coverage which were available to the Claimant in the market. Because of the nature of this element of damage, decisions will be made on a case-by-case basis according to a standard of reasonableness in view of the circumstances, as are determinations with respect to the loss of the salary aspect of the claim. Additionally, we wish to make clear that it is not our intent to foster lengthy and complex litigation over this issue and we view it as one which can be significantly narrowed by stipulation and often settled in the entirety.

Turning to the record in this case, we find that while the Claimant clearly preserved the issue, the evidence offered is lacking in many respects. Although the transcript contains several pages of Claimant’s own testimony on direct and cross-examination, the testimony elicited was vague and ambiguous. Although there was some discussion of policies and premiums, neither side introduced a policy into the record. Claimant offered nothing in the way of a receipt for a claimed cost nor was there any itemization of any expenses incurred for coverage or noncovered items. Claimant’s counsel stated at the hearing that he believed the relevant material was in discovery and, in response to the commissioner’s inquiry as to whether or not it was filed with the Court, stated that if any of the discovery was filed, it was filed. It was not filed.

In view of this being the first case to recognize that deprivation of health insurance benefits can give rise to compensable damages we feel that the Claimant should be afforded another opportunity to pursue this portion of his claim. Therefore we hereby allow him 30 days from the date of this opinion within which to request a new hearing on this issue only.

Claimant is hereby awarded the gross sum of $33,455.50 plus appropriate additions for employer contributions to employee retirement and/or FICA, and less appropriate deductions and withholdings for employee contributions to employee retirement and/or FICA as well as Federal and State taxes, all as set forth more fully in the Appendix attached hereto and hereby made a part hereof. This award is not to be withheld pending disposition of the insurance issue if it can be paid prior to our disposition of that issue.

APPENDIX A

Identification of State Contributions and Deductions from Back Salary Award.

To the State Employees’ Retirement System:

Employees’ Retirement System 208.29

Employee’s contribution to FICA _.0(3

State’s contribution to State

Employees’ Retirement System 190.07

To Illinois State Treasurer to be

remitted to Internal Revenue Service:

Claimant’s Federal Income Tax 6691.10

To Illinois Department:

Claimant’s Illinois Income Tax 836.39

To the Claimant:

Net salary 25719.72

Total award $33,645.57

ORDER

Holderman, J.

This cause coming before the Court on the joint stipulation of the Claimant and the Respondent, and the Court being fully advised finds:

Pursuant to a previous opinion of this Court in this matter, the parties have agreed to an amount due to the Claimant.

The Claimant is due from the State the sum of $7,132.28 because of a wrongful discharge.

It is hereby ordered that the sum of $7,132.28 be paid Claimant as reimbursement for expenses incurred in connection with health insurance during the time of the Claimant’s wrongful discharge. It is further ordered that this award be paid in full, final and complete satisfaction of all claims arising from the Claimant’s wrongful discharge.


author: Patchett, J.

text:
    (No. 80-CC-0046
    Myrtle Enzenbacher, Administrator of the Estate of Myrl S. Sinderson, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 13, 1986.

    Lambruschi, Young & Associates (Keith L. Young, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (H. Alfred Ryan, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This claim arises out of an accident that occurred on August 5, 1977. The accident occurred at a T-intersection in McHenry County, Illinois. Route 173, a State highway, runs east and west, and is a two-lane road. White Oaks Road runs north and south, intersects with Route 173, and terminates at that point. White Oaks Road runs north from the T-intersection. The deceased, Myrl S. Sinderson, was proceeding south on White Oaks Road and stopped at the aforesaid intersection. A State highway maintenance truck was parked on the northeast corner of said T-intersection, apparently within a few feet from the intersection. After Mr. Sinderson stopped he pulled slowly out into traffic, attempting to make a left turn onto Route 173. As he did so, he was struck by a semitractor trailer truck driven by Robert Winemiller. At the hearing on this case before Commissioner Whipple, an eyewitness, Robert Cline, testified. In addition, the deposition of Robert Winemiller, the driver of the semi tractor trailer truck, was entered into evidence. In addition, Myrtle Enzenbacher testified at the hearing. Her testimony was as to the safe driving record of Mr. Sinderson, his good health before the accident, and the pain and suffering as a result of the accident. The Respondent stipulated that as a result of the injuries Mr. Sinderson died, and further stipulated to the total medical, hospital and funeral bills in the aggregate of $45,253.54.

The facts are basically undisputed in this case. The question is whether or not the parking of the maintenance vehicle on the northeast corner of the T-intersection, close to the intersection, was the proximate cause of the accident. The secondary issue is whether or not Mr. Sinderson was guilty of any comparative negligence.

We are of the opinion that the truck was parked in a negligent manner, thereby blocking the view at the intersection. However, we are further of the opinion that Mr. Sinderson was guilty of comparative negligence in that he failed to observe the truck driven by Mr. Winemiller. He pulled into the intersection even though it was blocked by the State vehicle. We find that had Mr. Sinderson not been guilty of any contributory or comparative negligence, then Mrs. Enzenbacher would have been entitled to an award of $100,000.00, the statutory maximum. The award would have been based upon the medical, hospital and funeral bills, in addition to an award for the pain and suffering of Mr. Sinderson in the year following the accident. However, we feel that the total award would not have been in excess of $100,000.00, and should be reduced by a factor of 50% to reflect the negligence of Mr. Sinderson.

Therefore, we award Myrtle Enzenbacher, administrator of the estate of Myrl S. Sinderson, an award in the amount of $50,000.00.


author: Raucci, J.

text:
    (No. 80-CC-1079
    Jane M. Graham and Iowa Mutual-Insurance Company, Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 20, 1985.

    Heyl, Royster, Voelker & Allen (John A. Ess, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

A stipulation of facts was filed in this case by the parties. The only issue is whether the Respondent is liable for damages caused by an escaping prisoner where the State employees voluntarily gave the inmate the keys to an automobile at the prison and directed the inmate to clean the automobile.

The relevant facts of this case are as follows: On or about October 24, 1978, Joseph DeFoe was lawfully in the custody of the Illinois Department of Corrections and under its direction, supervision and control, under a sentence of 20 months’ periodic imprisonment. The prisoner was an inmate of the Joliet Community Correctional Center, a minimum security prison. Agents of the corrections center gave keys to a vehicle owned by the State to Joseph DeFoe and directed the prisoner to clean the vehicle. The prisoner then fled from the corrections center in the automobile. While fleeing from the center, the escapee crashed the automobile he had stolen from the correctional center into the car owned by the Claimant, Jane M. Graham. The Claimant, Iowa Mutual Insurance Company paid all but $100.00 of the damages.

It is settled law that the Respondent is liable to the Claimant in this case.

In Minor v. State (1972), 27 Ill. Ct. Cl. 368, the court stated:

“The escape was admittedly made possible by the negligence of Respondent’s employees at this minimum security prison. Among other things, one of the three convicts was permitted to possess keys to an automobile at the prison. This car was used by the three inmates as a means of transportation in escaping from the institution.”

The evidence clearly establishes that (1) a duty was owed by the Defendant to the Plaintiff and that there was a breach of such duty; and (2) an injury resulted from the breach.

