text:
    (No. 6137
    Jerome Miller, Claimant, v. State of Illinois, Respondent.

      Opinion filed, September 7, 1978.

    Callis, Filcoff & Filchoff, Attorneys for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant in this cause filed a claim for time illegally served in an Illinois penal institution, as set forth in Ill. Rev. Stat., Ch. 37, para. 439.8, sub-para, (c), 1969.

This claim was filed on May 17,1971. The parties have stipulated as follows:

“1. That the record on appeal to the Fifth Appellate District of Illinois, and shall be admitted into evidence without objection by either party.
2. That the Transcript of Trial of People of the State of Illinois v. Jerome Miller, shall be admitted into evidence without objection by either party.
3. That Claimant’s Exhibits .1-6 shall be admitted into evidence without objection by either party.
4. That Respondent’s Exhibits 1 & 2 be admitted into evidence without objection by either party.
5. That both parties rest their respective cases.”

Claimant was imprisoned three and one-half years in the State of Illinos and was released on November 19,1970. He had been found innocent in a second trial on a charge of murder.

The Claimant was originally convicted before the Circuit Court of Randolph County of murder and armed robbery in September of 1967. The “State’s Attorney and Judge’s Official Statement of Facts” issued on September 28, 1967, which was authored by the State’s Attorney and concurred in by the trial judge, stated:

Defendant (Jerome Miller, Claimant herein) on the night of May 11, 1967, — committed robbery at the Chester Bridge Tool House, and killed Joseph Gagnepain, toll house keeper, by shooting him through the head with a .38 caliber revolver. He received approximately $40.00 in nickels, dimes, and quarters, and $11.00 in one dollar bills, which money and revolver was found in the back of defendant’s car which he parked at the toll house while he went to work at St. Louis. On arriving home from work at 2:30 p.m. on May 13,1967, defendant was apprehended, and on June 6,1967, was indicted by the Grand Jury. He plead not guilty and the case went to trial on September 5, 1967, but in the middle of the proceeding defendant changed his plea to guilty, and was sentenced on September 25,1967, to the Illinois State Penitentiary.

Claimant appealed his conviction and the Appellate Court of Illinois, Fifth District, held that the record did not disclose that at the time the defendant (Claimant herein) changed his plea from not guilty to guilty, whether inquiry was made in open Court and answers given demonstrating that defendant comprehended the nature of the crime and punishment, acceptance of defendant’s plea of guilty was erroneous. Reversed and remanded. People v. Miller, 123 Ill. App. 2d 473, 260 N.E.2d 312 (1970).

The Appellate Court stated in its opinion on 260 N.E.2d at 314, that on September 5,1967, the case came on for trial and defendant’s counsel (Robert H. Rice) in the presence of defendant and the State’s Attorney and the court reporter in chambers stated as follows:

“We are about to commence the selection of a jury in the case of the People v. Jerome Miller, and there are matters that I do wish to put on the record at this time. I am the retained counsel of this Defendant and I will give him the best defense of which I am capable in the Court of this trial but I do want it on the record at the outset that I have advised Miller and believe that he has no chance of obtaining a not guilty verdict in this case. I have practiced criminal law for sixteen years. I have advised this Defendant that the only chance or issue that he is really facing before this jury is whether or not he will receive the maximum death penalty. . .”

As indicated, the Claimant herein pleaded “guilty” to the charges of murder and robbery halfway through his trial. As stated in the Appellate opinion on 260 N.E.2d at 315 at the mitigation hearing a few weeks after the trial, the Trial Court inquired of the defendant (Claimant herein), “Mr. Miller, do you have anything you wish to say?” Defendant responded, “I only have to say, sir, is that there wasn’t anything Mr. Rice said to me or any evidence the State’s Attorney presented or anything any of the witnesses said that made me change my mind and plea. I did that on a personal basis only.” To this, the Court responded, “You did this on your own? In other words, what you are telling the Court is you were not influenced by what they said, is that correct?” The defendant answered, “Yes sir, that is correct.” The Court then inquired, “Is there anything else?” And the defendant answered, “No, sir.” The Court then proceeded to pronounce the sentence.

The Claimant was retried on November 16, 1970, and was found innocent of all charges related to the incident in question by a jury. The State presented numerous witnesses and the defendant testified that he did not kill or rob the victim in this case, although he was in the area of the crime on the night the crime was committed, he did own a .38 revolver, and he did have a box full of change in his trunk which contained money he was saving to buy his wife a vacuum cleaner.

As originally enacted, Section 8(c) of the, “Court of Claims Act,” required a Claimant seeking damages for unjust imprisonment to prove his innocence of the crime for which he was imprisoned. The section provided:

“(c) — All Claims against the State for time unj ustly served in prisons of this State where the persons imprisoned proved their innocence of the crime for which they were imprisoned...”

This provision gave rise to many problems. Often the Court was called upon to retry criminal cases long dormant, after the memories of witnesses had faded, and evidence was no longer available or had changed with the passing of time.

Since the Court could not rationalize any intent by the Legislature to reward perpetrators of crimes who might allege and prove technical errors in their conviction, the Court adopted a rule requiring a Claimant to establish by a preponderance of the evidence that he did not commit the act which constituted the crime for which he was convicted. Dirkans v. State of Illinois, 25 Ill.Ct.Cl. 343 (1965).