The Claimant sustained damages to her automobile totaling $3,976.00 by reason of the collision with the escapee in the State’s automobile and therefore should be awarded said $3,976.00.

It is therefore ordered, that Claimants Jane M. Graham and Iowa Mutual Insurance Company are awarded three thousand nine hundred seventy-six and 00/100 dollars ($3,976.00) as full and complete satisfaction of this claim.


author: Montana, C.J.

text:
    (No. 80-CC-1154
    Charles Edward Stade, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 29, 1986.

    Robert D. Bjork, for Claimant.
    Neil F. Hartigan, Attorney General (Jennifer Dover, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This cause comes before this Court on a stipulation for the entry of a judgment submitted by the parties. This is a breach-of-contract claim arising out of the construction of the Northeastern University library building in Chicago, Illinois.

In its complaint, Claimant alleged that the Capital Development Board (hereinafter CDB) breached its contract through its failure to compensate the Claimant for certain reimbursable expenses. The Claimant alleged that he suffered damages in the amount of $10,375.00.

After review of Claimant’s supporting records by representatives of CDB and following negotiations between the parties, CDB has stipulated and agreed that the Claimant was not properly compensated for certain reimbursable expenses under the terms of the contract.

Because of the time and expense of trial, the parties have stipulated and agreed that judgment should be entered in Claimant’s favor in the amount of $6,800.00.

Although this Court is not bound by any stipulation, it is not the practice of this Court to interpose controversy between the parties where none seems to exist. The instant stipulation appears to have been entered into after careful consideration of the facts and applicable law by authorized representatives of the parties regarding damage claims under State construction contracts. The amount agreed upon seems to have resulted from the give and take associated with arms-length bargaining. This being the case, this Court sees no reason not to honor the stipulation of the parties.

It is hereby ordered that Claimant, Charles Edward Stade, be awarded the sum of $6,800.00 (six thousand eight-hundred and no/100 dollars) in full and complete satisfaction of all its claims herein.


text:
    (No. 80-CC-1639
    Willis Barry Shaw, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 18, 1986.

    Beermann, Swerdlove, Woloshin, Barezky & Berkson (Lawrence R. Barezky, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Glen Larner, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This claim arises out of an accident which occurred on March 28, 1978. The facts are uncontroverted. The Claimant was driving his automobile in a northerly direction on Route 45, known as LaGrange Road, about 100 feet south of an overpass over Route 7 at approximately 10:45 p.m.

The roadway at the accident site had many potholes and cracks, and was rough to ride upon. These defects had existed, and progressively worsened, from 1976 through the date of the accident.

On March 17, 1978, 11 days prior to the accident, the Department of Transportation had issued a construction permit to DiPaolo Construction Company to locate and construct a twelve-inch (12") sanitary sewer for the Village of Orland Park. Construction work commenced on March 18, 1978, and was in process at the time of the accident. The sewer was to be installed under the southbound lanes of traffic on Route 45.

The highway was a four-lane highway. On the day of the accident, as a result of the construction, both southbound lanes were closed. The northbound lanes were designated as two-way traffic. Therefore, there was one lane for northbound traffic and one lane for southbound traffic.

Prior to the accident, Claimant was operating his vehicle at 30 to 35 miles per hour. The speed limit in that area was 45 miles per hour. He saw the barricades, noticed the road becoming rough, and reduced his speed to 25 miles per hour. The holes in the roadway were hidden by the gravel upon the roadway. The Claimant’s car was the only car traveling in either direction, and the only light available was from the Claimant’s car. These lights were on low beam.

Suddenly, the front end of the Claimant’s car dipped into a hole located in the middle of the Claimant’s lane of traffic. This caused his vehicle to swerve out of control. Claimant’s car then collided with the construction crane which had been resting on the outer southbound lane of traffic.

Claimant’s brother, Richard Shaw, went to the accident site later that night. He noticed a hole. The surface of the hole had apparently been covered with gravel, but the gravel seemed to be strewn about outside the hole. There was little gravel left inside the hole. The next morning, a worker with the construction company was observed refilling the hole with gravel.

The permit issued by the Department of Transportation required DiPaolo Construction Company to restore the highway, shoulders, and ditches to a condition equal to that existing before commencement of the work. The permit required DiPaolo Construction Company to hold the Respondent harmless against any personal liability, personal injury, or property damage claims sustained by reason of the construction. DiPaolo Construction Company was also required to conduct the work in such a manner as to minimize hazards to vehicular and pedestrian traffic.

While the Respondent is not an insurer of highways, it does have the duty to exercise reasonable care in the maintenance of highways to prevent hazardous road conditions. (Walls v. State (1968), 26 Ill. Ct. Cl. 388.) At least, Respondent has the duty to post signs notifying the public of a hazardous condition. Moldenhauer v. State (1978), 32 Ill. Ct. Cl. 514.

According to the uncontested facts, the roadway was rough and filled with potholes for almost two years. The roadway had become progressively worse. There were no warning signs posted. We feel that this constituted negligence on the part of the Respondent.

Respondent argues that the negligence of the Respondent was not the proximate cause of the accident. They argue that the acts, or omissions to act, of DiPaolo Construction Company constituted an intervening cause of Claimant’s injuries. Respondent argues that the permit required DiPaolo Construction Company to maintain two-way traffic at all times during construction and to . . conduct the work in such a manner as to minimize hazards to vehicular and pedestrian traffic.” Respondent claims that DiPaolo Construction Company failed to properly maintain the road because it cordoned off the highway so that northbound traffic was required to pass over the pothole. They further allege that DiPaolo Construction Company allowed the area of the pothole to be covered with gravel. Respondent therefore argues it was DiPaolo Construction Company’s acts, or omissions to act, which proximately caused the accident.

We do not agree. The pothole in question and its general vicinity had been hazardous prior to DiPaolo Construction Company’s entry upon the scene. In addition, Respondent knew that by requiring two-way traffic at all times, DiPaolo Construction Company would be required to channel traffic over and above the pothole in question. Thus, Respondent knew or should have known that DiPaolo Construction Company would force traffic over the pothole in the course of its construction project.

In the case of Watson v. Byerly Aviation, Inc. (1972), 7 Ill. App. 3d 662, 288 N.E.2d 233, cited by the Respondent, the Court indicated that where the first wrongdoer could reasonably anticipate the intervening cause, the first wrongdoer is still liable. In this case, the Respondent could have reasonably anticipated the channeling of traffic over a preexisting pothole due to the sewer construction project. The Respondent should have also known that DiPaolo Construction Company was not required to repair the highway to a higher standard than had existed prior to the beginning of the sewer construction work. Therefore, we feel that it was the Respondent’s negligence which proximately caused Claimant’s injuries.

Respondent further argues that Claimant’s own negligent conduct contributed to his injuries, and that any award should be reduced to the degree Claimant’s conduct contributed to his own harm. We feel that there was a certain amount of contributory negligence present in this case. The Claimant was operating a car at 25 miles per hour at night in an area designated by construction warnings. In addition, the road was bumpy and covered with gravel. Finally, despite the fact that there was no oncoming traffic, he was operating his automobile with his headlights on low beam. We, therefore, find that the Claimant’s award should be reduced by a factor of 10% because of his own comparative or contributory negligence.