Subsequently, in order to obviate the problems inherent in the administration of the statute, the legislature amended Section 8(c) to require that one who seeks to recover for time unjustly served in prison must first have received a pardon on grounds of innocence. See Ill. Rev. Stat., Ch. 37, Sec. 439.9(c).

However, at the time Claimant instituted this action, this amendment was not in effect, and Claimant therefore bears the burden of establishing by a preponderance of the evidence, his innocence of the “fact” of the crime for which he was imprisoned. Valentine Harpstreith v. State of Illinois, Ill.Ct.Cl.

The law in Illinois is clear that Claimant must prove his innocence in order to entitle him to an award by the Court of Claims. The burden is upon Claimant to prove by a preponderance of the evidence (1) that the time served in prison was unjust; (2) that the act for which he was wrongfully imprisoned was not committed by him; and (3) the amount of damages to which he is entitled. Dirkans v. State of Illinois, supra.

It is the opinion of this Court that the record in this case stops far short of proving that the Claimant was innocent of the crime of which he was charged.

The alleged statement Claimant made to arresting officers shortly after his arrest implicating him in the crime and the other evidence set forth in the record, including his remarks in his mitigation hearing before sentencing, were not rebutted in the second trial.

It is the opinion of this Court that Claimant’s evidence does not sustain his burden of proving by a preponderance of the evidence that the act for which he was wrongfully imprisoned was not committed by him.

Claim is hereby denied.


source: Caselaw Access Project

author: Holderman J.

license: Public Domain

text:
    (No. 6254
    Robert S. Dorsey, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 13, 1977.

    Ross Armbruster, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber and Lawrence W. Reisch, Jr., Assistant Attorneys General, for Respondent.
   Holderman J.

This claim arises from personal injuries suffered by Claimant while he was an inmate at Menard State Penitentiary.

The Claimant, Robert S. Dorsey, was an inmate at the Menard State Penitentiary on March 6, 1970. He was one of those assigned to work at the slaughterhouse, and both he and his assailant were classed as convicts who could be trusted sufficiently to be let out of the penitentiary proper to work at the slaughterhouse on the farm.

When Claimant came out of the dining room after lunch, he was struck on the left leg with an instrument which was afterwards found to be a baseball bat. As he bent over to rub his leg, he was hit on the head. The evidence is to the effect that he did not know the person who hit him, except that his name was “Steven, Stevens, or Steve” who was also an inmate at the penitentiary and who also worked in the slaughterhouse.

The record is completely devoid of any indication of a dispute between the individuals involved in this matter and there is no evidence of any kind to show there had been an argument or fight between the two men.

The record discloses that there were between 100 and 125 inmates assigned to the farm and there were approximately eight guards.

As a result of the blow on the head, Claimant suffered rather severe physical damage and is still not completely recovered.

Claimant alleges that the State of Illinois was negligent in not having more guards present to prevent instances such as the one causing the unfortunate injury to Claimant, and he also alleges that the State should have known that the assailant was dangerous. The record indicates, however, that neither of the individuals involved had shown any propensity for violence or causing trouble. The fact that they were both assigned to work outside the walls, practically as trustees, would indicate that the prison authorities were justified in their selection of these two individuals to do the work they were doing.

The area adj oining the door out of which Claimant came and where he was struck on the head, was also used for recreational purposes where baseball and other sports were engaged in.

Claimant also alleges that the State was negligent in allowing athletic equipment, such as baseball bats, to be on the grounds where the incident took place.

The rule in the State of Illinois and other jurisdictions is that before the State can be held liabile in a situation such as the present one, the State would have had to have knowledge of the dangerous propensities of the assailant, Stevens, and guarded against him.

The following citations support the position of the State that it was not negligent in this particular case because the record is devoid of anything that would have put the State on notice that the attack, which did occur, might have occurred.

In a 1970 decision, City of Lexington v. Greenhow, 451, S.W.2d 424, 41 A.L.R.3d 1018, a man who was arrested by the city police was attacked by another inmate in the city jail. No officer was present at the time of the attack. There was, however, no evidence that the assailant had any propensity for violence. In denying a recovery for the injured inmate, the Court said:

“In the instant case there is no proof that appellant had any knowledge of Hamilton’s violent propensities...
The jailer is not an insurer of the safety of the prisoners under his control. The city having no reason to anticipate the violent outburst on the part of Hamilton, it is our opinion that the plaintiff failed to make out a case of prima facie negligence. Had Hamilton manifested any roughness or violence prior to his attack upon appelle, the result would be different.”

In a 1957 decision, Justice v. Rose, 102 Ohio App. 482, 2 Ohio Op. 2d 39, 144 N.E.2d 303, an action was brought against a sheriff for the death of a mental patient who was the victim of assault by a fellow prisoner in jail. The Court stated as follows:

“In all the cases where liability of the officer has been sustained for injuries inflicted by another prisoner the facts show a willful and known neglect, in that the officer failed to prevent violence, which was known, or in the exercise of ordinary care should have been known, by him.
In the instant case the alleged acts and omissions of negligence are of a different character. There is no allegation that the sheriff knew of, or had reason to anticipate any trouble in the jail or danger of injury to Clair Justice; there is no allegation that sheriff Rose knew that Carl Baldwin was a vicious man, nor is there an allegation of any other facts or circumstances from which it may be inferred that the sheriff had reason to take extra precautions for the protection of the decedent.
The sheriff cannot be charged with negligence in failing to prevent what he could not have reasonably anticipated. The authorities unanimously hold that an officer owes to prisoners in his custody and control the duty to exercise ordinary care for their protection. But in the absence of an allegation of facts sufficient to show that the officer had reason to anticipate violence and that he failed to prevent it, there can be no liability. Had the situation been reversed and had Baldwin, a common prisoner, been killed by Justice, an insane prisoner, a different question as to liability would be presented.”