As a result of the accident, the Claimant was taken to Palos Community Hospital. He stayed there for 16 days, during which time glass was extracted from his face. His right leg was in traction, and surgery was performed to insert a metal rod in his leg. The Claimant was forced to use crutches until August 5,1978. He then used a cane for another eight or nine months. In October 1978, the Claimant had an increase of pain in his right hip, and was forced to have a second surgery to have the rod reinserted. In the future, surgery will again be required to remove the metal rod.

As a result of his injury, Claimant was unable to take certain courses at his university. Because of this, the Claimant graduated three years late. The Claimant’s right leg is now shorter than his left leg, and he walks with a limp. In addition, he has noises in his right knee. Formerly a physical education major, he is now precluded from any significant participation in sports.

His special damages are $6,871.00. In addition, future medical expenses should be approximately $5,300.00. The Claimant has lost three years’ salary as a teacher and will lose income in the future when surgery is required to remove the rod. The Claimant’s automobile was damaged in the amount of $1,854.29. The Claimant has suffered extreme pain during various periods of his hospitalization.

For all the foregoing reasons, we award the Claimant the sum of $100,000.00. This will be reduced by a factor of 10%, due to the Claimant’s negligence. This will result in an award of $90,000.00. We will then deduct $22,500.00, which the Claimant has received from other sources. The Respondent is entitled to credit for this amount. Thus, we award the Claimant the net sum of $67,500.00.


author: Holderman, J. Holderman, J.

text:
    (No. 80-CC-2215
    William Maikranz, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 25, 1985.

      Order on dismissal of petition for rehearing filed September 13,1985.

    Cohn & Flynn, for Claimant.
    Neil F. Hartigan, Attorney General (Lynn W. Schock, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant seeks damages for pain and suffering, medical expenses and disability occasioned by a laceration to his forehead and contusion to his right elbow sustained from a collision with a gate apparatus in Illinois Beach State Park while he was a passenger in an automobile.

The issue is whether the State has a duty of care to Claimant, absent wilful and wanton conduct.

This matter was heard before a commissioner on December 5, 1983, when an evidentiary hearing was held. Counsel for Claimant and the assistant attorney general were present at the hearing. Both parties have submitted briefs and arguments.

Generally, members of the public properly upon State park grounds are invitees and are therefore owed a duty by Respondent to exercise reasonable care in establishing, maintaining, and supervising its parks. Damermuth v. State (1966), 25 Ill. Ct. Cl. 353; Kamin v. State, 21 Ill. Ct. Cl. 467; Murray v. State (1963), 24 Ill. Ct. Cl. 399.

However, the duty of care varies according to the status of the person entering the land. (Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 343 N.E.2d 261.) With respect to a trespasser or a licensee, the Respondent only owes a duty, not to wilfully and wantonly injure the person going upon the land. Burris v. State (1963), 24 Ill. Ct. Cl. 282; Walton v. Norphlett (1977), 56 Ill. App. 3d 4, 371 N.E.2d 978.

The record shows that Claimant and his companions arrived at Illinois Beach State Park at approximately 4:30 a.m. on the morning of May 4, 1980. Claimant gained entry to an area that had been closed since 10:00 p.m. the previous evening. Respondent presented evidence that signs were posted throughout the park indicating the closing time of the park with the exception of the Class A campsite area. This was the only road open for ingress and egress.

The record further shows that the automobile in which Claimant was a passenger struck a steel swinging crossrail gate which was used to barricade Beach Road at closing time. The crossrail also had a sign posted on it indicating the closing time of the park. This accident took place outside the general area of Campsite A. Therefore, Claimant and his companions were in an unauthorized area at the time of the accident.

The evidence would indicate that Claimant was a trespasser and therefore has the burden of proving the State acted in a wilful and wanton manner. A trespasser has been defined as one who enters the premises of another without permission, invitation, or other right and intrudes for some purpose of his own, or at his convenience, or merely as an idler. 62 Am. Jur. 2d Premises Liability, sec. 55, 297; I.P.I. 2d sec. 120, 01, 349.

The park in which the incident occurred had been closed since 10:00 p.m. the evening of May 3, 1980. There were signs throughout the park indicating that the park was closed. Claimant testified he was familiar with the park and had been there on numerous occasions. It is evident, therefore, that Claimant had ample notice of the closing time of the park.

The record also reflects that no evidence was presented indicating the injuries Claimant sustained were the result of wilful and wanton conduct on the part of Respondent. Mr. Kenneth Harvey, maintenance and security officer for Illinois Beach State Park, testified the gate apparatus in question was inspected during the evening of May 3,1980, and the morning of May 4,1980, and was found to be in proper working condition and closed.

It appears from the evidence in this case that Claimant was a trespasser and not an invitee, that he was familiar with the area and aware of the park’s closing hours, and was consequently a trespasser. He did not produce any evidence, much less a preponderance, to show the injuries sustained were the result of a wilful and wanton act on the part of Respondent. It is clear Claimant’s injuries were sustained as a result of his own wilful disregard of the signs and hours in which the park was open.

Claimant having failed to present the necessary proof to reflect any liability on the part of the State, this cause is dismissed.

ORDER ON DISMISSAL OF PETITION FOR REHEARING

Holderman, J.

This matter comes before the Court upon petition of Claimant for rehearing. Said petition requests the order of dismissal heretofore entered be vacated and another hearing held.

The order of dismissal sets forth that it was the Court’s conclusion, after reading the evidence, that Claimant and the other passengers in the car were all trespassers. The commissioner, in his report, set forth a definition of trespasser, which is as follows:

“A trespasser is one who enters the premises of the other without permission, invitation, or other right, and intrudes for some purpose of his own, or at his convenience, or merely as an idler.” 62 Am. Jur. 2d Premises Liability, sec. 55, 297; I.P.I. 2nd sec. 120, 01, 349.

The Court is still of the same opinion that Claimant was a trespasser and there was no liability established on the part of the State. Case dismissed.


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

text:
    (No. 80-CC-2281
    William Bradford McKee, Claimant, v. The State of Illinois, Respondent.

      Order filed March 6, 1981.

      Order filed December 14, 1984.

      Order on denial of motion for reconsideration filed December 14, 1985.

    Giffin, Winning, Linder, Newkirk, Cohen & Bodewes, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Roe, C.J.

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

It is hereby ordered that the motion of Respondent be and the same is hereby granted and the claim herein is hereby dismissed.

ORDER

Roe, C.J.

Claimant is seeking to recover for personal injuries sustained as the result of an automobile accident which occurred on June 22, 1978, approximately two miles west of Vienna, Illinois, on Highway 146.

On January 21, 1980, Respondent filed a motion to dismiss based on Claimant’s failure to file a notice pursuant to section 22 — 1 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.1 et seq.), hereinafter referred to as the Act, which provides that:

“Within 6 months from the date that such an injury was received or such a cause of action accrued, any person who is about to commence any action in the Court of Claims against the State of Illinois ... for damages on account of any injury to his person shall file in the office of the Attorney General and also in the office of the Clerk of the Court of Claims, either by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, a brief description of how the accident occurred, and the name and address of the attending physician, if any

Section 22 — 2 of the Act states:

“If the notice provided for by Section 22 — 1 is not filed as provided in that section, any such action commenced against the State of Illinois . . . shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims for such personal injury ...”

On March 6, 1981, this Court granted the January 21, 1980, motion of Respondent and accordingly ordered the dismissal of the claim. Claimant thereafter filed a motion to vacate.

In an order dated October 7, 1982, we found that the only issue raised in Claimant’s motion to vacate and its accompanying memorandum which may have any merit was whether Claimant was under a disability following the accident which would toll the limitations period. We ordered that the cause be assigned to a commissioner for the purpose of determining whether the Claimant was under a disability.

On October 31, 1983, this Court, following the submission of the report from the commissioner, entered another order finding that the seriousness of Claimant’s injury and affidavits of Claimant’s doctor seemed to indicate that Claimant was disabled and/or incompetent within six months from the date of his injury, and was therefore unable to file a notice on his behalf with the Court of Claims as required by the Act. Claimant’s motion to vacate the Court’s prior dismissal was granted in said order, but we noted that Respondent’s motion to dismiss would be held in abeyance pending the submission of additional evidence. Over a year has passed since the October 31, 1983, order and the only additional evidence that has been submitted are Respondent’s interrogatories and Claimant’s answers thereto, which the Court has considered along with the other evidence in the record.

Based on the evidence before us it is our opinion that Claimant has failed to comply with section 22 — 1 of the Act. While it does appear from the record that Claimant was under a disability which rendered him incapable of making competent decisions and judgments possibly up to one year following his accident, this does not excuse his failure to file the notice of intent required by section 22 — 1 of the Act within the six-month period following the removal of the disability.

This Court has repeatedly found that the notice requirements of section 22 — 1 are a condition precedent to filing a complaint against the State of Illinois and that failure to comply requires the dismissal of the claim. (Palmer v. State (1966), 25 Ill. Ct. Cl. 1; Munch v. State (1966), 25 Ill. Ct. Cl. 313; Byrne v. State (1980), 34 Ill. Ct. Cl. 248.) Claimant, by failing to file a notice of intent within the six-month period following the removal of his disability, has failed to comply with section 22 — 1 of the Act and his claim must therefore be dismissed pursuant to section 22 — 2 of the Act.

It is hereby ordered that the motion of Respondent to dismiss be, and is, hereby granted and this claim accordingly is dismissed.

ORDER ON DENIAL OF MOTION FOR RECONSIDERATION

Poch, J.

' This matter coming on before the Court on Claimant’s petition for reconsideration of the order of dismissal on December 14,1984, and Respondent having filed its objection to said petition, all parties having received due notice and the Court being fully advised in the premises;

It is hereby ordered that the petition for reconsideration be and is hereby denied.


text:
    (No. 81-CC-0052
    Tameaka Wells, Daughter of Cheryle Denise Ramsey, by Cleather Brown, Grandmother and Next Friend of Tameaka Wells, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 7, 1985.

      Order on denial of rehearing filed March 3, 1986.

    Charles Stegmeyer, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a wrongful death claim brought on behalf of the Claimant, Tameaka Wells, by her grandmother for the death of her natural mother, Cheryle Ramsey. Cheryle Ramsey, age 16 years, was sent by the Illinois Job Service in East St. Louis to a location at which she was to be employed as a baby-sitter. The incident occurred on May 16,1979. When she arrived at the place where she was to be employed as a baby-sitter, she was beaten and stabbed to death by one Sylvester Davis, who had previously called the Job Service to request a baby-sitter be referred to him. At the time the referral was made, the Job Service had internal regulations which provided that no person under 18 years should be referred as a baby-sitter, that a Job Service employee making the referral could require references of prospective employers if it was felt to be necessary, and that utmost caution should be exercised in referring baby-sitters to private homes. The Job Service employee who referred the decedent ignored all three of these internal regulations.

This claim is based on the alleged negligence of Respondent. Claimant seeks relief based on the theory that Respondent was negligent in operating its State Job Service by failing to set qualifications for people who sought baby-sitting services from the placement service; failing to interview applicants for baby-sitters to determine whether or not the applicants needed the services and had acceptable qualifications; failed to advise or instruct people working as baby-sitters as to whether they had sufficient education to handle situations that might arise in various homes where babysitting was done, and failing to determine that a person seeking baby-sitting services was a dangerous individual with a criminal record.

The decedent had been referred to a particular location by the Illinois Job Service for the purpose of conducting baby-sitting services. Prior to being referred to this job, decedent was not registered or interviewed in accordance with the rules of the agency. The applicant for baby-sitting services was not interviewed in person by the Job Service.

The counselor, who made the referral prior to the death of decedent, was reprimanded and suspended from her job for violation of the internal regulations of the Illinois Job Service in that she did not interview the prospective job applicant prior to sending her out on a job and that the applicant was younger than regulations permitted in being referred to a baby-sitting job.

The evidence shows that the decedent was the mother of a child, Tameaka Wells, who was 16 months old at the time of her mother’s death. Decedent was not married and did contribute to the support of the child through various jobs, including jobs as a waitress and baby-sitter. Respondent points out that the policy of the Job Service in checking out prospective employers is not mandatory but discretionary.

The evidence shows that there is no question but that decedent died from a criminal act committed by Sylvester Davis in murdering decedent. It is not alleged that any agent of Respondent knew or had reason to know that Davis, who falsely identified himself in seeking baby-sitting services, would injure or kill decedent.

This claim must be decided on the issue of whether or not the State owed any duty to the decedent to foresee the criminal conduct that took decedent’s life. The following cases, the Court believes, set forth the law in the State of Illinois regarding the State’s responsibility in this matter: Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 84, 305 N.E.2d 529; Ozment v. Lance (1982), 107 Ill. App. 3d 348, 437 N.E.2d 930; Burks v. Madyun (1982), 105 Ill. App. 3d 917, 435 N.E.2d 185.

It is the general rule in the State of Illinois that a person has no duty to control criminal conduct in order to prevent harm to a third person unless there is a “special relationship” between the person charged with the duty and the victim. This rule is set out in the Restatement of Torts (2nd) in section 316. The “special relationships” which may impose such a duty on a person include: (1) carrier-passenger; (2) innkeeper-guest; (3) landowner-business invitee; and (4) a person having custody of a victim under the circumstances which deprive the victim of the normal opportunities for protection.

It appears from a review of the above-cited cases that none of the “special relationships” outlined in section 316 occurred in the present case. Even if a “special relationship” did occur, the Court must also consider the question of whether the criminal conduct is reasonably foreseeable in order to charge the State with negligence. As stated by the Court in Burks v. Madyun, “. . . the imposition of a duty to guard against criminal attacks by third persons depends upon notice of the danger to the invitee in addition to the existence of a special relationship.” 105 Ill. App. 3d 917, 921.