In the case of Fleishour v. U.S. 244 F. Supp. 762 (D.C.., Ill.) plaintiff, while asleep, was struck with a fire extinguisher by another prisoner. The issue was whether it was negligent to place approximately 40 prisoners, including many with assaultive records, in a single dormitory room with various objects present which could be used as weapons. The Court held that the defendant was not negligent. The Court said at page 767:

“A number of penologists of long and extensive experience in both the Federal and State prison systems testified that when prisoners are transferred from an institution where they have not made a satisfactory adjustment and have run into conflict with the guards and other authorities, it is accepted practice to give them an opportunity to make a fresh start at the transferee institution and not treat them as troublemakers unless they warrant it by their conduct at that institution. Accordingly, they expressed the opinion that the dormitory sleeping arrangements here involved were reasonable.
These same experts pointed out that all aspects of prison life which seek to encourage rehabilitation and responsible conduct by prisoners inevitably involve calculated risks. Most of those incarcerated have greater or lesser assaultive tendencies and the only certain way to insure against prison episodes is by complete isolation which is not only physically very difficult, if not impossible, but also least likely to induce positive attitudes and the rehabilitation of persons so treated.
Accordingly, it is, we are told, standard practice in modern penal institutions to take calculated risks in various aspects of prison life, housing, work, recreation, religious worship and others, so that prisoners may learn to get along with other persons as part of the rehabilitation process. The result is, from time to time, there occurs an episode such as that here involved in which the gamble is lost and another prisoner is injured.
(5) It was the opinion of all the experts who testified that the officials at McNeil had acted reasonably and in a manner consistent with accepted prison practices at the time here involved. In the face of such testimony, the Court cannot conclude that plaintiff has established by a preponderance of the evidence that these officials were negligent and judgment must therefore be entered for the defendant.”

The record clearly indicates there was nothing in the records of either individual that would cause the State of Illinois to anticipate or foresee an assault by the assailant.

The State is not an insurer of the safety of persons under its control.

It is the opinion of this Court that the Claimant has failed to prove the State was negligent and an award is hereby denied.


author: Holderman, J.

text:
    (No. 6474
    Virgie Wright, Administrator of the Estate of Anthony Jones, Claimant, v. State of Illinois, Respondent.

      Opinion filed August 3, 1978.

    Mahoney & McArdle, by Joseph P. Buell, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul Wexler, Assistant Attorney General, for Respondent.
   Holderman, J.

The Claimant, Virgie Wright, administrator of the estate of Anthony Jones, deceased, brings this action for negligence against the State of Illinois. Said negligence is alleged to have caused the death of Anthony Jones on January 27,1971, while he was an inmate at the Illinois State Training School for Boys at Sheridan, Illinois.

The alleged negligence consisted of Dr. Smith, the State physician, prescribing the adminstration of Thorazine in amounts of 100 m.g. to the decedent when the Physical Desk Reference suggested 25 m.g. and where the decedent had a known history of asthma.

There are five weighty transcripts of medical testimony, one doctor testifying for Claimant and three for Respondent. The doctor testifying for Claimant tends to uphold Claimant’s case while Respondent’s doctors deny the negligence.

The decedent was last injected with 50 m.g. Thorazine on January 24,1971, but his death did not occur until January 27, 1971. During those three days, decedent was conscious, alert and active and his bronchial rales actually improved by the date of his death.

Claimant’s case is based largely upon the dosage prescribed by the treating physician and administered three days before his death and contends that there was sufficient negligence to cause the death of decedent.

The Physicians’ Desk Reference, in dealing with the drug Thorazine, indicates that a dosage of 25 m.g. is recommended.

Pertinent parts of the medical testimony show that Dr. Smith had practiced medicine over 25 years at the time of the decedent’s death and had been a physician at the Sheridan institution for over 20 years. He had prescribed Thorazine for 16 years prior to 1971 to previous patients, many of whom were asthmatics, with no adverse reactions.

Dr. Smith had seen the deceased on at least 18 separate occasions and his testimony indicated that he was thoroughly familiar with the drug Thorazine and the patient, Anthony Jones.

The crux of the issue of negligence in this case is whether the intramuscular injections of 100 m.g. of Thorazine, in light of the general standard of care and of the recommendation of a lower dosage in the Physician’s Desk Reference, constituted a breach of the duty of care. Dr. Smith testified that he had in the past given intramuscular dosages or 100 m.g. of Thorazine to other patients without any bad after effects and that this dosage was actually below those used in other psychiatric hospital.

Dr. Valentine Popa, Respondent’s witness, who at that time was Chief Physician at the Asthma Clinic at Billings Hospital, testified that he had used Thorazine on asthmatic patients in the past without any bad side effects. He further testified that he did not have many agitated patients at that time and had never personally administered dosages of 100 m.g., but he stated that he was aware of other doctors who did use 100 m.g. dosages on asthmatic patients.