Aside from the duty set out in Section 316, one may also assume a duty to protect third persons from harm. (See Restatement of Torts, section 324(a).) That section has been cited in and approved by the Illinois Supreme Court in the case of Cross v. Wells Fargo Alarm Service (1980), 82 Ill. 2d 313, 412 N.E.2d 472. The Cross case held “a duty voluntarily assumed must be performed with due care or ‘such competence and skill as one possesses’.” Notwithstanding the fact that one may assume a duty, there still is the issue of whether or not the criminal acts in question are reasonably foreseeable, hence we are back to the same problem as arises under the “special relationships” analysis. That is, whether the facts in this case support the conclusion that the criminal act which led to the death of the decedent was reasonably foreseeable by the State. It is at this point that the evidence in the record collapses and fails to support any such conclusions. In fact, there is no evidence in the record of any prior criminal conduct that the State had knowledge of on the part of the defendant, nor is there any evidence that the State was aware or should have been aware that the neighborhood involved was one in which crimes of this nature were likely to be committed, nor is there any evidence of similar crimes having been committed upon persons previously referred by the Illinois Job Service.

In addition to the foregoing, the Ozment court tells us “foreseeability alone is not sufficient. Before imposing a duty on defendant, the likelihood of injury, the magnitude of the burden of guarding against it and the consequence of placing that burden on defendant must also be taken into account.” In other words, it is difficult to foresee how the Job Service could ever guard against the type of attack which occurred in this case without personally inspecting all the applicants it is referring and personally inspecting all of the prospective employers to whom it refers. This would obviously put such a manpower burden upon the Job Service as to threaten to put it out of business. If that were to happen, the logical consequence would be that the purpose of the program would be totally frustrated.

Claimant, at the hearing before the commissioner, made a lot of the fact that the Job Service personnel violated their own regulations in the referral in this case. The State has cited the case of Carev v. State (1982), 35 Ill. Ct. Cl. 96 for the proposition that the failure to comply with regulations was not the proximate cause of the injury. The Court agrees with that conclusion in the sense that the failure to comply with their own regulations relates to the issue of foreseeability. In other words, the fact that the violation existed does not alter the fact that the criminal conduct which took place here was not foreseeable by the State in its position as a job referral agency. Therefore, the fact that the regulations were ignored is not a proximate cause of the injury sustained by Claimant in the death of decedent.

In view of the law set forth above, it is the Court’s opinion this claim should be denied and no award granted.

ORDER ON DENIAL OF REHEARING

Holderman, J.

This matter comes before the Court upon Claimant’s motion for a rehearing or, in the alternative, for a new trial.

The Court filed an opinion in this case on November 7, 1985, in which it refused to allow compensation to Claimant.

Claimant Tameaka Wells is the daughter of decedent, Cheryle Denise Ramsey, who was murdered while in the employ of the Illinois Job Service when she was sent to a home in response to a call for a baby-sitter.

Ordinarily, motions for new trials are addressed to the sound discretion of the trial court. (In re Marriage of Hopkins (1982), 106 Ill. App. 3d 135, 435 N.E.2d 897.) Generally motions for a rehearing include reconsideration by the trial court for a “misapprehension” of law as found in Fulwider v. Fulwider (1972), 81 Ill. App. 3d 581, 290 N.E.2d 264. On other occasions, such motions purport to present “newly discovered” evidence for the court’s consideration. (Drury v. Catholic Home Bureau (1966), 34 Ill. 2d 84, 213 N.E.2d 507.) Claimant in this case does not purport to present any new evidence. Rather, she argues that the evidence on the record supports her conclusions that the Court has misinterpreted the law as applies to the facts in this case. She concludes, on page 3 of her brief, that “Claimants also believe that the State has additional duties to the young and naive in protecting them when the State assumes the Job Service responsibility.”

The effect of Claimant’s argument is to ignore the cases referred to in the Court’s opinion regarding intervening criminal conduct. Her conclusion that the State has additional duties to persons of tender years has the effect of grafting a new “tender years” exception onto the “special relationships” referred to in section 316 of the Restatement of Torts which is cited by the Court in its opinion. It is apparent from her argument that the Court did not misapprehend the law, but rather Claimant wishes to change the law by placing a new duty on the State which did not exist prior to this time.

Claimant also addressed the issue of foreseeability in her motion by arguing that the record clearly establishes that the State should have foreseen the danger to decedent. This, however, constitutes rehash of the facts previously considered by the Court in its initial consideration of this case. Claimant now asks the Court to reach a different conclusion because she is dissatisfied with the initial opinion. There is no attempt to present any new factual data for the Court’s consideration. Even if such new facts were purported to be presented, she would have the burden of convincing the Court that her new evidence was not discoverable prior to trial. Drury v. Catholic Home Bureau (1966), 34 Ill. 2d 84, 213 N.E.2d 507.

Claimant’s alternative motion for a new trial likewise is addressed to the discretion of the Court. She presents no new facts which might convince the Court to initiate a new evidentiary proceeding in this case; rather, her motion constitutes a reargument of the facts and conclusions which were previously rejected by the Court in its original opinion.

Claimant’s motion for a rehearing or, in the alternative, for a new trial is hereby denied.


text:
    (No. 81-CC-0982
    Edward Lee Owens, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 20, 1985.

    Edward Lee Owens, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property he allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State of Illinois is liable as a bailee for the return of that property.

This Court has held in Doubling v. State, 32 Ill. Ct. Cl. 1, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property, as during the course of the transfer of an inmate between penal institutions, or when the institution receipts for property.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and voluntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” Chesterfield Sewer & Water, Inc. v. Citizens Insurance Co. of New Jersey (1965), 57 Ill. App. 2d 90,207 N.E.2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301,13 So. 2d 172,174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence. Bell v. State, 32 Ill. Ct. Cl. 664; Bargas v. State, 32 Ill. Ct. Cl. 99; Romero v. State, 32 Ill. Ct. Cl. 631; Moore v. State, 34 Ill. Ct. Cl. 114.

In this case, Claimant was injured while away from his cell and was immediately transported from medical service to St. Joseph Hospital.

Upon his return to infirmary status at the institution wherein he was an inmate, his private personal property was damaged or stolen. Claimant did not know what happened to his property at the time he was hospitalized. Claimant admits that he had a cellmate.

Under these circumstances, no presumption arises regarding the responsibility of Respondent and Respondent is not required to come forward with proof of due care. There is no evidence in the record from which it could be determined that Claimant’s personal property came into the exclusive possession of Respondent so that upon its loss or destruction Respondent would be under a duty to proceed with proof as to the care that was given the Claimant’s property.

It is therefore ordered that the claim is denied.


text:
    (No. 81-CC-1602
    Wil-Freds, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 18, 1985.

    O’Halloran, Lively & Walker, for Claimant.
    Neil F. Hartigan, Attorney General (Erin M. O’Connell, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This cause comes before this Court on a stipulation for the entry of judgment submitted by the parties. This is a breach-of-contract claim arising out of the construction of the West Pullman Nansen Elementary School (the “project”) in Chicago, Illinois.