Respondent’s other expert witness, Dr. John Davis, is a specialist in psychopharmacology as well as a teacher, lecturer, and author on the subject, and also is a Professor of Psychiatry at the University of Chicago School of Medicine and Director of Research at Illinois State Psychiatric Institute. Dr. Davis had personally conducted extensive research on the effects of Thorazine for a seven-year period while working with the National Institute of Health.

According to his testimony, the dosage used in most of those tests were 100 m.g.’s administered by intramuscular injection, the same amount as was given to decedent. Dr. Davis further stated that in his actual practice he had given dosages as high as 6,000 m.g.’s of Thorazine per day, seldom using less than 400 m.g. intramuscular dosages and that ‘TOO m.g.’s would be the standard injection that most people would use.”

The conclusion that 100 m.g.’s of Thorazine is not only a safe dosage, but a standard and common one, is supported by the testimony of three doctors — Dr. Smith, who had extensive experience with both the drug and the patient; Dr. Popa, who had considerable experience with asthmatic patients and the drug in question; and Dr. Davis, who had studied and researched Thorazine for seven years and whose almost overwhelming credentials manifest an uncommonly high level of expertise in the field of drug research. This conclusion was contradicted only by Dr. Farg Loutfy, an internist, who was Claimant’s expert witness. In Dr. Loutfy’s opinion, the usual dosage of Thorazine was 25 m.g., the same amount as that recommended in the Physicians’ Desk Reference.

It is suggested that Dr. Loufty’s testimony, at its best, is not of probative value. The record, pages six and seven, show Dr. Loufty’s experience to have beep confined entirely to the field of internal medicine. He had no special education, or practice in neurology or psychiatry. Evidence is lacking that Dr. Loufty, as a medical man, had occasion ever to prescribe or administer Thorazine to a patient. Further, there is no evidence that Dr. Loufty had any experience in treating any patient with asthmatic symptoms complicated by the emotional distrubances and afflictions from which the decedent was suffering at the time of and just before his death. There is no evidence, in fact, that Dr. Loufty had ever observed any patient who exhibited the symptomatology recorded in decedent’s medical history. The direct examination of Dr. Loufty can be best described as an attempt to bolster, or support a very general statement in the Physicians’ Desk Reference rather than to provide medical testimony of a qualified expert familiar with the use of Thorazine in treating perons afflicted with severe emotional disturbances.

The evidence indicates that the deceased had been an inmate at the Illinois State Training School on previous occasions and had had a rather troubled career. The evidence shows that at the time the dosage was administered he was in a highly agitated condition and had to be given the injection by force, that he was uncooperative threatening to cause trouble and was, on the whole, a very unsatisfactory patient.

The evidence further shows that the deceased, despite warnings by Dr. Smith and other personnel at the hospital, insisted on smoking and that he had been caught smoking cotton as well as cigarettes while he was at Sheridan, both of which were injurious to his asthmatic condition.

The propriety of administering a dosage of 100 m.g., in light of the fact that the Physicians’ Desk Reference recommends a lower dosage, was characterized as a significant issue during the hearing and in Claimant’s brief. Claimant cites in her brief Ohligschlager v. Proctor Community Hospital, 55 Ill. 2d 411, 303 N.E.2d 392, which stated that “Where a drug manufacturer recommends to the medical profession (1) the conditions under which its drug should be prescribed; (2) the disorders it is designed to relieve; (3) the precautionary measures which should be observed; and (4) warns of the dangers which are inherent in its use, the doctor’s deviation from such recommendation is prima facie evidence of negligence.

Dr. Loufty, Claimant’s own doctor, testified that smoking could worsen an asthmatic condition. The testimonies of a nurse and guard indicated that on the date of death, burning cotton and paper were found in the room of decedent on the window ledge near his body.

Claimant bears the burden of showing by a preponderance of the evidence that the acts of the Respondent proximately caused decedent’s death. It is contended by Claimant that this burden has been sustained merely by the testimony of one doctor out of four who testified and by the fact that the dosages of Thorazine given to decedent were above those recommended in an ordinary handbook written by various drug companies. To find that this meager showing constitutes a preponderance of the evidence would necessitate a total disregard for the testimony of three other doctors — Dr. Davis, an expert in the use and effects of Thorazine; Dr. Popa, an expert in the treatment of asthma; and Dr. Smith, a physician with substantial experience in the use of Thorazine, the treatment of asthma, and the personal treatment of decedent. It would also require agreement with the theory, implicit in Claimant’s argument, that proximate cause is established by the mere fact of a deviation from the manufacturer’s recommendations on drug dosage. A scrutiny of the record indicates not only that the dosage of Thorazine was not the proximate cause of death, but that it was not even the cause in fact.

The essence of Dr. Loutfy’s opinion was that Thorazine is a general nervous system depressant; that this causes a depression of the respiratory system along with the depression of other functions; and that 100 m.g. was too high a dosage, causing a respiratory failure. This opinion was contradicted by several points made by the other three doctors, the consensus being that the dosages of Thorazine given to decedent three days prior to his death could not have been and was not, in fact, the cause of death.