The overall project consisted of three sequential phases, each being the subject of a separate contract with the Capital Development Board (the “CDB”). Claimant was the Phase III contractor. Because the phases were sequential, Claimant could not commence its Phase III work until the first two phases were completed.

On October 4, 1978, Claimant received authorization from CDB to proceed with Phase III contract work at the project. Pursuant to the contract, Claimant was to complete its work within 330 days as measured from the date of the notice of award of the contract, August 22, 1978. This established a July 17, 1979, completion date for Claimant for its work on the project. Except for some minor change order work done in February 1979, Claimant could not commence its work until March 20, 1979. It is this delay between October 1978, and March 1979, that has given use to the claim herein.

In its amended complaint, Claimant alleged that CDB breached the contract through its failure to make the project site available to Claimant in a timely manner such that Claimant could perform its work within the time contemplated by the parties at the time of bidding. As a result of this delay, Claimant has alleged that it suffered damages in the amount of $128,030.00 associated with its increased cost of performance of its work under the contract.

After extensive review of Claimant’s supporting records by representatives of CDB and following lengthy negotiations between the parties, CDB has stipulated and agreed that Claimant was prevented from proceeding with its work on a timely basis and, for purposes of this claim only, admits liability under the amended complaint.

Because of the time and expense of trial and the vagaries of proof associated with this type of claim, the parties have stipulated and agreed that judgment should be entered in Claimant’s favor in the amount of $82,000.00.

Although this Court is not bound by any stipulation, it is not the practice of this Court to interpose controversy between the parties where none seems to exist. The instant stipulation appears to have been entered into after careful consideration of the facts and applicable law by authorized representatives of the parties regarding delay damage claims under State construction contracts. The amount agreed upon seems to have resulted from the give and take associated with arms-length bargaining. This being the case, this Court sees no reason not to honor the stipulation of the parties.

It is hereby ordered that Claimant, Wil-Freds, Inc., be awarded the sum of eighty-two thousand and 00/100 ($82,000.00) dollars in full and complete satisfaction of all its claims herein. .


author: Holderman, J.

text:
    (No. 81-CC-1866
    Carolyn Toney, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 12, 1985.

    Steinberg, Burtker & Grossman, Ltd., for Claimant.

      Neil F. Hartigan, Attorney General (James Tyson, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is an action to recover for personal injury sustained by the Claimant Carolyn Toney on February 24, 1979, while she was an inpatient at Respondent’s State of Illinois, Tinley Park Mental Health Center when she attempted suicide by jumping through a glass window of her second floor room.

That since the initiation of this claim, the parties have engaged in extensive discovery and the Court has conducted several hearings at which time it determined that the Claimant was incompetent at the time she was injured during her suicide attempt on February 24,1979. The parties have therefore entered into a joint stipulation to resolve the instant case.

This Court therefore finds that based upon the parties’ joint stipulation, the Claimant was injured when she attempted suicide by jumping through an unprotected glass window from the second floor of the Tinley Park Mental Health Center on February 24,1979. That at the time of the occurrence, the Respondent had knowledge of the Claimant’s need for suicidal precautions, yet it failed to take the necessary steps to initiate the same from which she was proximately injured. That as a result of the fall, the Claimant sustained lacerations to her right wrist, radial artery, median nerve and flexor tendons. Lacerations of her left heel were repaired and plaster casts were applied to both of her lower limbs and right upper limb for fractures. She was hospitalized at South Suburban Hospital, Hazelcrest, Illinois, and University of Illinois Hospital, Chicago, Illinois, through April 21, 1979. The parties have further agreed that it is in their respective best interests to stipulate to these facts and to agree that the sum of forty-five thousand ($45,000.00) dollars be awarded the Claimant to fairly and reasonably compensate her for the injuries she sustained resulting from the occurrence in question.

It is hereby ordered that the Court finds the parties’ joint stipulation to be fair and just and that the sum of forty-five thousand ($45,000.00) dollars be awarded to the Claimant, Carolyn Toney, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


text:
    (No. 81-CC-2346
    Minnie Hoekstra, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 21, 1984.

      Order on petition for rehearing filed February 27, 1985.

      Order filed August 8, 1985.

    Johnson & Westra, for Claimant.
    Neil F. Hartigan, Attorney General (John J. Perconti, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim brought by Claimant for damages for personal injuries sustained by her on January 7, 1981, when she fell on a patch of ice outside the rear entrance of the Secretary of State’s driver’s license facility in Lombard, Illinois.

The Secretary of State occupied the facility building, located in a shopping mall, under the terms of a lease introduced into evidence as Respondent’s exhibit No. 1. In addition to the use of the building, the Secretary of State also had available to it, adjacent to the building, a certain amount of blacktopped parking space for test lanes.

As a result of an action brought by Claimant in the Circuit Court of Du Page County, Illinois, Claimant recovered from the lessor and another party the sum of $7,000.00. She also received $2,227.75 from Medicare and Blue Cross/Blue Shield for her medical bills.

The evidence in the record was mainly the testimony of Claimant and one of the employees of the Secretary of State’s office. They directly contradicted each other.

Lawrence Sebastian, an examiner at the driver’s license station, testified that on January 7, 1981, he arrived at work at approximately 7:30 a.m. and that the day was cold and clear. He testified it was the landlord’s responsibility to remove the snow from the parking lot, including the rear entrance to the facility, and to salt the parking lot, including the rear entrance to the facility. He testified that after he arrived at work, he began getting cars lined up in the test lanes and heard a scream. He looked over at the rear entrance and saw that Claimant had fallen to the ground. He and another man went over to Claimant, helped her up, walked with her into the waiting room, and had her sit down in a chair. He further testified that the surface of the parking lot was clean and clear and there was salt on the pavement of the rear entranceway to the facility.

He testified that he and other employees of the Secretary of State shoveled snow from the rear entranceway and salted it and that this was on a voluntary basis. He stated they had some pails of rock salt they kept in a back room of the building as well as some snow removal equipment.

He further testified that the entrance to the rear of the building where Claimant fell was dry and there was rock salt on it, and that it was the obligation of the landlord to remove snow and ice, and the lease itself stated it was the obligation of the owner of the building, or landlord, rather than the tenant, to keep these premises clean and safe.

Claimant testified she and her husband arrived at the area about 8:00 a.m. and there was snow piled up against the building where it had been pushed to clear the parking lot and that the parking lot had been cleaned of snow. She further testified that directly in front of the door at the rear entrance to the building there was a large patch of ice with some small dry spots and she endeavored to use the dry spots but slipped and fell. She stated her husband preceded her and he had opened the door and gone into the building at the time she fell. She stated she fell rather hard on her buttocks. She was helped to a chair by two “policemen.” She stated she did not see any salt on the ice on which she claims she fell.

The lease was introduced into evidence and had a clause to the effect that it was the landlord’s obligation to keep the premises free and clear so they were safe for use by individuals who might be going in the Respondent’s office.