Dr. Smith testified that the use of Thorazine in a patient with the type of asthma which the decedent had would operate to prevent the anxiety and tension that triggers attacks, rather than to aggravate the condition. Dr. Loutfy, Claimant’s witness, agreed that these attacks are caused by emotional stress and that it would be desirable to try to decrease the possibility of an attack.

Dr. Loutfy stated that Thorazine can cause a state of respiratory depression, but Dr. Popa testified that if the Thorazine caused this condition, it would have done so immediately rather than three days later. He added that a person who was in a state of respiratory depression would be comatose. The decedent was last injected with 50 m.g. of Thorazine on January 24,1971, but his death did not occur until January 27, 1971. During those three days, the decedent was conscious, alert and active, and his bronchial rales had actually improved by January 27,1971.

Dr. Davis testified that, contrary to Dr. Loutfy’s opinion, central nervous system depression and respiratory depression are not necessarily coexistent, indicating that while the decedent’s central nervous system may have been depressed by the Thorazine, his respiratory system would not, a fortiori, be depressed as well. The theory that Thorazine caused respiratory depression was discredited even further by Dr. Davis’ opinion that Thorazine can also act as a respiratory stimulant and that it, in fact, stimulates respiration in overdose. Thus, even if Claimant’s allegation that there was and overdose of Thorazine is correct, it would have stimulated rather than depressed the decedent’s respiration.

The strongest evidence showing that the Thorazine injections did not cause the decedent’s death lies in the fact that even if Thorazine was capable of causing death by respiratory depression or otherwise, its effects would have worn off between the time of the last dosage and the time of death. The last dosage was 50 m.g. given on January 24, 1971, and the time of the fatal asthma attack was at approximately 7:45 p.m. on January 27,1971, an interim period of about 66 hours. Dr. Smith testified that Thorazine wears off in approximately 24 hours and Dr. Popa stated that it would have been almost totally excreted in two days’ time. Dr. Davis substantially concurred with this view, declaring that the peak activity of Thorazine occurs in six hours or less, that 50 percent of it disappears in 24 hours and that it would have been almost entirely metabolized by the time of death in this case. Even Dr. Loutfy admitted that the effects would only last for 12 to 18 hours. The weight of this evidence negates any possibility that Thorazine could affect bodily functions in any way 66 hours after it was last taken.

Finally, in light of all this evidence, the consensus of opinion was that Thorazine was not and could not have been the cause of death. Dr. Smith stated this and Dr. Davis agreed, adding that Thorazine, in his opinion, has never been the cause of any death in any quantity. Dr. Popa maintained that there was no connection whatsoever between the Thorazine and the decedent’s death, that Thorazine does not cause asthmatic attacks, and that there was also no connection between the injections of Thorazine and the worsening of the asthmatic condition. This last point was made also by Dr. Davis.

Dr. Smith, Dr. Popa and Dr. Loutfy all testified that asthmatic attacks are sudden, unpredictable and sometimes fatal. In the decedent’s case, these attacks were brought on by emotional upset, and in light of the fact that the evidence indicates that he was agitated at 1:15 p.m. on January 27,1971, several hours prior to his death, it appears that his fatal attack was brought on by his own activity. Thus, the decedent’s own obstreperous and turbulent state of mind was the instrument of his demise, rather than the Thorazine which, if anything, forestalled the fatal attack.

An autopsy was performed on decedent and the coroner’s report showed that he died of acute cardiorespiratory failure due to status asthmaticus and also showed signs of pulmonary emphysema and right heart enlargement.

The records show that the three doctors testifying for Respondent were specialists in this field and had broad experience, much greater than that of the single medical expert who testified on behalf of Claimant.

It is not necessary to comment on the lack of evidence supporting the claim for damages alleged by Claimant.

Claimant’s brief correctly cites authority for the proposition that, in Illinois, there is a presumption of some substantial pecuniary loss to a parent as a result of a child’s death. It is, however, only a presumption and is not conclusive proof that damages exist.

The testimony in the record indicates that outside of decedent’s early childhood, most of his life was spent living away from home. He spent the last three years of grade school in Maryville Academy, having been sent to live there by a Court Order. When he was approximately 14 years old, he moved out of his mother’s home and went to live with his sister for about six months. Thereafter, he was committed to the Illinois Youth Commission upon conviction for rape, deviate sex conduct and aggravated assault. A month later, he was transferred to the Illinois State Training School for Boys where he was paroled on June 10, 1967. About three months later, he was returned from parole for fighting with his mother. He was again paroled on November 21, 1967 but was returned in less than a month for three counts of assault. From that period to his death in 1971, the decedent remained away from home under state supervision.

The decedent’s mother testified that her son worked in a restaurant and gave her a portion of his salary. She could not, however, recall the date of his employment or his age at the time. At the very best, the arrangement could not have lasted very long considering the fact that decedent had spent the last several years preceding his death away from home.

It is the opinion of this Court that Claimant has failed to prove (1) that the State was negligent; (2) or that the State caused the death of decedent; and (3) that Claimant was free from contributory negligence.

This claim is denied.


text:
    (No. 6482
    Jewell McDougle, Personal Representative of Jerry Williams, Deceased, Claimant, v. State of Illinois, Respondent.

      Opinion filed October 30, 1978.

    Goldenhersch & Goldenhersch, Attorneys for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman and Douglas Olson, Assistant Attorneys General, for Respondent.
   Holderman, J.