At the hearing before Commissioner Simpson, Claimant tried to have introduced into evidence an alleged conversation between two men dressed in officer’s uniforms in which they said they should have salted or shoveled that morning. No proof was introduced into the record showing who the so-called officers were, and whether they were employees of the State of Illinois, the Secretary of State’s office or police officers is not known. The commissioner properly ruled this was strictly hearsay evidence since there was no identification of the officers who made the alleged statements.

This Court has repeatedly held that the State is not an insurer of individuals who decide to use its facilities, and that the Respondent owes Claimant a duty of ordinary care in maintaining its premises in a reasonably safe condition. (Fleischer v. State (1983), 35 Ill. Ct. Cl. 799.) The Court also calls attention to the fact this was not a State-owned property but one that was leased, and the lease placed the duty of keeping the premises clean upon the owner of the property. This Court has further held that the burden of proof in a negligence action is upon Claimant and that Claimant must prove by a preponderance of the evidence that the State was negligent, that such negligence was the proximate cause of the damages, and that Claimant was not contributorily negligent. (See Hill v. State (1978), 32 Ill. Ct. Cl. 482; Levy v. State (1958), 22 Ill. Ct. Cl. 694.)

The Court calls attention to the fact that Claimant has already collected for injuries complained of which would indicate she was of the opinion somebody else was responsible for the injuries she sustained.

Claimant having failed to meet the burden of proof required, award is denied, and this cause is dismissed.

ORDER ON PETITION FOR REHEARING

Holderman, J.

This matter comes before the Court upon petition for rehearing filed by Claimant.

Claimant’s petition states that the Court entered an order of dismissal before Claimant had filed her reply brief. The record indicates that Claimant’s time to file brief and argument was January 2, 1985, and on December 21,1984, the Court entered its order.

The Court confesses its error in this matter and grants Claimant’s petition for rehearing. The Court therefore invalidates its order of December 21,1984, and gives Claimant 60 days from the date of this order in which to file any additional briefs, if so desired, and gives Respondent an additional 60 days after Claimant’s filing, if any, to reply to said brief.

The Court’s order of December 21, 1984, is hereby vacated.

ORDER

Holderman, J.

This matter comes before the Court after having received the briefs filed by Claimant and Respondent. An order was previously entered by this Court on December 21,1984, denying Claimant an award.

The Court having read the briefs of the parties hereto and being fully advised of this cause, it is still of the opinion that the Court’s original decision denying an award to Claimant was correct.

The Court again calls attention to the fact that the State is not an insurer of individuals who decide to use its facilities and the only obligation on the part of Respondent is that of ordinary care in maintaining its premises in a reasonably safe condition. The Court also calls attention to the fact that the property in which the accident occurred was not a State-owned property but one that was leased and the lease specifically provided for the care and maintenance of said property.

The State further calls attention to the fact that Claimant has already collected for injuries from the property owner and other parties involved.

The Court hereby reaffirms its decision to deny Claimant an award in this case and adopts its opinion of December 21,1984, as its final decision.


text:
    (No. 81-CC-2573
    Jeffrey W. Powell, a minor, by his mother and next friend, Violet G. Powell, and Christopher J. Powell, a minor, by his mother and next friend, Violet G. Powell, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 31, 1985.

    Knuppel, Grosboll, Becker & Tice, for Claimants.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This is a claim for personal injury filed on behalf of two minors by their mother, Violet G. Powell. The claim arises as a result of a collision between a truck driven by Joseph Powell, father of the minor children, and William A. Crum, a State employee. The accident occurred on November 27,1980. The weather conditions were snow with wet roadway conditions. The accident occurred at the intersection of U.S. Route 67 and Illinois Route 103 in Schyler County, Illinois, at approximately 8:30 a.m.

The evidence indicates that the highway truck driven by State employee Crum was clearing the aforesaid intersection of snow and ice on the roadway. Driver Crum was clearing each of the four parts of the intersection by clearing one side of the roadway and by making a U-turn to clear the same section of intersection heading in the opposite direction.

As Crum attempted to make a U-turn, his State truck was struck on the left side of the snowplow by the truck driven by Joseph Powell. The Claimants, Jeffrey W. Powell and Christopher J. Powell, were passengers in the cab of the pickup truck. The Claimants, Jeffrey W. Powell and Christopher J. Powell, were taken from the scene to the hospital, treated, and released. Christopher J. Powell’s lacerations required stitches, while the laceration on Jeffrey W. Powell’s head was treated with butterfly tape.

The evidence clearly shows that Mr. Crum was pulling off the right side of the highway prior to making a contemplated left U-turn. The evidence is in conflict as to what, if any, turn signal he had on. However, we feel that this type of driving, especially involving this type of truck, clearly showed the lack of a proper lookout. A left U-turn, from that position, was unusual and not to be expected by a reasonable driver. Further, we find that it was reasonable for Joseph Powell to attempt to pass a vehicle which had pulled off the shoulder of the road. Therefore, we find that there is liability on the part of the Respondent to the Claimants from this collision. Further, from examining the evidence in the record we find no evidence of contributory negligence which could be imputed to the minor Claimants.

As to the amount of damages, the actual medical bills incurred were $214.00. The Claimant, Christopher Powell, a child of three months of age at the time of the accident, received severe lacerations, requiring stitching. This left two permanent scars on his forehead. It is further obvious that the child would have incurred pain and suffering as a result of such an injury. Therefore, we award the Claimant, Christopher J. Powell, a sum of $2,020.00, said sum reflecting the $20.00 medical bill incurred as a result of his treatment and $2,000.00 to represent pain and suffering and damages from permanent scarring of a slight nature on his forehead.

We further award the Claimant, Jeffrey W. Powell, the sum of $7,500.00 reflecting the actual medical bills of approximately $194.00 incurred on his behalf, the long history of headaches reported subsequent to this collision, and pain and suffering received as a result of this accident and other damages as a result of this collision.

Therefore, we make a total award of $2,020.00 to Christopher J. Powell, to be made payable to Violet G. Powell upon a showing of appropriate guardianship for the use and benefit of Christopher J. Powell, and an award of $7,500.00 to Jeffrey W. Powell, to be made payable to Violet G. Powell upon a showing of appropriate guardianship for the use and benefit of said minor child, Jeffrey W. Powell.


text:
    (Nos. 81-CC-2656, 82-CC-1043 cons.
    Harold Webee, Guardian of the Estate of Aimee Marie Clark, A Minor, and Debra G. Clark, Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 23, 1985.

    Holley, Keith & Mehlich, Giffin, Winning, Lindner, Cohen & Bodewes, P.C., and Bowen, Miller & Turngate (John Keith, Sue E. Myerscough, and Mark Turngate, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Sue Mueller and G. Michael Taylor, Assistant Attorneys General, of counsel), for Respondent.
   Poch, J.

Claimants seek recovery for damages arising out of an automobile accident on December 1,1979. Evidence concerning the facts was heard by a commissioner of this Court.

The following summarizes the evidence.

On December 1,1979, the Claimant, Debra Geralyn Clark, now Debra Geralyn Davis, was the driver of a Dodge Coronet automobile, traveling in a northerly direction on a township road in Noble Township, Richland County, Illinois. Aimee Marie Clark, age two, being the daughter of Debra, was a passenger in the front seat of the car being driven by her mother. The township road on which Debra and Aimee were traveling had a gravel surface and intersected to the north with State Highway 250. Debra Clark testified that she had never traveled on this country road before this day.