Claimant is the duly appointed administrator of the Estate of Jerry Williams, deceased. Claimant seeks an award against the State in the sum of $25,000.00 based upon alleged negligence and willful and wanton misconduct of medical personnel at the State Penitentiary Facility at Menard, Illinois, in treatment of the decedent’s injuries sustained as a result of an attack by a fellow inmate.

On the afternoon of February 3, 1971, a disturbance occurred at the prison among a certain group of inmates who had been assigned to clean the dining hall after dinner. While several inmates were still in the dining hall, inmate Sidney Bickham rushed in, stabbed one inmate, then chased inmate Jerry Williams until he caught up with him and stabbed him a number of times. Bickham then left the room but not before he had stabbed another inmate.

Sidney Bickham was ultimately tried and convicted of the murder of Jerry Williams, who died as a result of stab wounds inflicted on him that February afternoon of 1971.

After being attacked by convict Bickham, inmate Williams was carried unconscious to the penitentiary’s hospital. While in transit, inmate Williams bled profusely from a severe stab wound in the neck inflicted by Bickham. The inmate nurses had clamped the internal jugular vein which had been severed. This clamp appeared to stop further bleeding.

This incident occurred at approximately 5:00 p.m. on the day in question. Within five minutes after he was first notified of the incident, Lt. Anthony G. Gerulis, a guard at the Illinois Penitentiary, testified that he instructed a fellow guard to call Dr. Donald Wham, a prison physician. Dr. Wham arrived at the prison at about 5:45 p.m. When he arrived at the hospital, Dr. Wham went to the physician’s dressing .room and changed clothes before going to the operating room. When he arrived in the operating room, Williams was on the table with a surgical clamp on the jugular vein. It appears that at this time the bleeding was under control, the patient was responsive to questions, and was conscious.

Malcolm Little, an inmate serving as an assistant in the prison hospital, testified that when Dr. Wham entered the operating room, he took the clamp off the jugular vein and the decedent began to hemorrhage again.

Dr. Wham testified that he loosened the clamp that had prevented the bleeding and that the bleeding shortly began to continue freely. He stated he then attempted to replace the clamp and put pressure on the area but that the patient then went into a “shocky state” as a result of the rapid blood loss. Dr. Wham then stopped the proceeding and requested that Dr. Schneider, the staffs consulting physician, be called at which time Dr. Wham testified “I more or less turned the case over to him.”

There is some controversy as to whether or not Dr. Wham attempted to suture the jugular vein. Dr. Wham denied having tried to suture the vein and said “suturing a major vein in that area, is something I feel is somewhat out of my area of competence.” However, in direct contradiction to this, Dr. Schnieder testified that Dr. Wham apparently did try to suture the vein before he arrived. After Dr. Schnieder examined the patient, he decided he should wait for the anesthetist. An anesthetist was called and arrived after some delay. She then attempted to anesthetize the patient by mask in order to prepare for an endotracheal anesthesia. She failed to obtain sufficient muscle relaxation in the patient in order to insert an endotracheal anesthetic device through the throat. At that time, an attempt was made to introduce an endotracheal tube despite the fact that the patient was not asleep. The anesthetist then began to intubate the decedent whereupon the decedent went into respiratory arrest, vomited and aspirated the vomit. Dr. Schnieder attempted an emergency tracheotomy but the patient died.

Dr. Schnieder testified that if the vein that had been severed had been completely tied off, the patient would have survived. He further testified that aside from the complications that arose when the anesthetist began to intubate the decedent, there were no other facts that he felt contributed to decedent’s death.

The Respondent takes the position that the other wound, particularly the wound in the back that perforated the left lung and caused its collapse, was a major factor in the cause of decedent’s death and that the throat injury was not the proximate cause of death.

Dr. James McFadden, whose practice is limited to general surgery to the extent of 99 percent, was called as an expert witness. Dr. McFadden testified that in a case like the one involving the decedent, the first thing a doctor should do, where the blood vessel is clamped off, is. to evaluate the situation, determine the severity of the injury, and make all preparations to repair with adequate help. The doctor testified that the clamp should not be removed until the physician was adequately prepared to cope with the situation, and that to remove the clamp that is impairing free bleeding would be “asking for trouble.” With the large opening,in the jugular vein, sound medical practice would be to just tie the vein off. McFadden went on to testify, that in a case of profuse bleeding from an injured vein, anesthetic is contra-indicated because it would tend to lower blood pressure that is already too low. Any anesthetics utilized should probably be a local anesthetic.

The testimony of inmates Little and Dye pertaining to Dr. Wham’s state of sobriety need not be considered or evaluated in a decision of the case at bar. A careful review of the unfortunate scenario of events, which transpired at the Menard Penitentiary Hospital, more than adequately proved by a preponderance of the evidence that the agents of the State were at least negligent and that their negligence directly contributed to and caused the death of Claimant’s decedent.

In the first place, it was shown by a preponderance of the evidence, that at the time Wham arrived at the prison hospital, Claimant’s decedent was in fair condition. His blood pressure and respiration were stable and the bleeding from the severed jugular vein in his neck had been stopped through the use of a clamp placed by James Hornbuckle, a medical assistant, who was present. When Wham removed clamp, he was likely to encounter and did encounter a situation that by his own testimony he could not handle. He stated that suturing a major vein, such as that in the present case, was beyond his area of competence; however, Dr. Schnieder testified that Dr. Wham had attempted to suture the vein.

Dr. Schnieder attempted to place “additional” sutures, but when he failed, decided to wait for a nurse anesthetist to arrive. Schnieder had elected to call for an endotracheal anesthetic. Prior to administering such an anesthetic, it was necessary to put the patient into a sound sleep. Dr. Schnieder knew that the pentothal was available at the prison hospital but did not inject the patient with pentothal even though he considered himself qualified to do so. The pentothal, according to Dr. Schnieder, was not administered to the patient because Dr. Schnieder did not feel qualified to intubate the patient in order to administer endotracheal anesthesia. Further, Dr. Schnieder said that he did not attempt to give the patient pentothal because the patient had to be monitored as to respiration and circulation, and that one person could not do that, even though Dr. Schnieder and Dr. Wham were present. Schnieder testified that at the time the anesthetist arrived, the patient’s condition was fair and stable.

Instead of administering pentothal by injection, the anesthetist began to anesthetize the patient by mask preliminary to performing the endotracheal anesthesia. Dr. Schnieder testified that the patient must be in deep sleep in order to relax the muscles so that the endotracheal anesthesia can be administered. Although the patient could not be put to sleep with the gas that was administered by the anesthetist, no attempt was made to inject pentothal and even though the placement of the tube in the patient’s throat was contra-indicated and a very dangerous procedure, the nurse tried to place the tube in the patient’s throat at the same time Schnieder was conducting an emergency tracheotomy. The tube inserted through the patient’s mouth showed on the field of the tracheotomy. If the nurse anesthetist is to be believed, Claimant’s decedent was dead at the time she arrived, and Dr. Schnieder and Wham were waiting for her to begin administering an anesthetic.

The record in this cause is lengthy. Most of the testimony was taken by deposition and submitted by stipulation as evidence. A careful consideration of the record leads to the inevitable conclusion that Claimant’s decedent died directly as a result of not one act of negligence on the part of one individual, but as an unfortunate series of acts of negligence, any one of which might easily be found to have sustained an award to Claimant.

The uncontradicted medical testimony is to the effect that before the clamp which controlled the bleeding was removed, complete preparations for handling the situation after the removal of the clamp should have been made so the hemorrhaging could have been controlled. The evidence is overwhelmingly to the effect that no such preparations were made in this particular instance with the result that the patient died. There is also uncontradicted medical testimony to the effect that this vein could have been permanently tied off and the patient would have lived without any apparent difficutly.

Dr. McFadden testified that with wounds to the throat, such as those suffered by decedent, a correct handling of the situation would be required as would more delicate suture material and instruments and everything else which very likely would not be available on an emergency basis. Dr. McFadden further testified that in the event clamps were removed without proper precautions being taken to prevent hemorrhaging, a situation could arise where the bleeding could start again and go out of control, which is exactly the situation that occurred in the present case. Dr. McFadden further testified to the danger in giving anesthesia to a patient who is in the condition the decedent was before his death. He testified there was considerable danger of shock with general anesthesia and that the anesthesia should have been local. This doctor repeatedly stated that the most important essential was the controlling of the bleeding and everything else was secondary.

Claimant called as a witness on her behalf one Dr. Vincent P. Perna who testified that, in his opinion, the deceased died as the result of a laceration of the internal jugular vein. Dr. Perna testified that he had performed approximately 2,000 post mortem examinations and was familiar with types of injuries as sustained by decedent. He also testified that the tying off of a segment of the jugular vein does not induce any serious complications. Dr. Perna, in response to questions by the attorneys for Respondent, stated that, in his opinion, the primary cause of death was the injury to the jugular vein and the bleeding as a result thereof.

It is clear that the negligent medical treatment of a prison inmate can result in liability against the State. In Witte v. State of Illinois, 21 Ill. Ct. Cl. 173, 177, the following appears:

“There is no question from the testimony in this case that the state was negligent in the treatment of Claimant, and in its failure to furnish competent medical services after it assumed responsiblity of caring for him.”

In the case of Witte v. State of Illinois, the Court awarded Claimant monetary damages based upon the failure of penitentiary medical personnel to adequately treat an injured knee.

In De Weese v. State of Illinois, Claimant sought damages based upon the negligence of a prison guard in providing adequate supervision in the prison vegetable house. Claimant’s hand had been severly injured when a machine he was cleaning was turned on, apparently by other inmates. In sustaining an award in favor of Claimant against the State of Illinois, Justice Burks made the following observations:

“Claimant contends that the medical treatment and hospital care he received from prison officials and inmate nurses, following his injuries, were so grossly negligent that his permanent injuries, disabilities and his disfigurement were increased in severity; and that he endured unnecessary pain and suffering. If so, this would constitute a separate cause of action against the Respondent even if we had held the Respondent not liable for Claimant’s original injury.” De Weese v. State of Illinois, 28 Ill.Ct.Cl. 230, 236.

It is clear that the Respondent owed a duty to Claimant’s decedent to provide reasonable medical care for the injuries sustained by decedent. It was proven by a substantial preponderance of the evidence that such duty to provide reasonable care was breached by the Respondent through its agents; furthermore, the evidence clearly shows that the breach of Respondent’s duty directly and proximately resulted in the death of Claimant’s decedent.