Gregory A. Amerman was traveling west in his car on State Highway 250, approaching the intersection of that highway with the township road upon which Debra and Aimee were traveling.

At such intersection on December 1, 1979, at approximately 12:30 p.m., Debra’s car failed to stop before entering the intersection and was struck on the right side by the car being driven by Mr. Amerman. The collision caused both vehicles to leave the intersection and to come to a stop in a field to the northwest of the intersection.

At the time of the accident there was no stop sign in place to control the traffic traveling north on the township road at the point of its intersection with State Highway 250. The terrain in the area of the intersection is generally flat, and at a distance of 200 to 300 feet from the intersection with Route 250 a driver has a clear view of approaching westbound vehicles on Route 250, from a minimum of 400 feet to the east. Because of the flat approach to the intersection with Route 250, the intersection is visible for a great distance to a northbound driver such as the Claimant. At the time of the accident the weather conditions were clear and most of the crops planted in the vicinity of the accident had been harvested, thereby eliminating possible obstruction of view.

The Respondent, through the Department of Transportation, was responsible for the maintaining of such stop signs, and pursuant to the Department of Transportation’s policy made annual inspections of all signs, the last of which, in the matter before the Court, was made on February 20, 1979, at which time it was found to be in place. Throughout the rest of the year, the Department of Transportation merely depended upon reporting of missing signs by law enforcement agencies, local Department of Transportation employees, and private citizens.

Although the Respondent did not have actual notice of the missing sign prior to the accident, Claimant relies on the theory of constructive notice in that a number of Illinois State Police regularly patrolled the State highway, including the portion at the intersection with the township road. Claimant also relies on testimony to the effect that two local Department of Transportation employees travelled the said State highway on an “everyday” basis.

John Muhn, a witness for the Claimant, testified that he knew the sign was missing for a period of one month to six weeks in that he travelled the State highway on a daily basis, but did not report it because of the frequency of travel of Department of Transportation trucks and State police.

State Trooper Charles Martin testified that while at the accident scene he was told by others that the stop sign had been missing for approximately 30 days. It is also noted from testimony of witnesses at the scene following the accident, that the sign was actually missing and not on the ground.

There is no question that Debra Clark and Aimee Clark both received serious injuries from the accident.

There is no question but that the State of Illinois through the Department of Transportation had the duty to maintain and repair the stop sign controlling the northbound lane of traffic to the township road which intersected with State Highway 250.

The State of Illinois does have the duty to exercise reasonable care in the maintenance and care of its highways, in order that defective and dangerous conditions likely to injure persons using the highways shall not exist. Crouchet v. State, 21 Ill. Ct. Cl. 157; Thompson v. State, 24 Ill. Ct. Cl. 219.

In Di Ori v. State, 20 Ill. Ct. Cl. 53, the Court of Claims has applied the same rules of law pertaining to notice in suits against the State involving defects in highways as pertain to suits against municipalities involving injuries caused by defective conditions in sidewalks. That rule of law provides that a local entity is not liable for any injury unless it has either actual or constructive notice of the condition that is not reasonably safe for a sufficient time prior to the injury to have taken corrective action. Baker v. City of Granite City (1979), 75 Ill. App. 3d 157,160, 394 N.E.2d 33.

Since the Claimant concedes that there was no evidence that the Respondent had actual notice, it must rely on the theory of constructive notice. The Claimant maintains that by the exercise of reasonable care and diligence, the Respondent might have known of the condition, and cites Baker, supra.

The question then is whether or not the Respondent failed to exercise ordinary care in not replacing a sign that had been missing for approximately 30 days, given the facts of daily travel on the State highway, intersecting with the township road, by Illinois State troopers and Department of Transportation maintenance trucks, and was, therefore, the proximate cause of the accident in question.

Whether the Respondent is to be charged with constructive notice that a stop sign is missing depends upon the facts of the particular case. (King v. State, 30 Ill. Ct. Cl. 457.) The evidence at trial indicated that the sign was missing for a period of a month, possibly as long as six weeks. Although this may appear to be a long period of time, it should be noted that the absence of a stop sign on a rural, gravel-topped road is not likely to be noticed as quickly as on a major thoroughfare. (King, supra, at 459.) In King, supra, this court declined to find liability where the missing stop sign was located in a small town, and the sign had been down for approximately three weeks. Although in the instant case, the sign may have been down for a longer period of time, it should be noted that a sign on a lightly traveled rural road is less likely to be noticed than one located in a small town or village, as in King. Hence, a longer period should be allowed, before the Respondent is charged with constructive notice.

The evidence indicated that District 7 contains 200 miles of interstate, 1,200 miles of primary non-interstate road and over 25,000 signs. All signs are inspected at least once a year. The sign was inspected on February 20,1979, and found to be in good order.

The testimony in the record indicates that annual inspection is sufficient to determine whether a sign is adequately attached to its post, and it is unclear as to whether semiannual or even quarterly inspections would have revealed the absence of the sign. The sign was not found in the vicinity of the post, and, therefore, it would be reasonable to conclude that the sign was stolen or removed by an unknown person. If the sign was so removed, then, only constant and continuous inspection of all signs in the district would be effective to prevent the removal thereof. In view of the number of signs in the district, such a requirement would be unreasonable.

It should be noted that Claimant’s evidence does not conclusively establish that the Respondent’s employees were in a position to notice the missing sign. Testimony of Trooper Charles Martin establishes that he travels on Route 250 approximately every other day. There is no evidence in the record to establish that Trooper Martin, or any other trooper, regularly traveled the gravel township road upon which Debra Clark was traveling. Nor is there any evidence to suggest a reason why Trooper Martin, or any other trooper, should routinely patrol such a minor, unpaved, country road.

We do not believe that a finding of constructive notice is justified under these facts and circumstances.

Aside from the question of notice hereinabove discussed, we are of the opinion that the evidence supports a finding that the proximate cause of the accident was Claimant Debra Clark’s failure to yield to oncoming traffic from her right upon entering the township road intersection with the State highway.

In addition to the statutorily imposed duty to yield to traffic approaching from the right, other factors required the Claimant to yield to the Amerman vehicle. Given the fact that the Claimant was traveling on a gravel road preparing to intersect a State highway, she was on notice that “she was approaching an intersection with a preferential highway even though she saw no stop sign.” (King v. State (1975), 30 Ill. Ct. Cl. 457, 463.) The Claimant also testified that in all of her prior experiences with intersections such as this one, there had been a stop sign in favor of the highway traffic. Given this awareness, it was incumbent upon the Claimant to yield to any approaching traffic. Had the Claimant been in the exercise of proper care for her safety and the safety of others, she would have seen the approaching Amerman vehicle. From the evidence adduced through testimony of witnesses and exhibits admitted into evidence, it is reasonable to conclude that Claimant Debra Clark’s failure to yield was the proximate cause of the accident. Based on the foregoing, it is hereby ordered that these claims be and hereby are denied.