Claimant’s decedent had worked at odd jobs and was a student in high school. He expired shortly after his 20th birthday. Prior to that, he had been in the penitentiary approximately three months. He had averaged earning $40.00 to $45.00 per week from his odd jobs. The evidence is uncontradicted that he would take his earnings and give them to his mother, who then gave him an allowance of $5.00 or $6.00 during the course of a week. The remainder of his earnings were used to buy groceries and to pay household bills. He planned to finish high school and obtain employment in order to help support his mother and siblings. As a student, Williams’ grades were B’s and C’s.

It is clear that the State failed in its duty to provide adequate medical care to the deceased. It is also clear that the decedent did furnish some support to his mother and that decedent being the age of 20 years, it could be assumed that this support would continue.

An award is hereby entered in the amount of $25,000.00 in favor of Claimant.


author: Polos, C.J.

text:
    (No. 6509
    Leslie H. Kent, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 11, 1978.

    Beaupre and Vogt, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Leslie H. Kent, seeks to recover the sum of $3,020.00, representing four months wages as an Administrative Assistant I at Manteno State Hospital from January 25, 1970, through May 27, 1970. Claimant also seeks additional damages claimed to have been suffered by him as a result of his failure to be paid during the period in question.

The essential facts are notin dispute. In December, 1969, Claimant was 33 years old, the father of five children, and was looking for employment. He applied for work at the Kankakee State Hospital. The Assistant Personnel Director at Kankakee State Hospital told him there was no opening there, but referred him to Cecil Martin, the Personnel Director at Manteno State Hospital.

On December 20,1969, Claimant went to Manteno State Hospital, and saw Cecil Martin. Martin told Claimant that they had an opening for Administrative Assistant I in the hospital’s so-called “Gateway Program.” Claimant filled out a job application form, and Martin asked him to supply a resume.

Martin told Claimant to return on December 28, 1969, to be interviewed by William H. Morgan, the Assistant Director of the Gateway Program.

On December 28,1969, Claimant returned and was interviewed by Morgan, who explained the nature of the work he would be doing, took him through some of the wards, and told him to returnon January 4,1970, to be interviewed by Jack Emmons, the Program Director.

Claimant spent January 4 and 5,1970, at the hospital being interviewed by Morgan and Emmons. At the end of January 5, 1970 visit, both Morgan and Emmons told Claimant that they wanted to hire him as an Administrative Assistant I. In Claimant’s presence they called Martin, the Personnel Director, and told him of their decision. Claimant immediately went to Martin’s office, and Martin told him that it would take approximately two weeks to complete the paper work necessary to hire him.

On January 18, 1970, Claimant returned to the hospital and told Martin that he had turned down two other jobs, and needed to start work because of pressing financial obligations. Claimant testified that Martin told him that he was going to Springfield the following week and while there, was going to try to work out the necessary details and paper work which would enable him to start work immediately.

Claimant said that on January 24,1970, Morgan called him at his home and told him that while Martin did not have all the details worked out, he should come to work the next day.

Claimant reported for work the following morning, and worked as an Administrative Assistant I in the Gateway Program from January 25, 1970, until May 27,1970, when he quit because he had never received a paycheck.

The Gateway Program had a staff of 450 persons, and charged with the medical and psychiatric care of 1,900 patients. Claimant served as an Administrative Assistant to Emmons, the Program Director, and Morgan, the Assistant Program Director. The minimum salary for Administrative Assistant I at the time was $755.00 per month.

Claimant said that during this period he constantly inquired as to when his pay was going to start, and was told that Mr. Martin was having trouble getting the paper work through Springfield. He was never told that he was not going to be paid, and he never agreed to work without pay.

In March, 1970, at the direction of Emmons, Morgan and Martin, Claimant took a Merit System examination for the position of Administrative Assistant I. He did not pass the exam, and retook it in July, 1970, and passed.

William Morgan, the Assistant Director of the Gateway Program, testified that they needed clearance from Springfield to hire Claimant, and that Martin, the Director of Personnel, was to obtain that clearance. Morgan said that on Friday, January 21,1970, Martin went to Springfield, but did not return during the working day. Morgan said he called Martin at his home over the weekend and told him that he would like Claimant to start work on Monday, January 24, 1970.

Morgan said that Martin replied that he had only verbal authorization to hire Claimant, but that written clearance would come Tuesday or Wednesday. Morgan said he then called Claimant, and told him,

“. . . that I had verbal assurance that this authorization, whatever it was, was coming, that we had nothing in writing and I could guarantee nothing; but if he was interested in coming in and taking that degree of chance we would start the next day.”

Morgan said that after Claimant reported for work, he repeatedly asked about his pay, and that he would in turn contact Martin. Morgan said that on several occasions Martin told him that he had received assurance from Springfield that the problem would be cleared up shortly.

It is clear that Claimant was never lawfully appointed as an Administrative Assistant I in accordance with the Personnel Code of the State of Illinois. Claimant nevertheless contends that he is entitled to cover compensation for the services which he performed for the State, at the request of the supervisory employees of the Department of Mental Health. Respondent’s position is that there is no basis for recovery in that Claimant never entered into an employment contract with the State, and this Court is without authority to enter an award based upon quantum merit.

Quite aside from the issue of whether this Court could enter an award based upon equitable principles, we find that Claimant is entitled to recover salary for the period he worked as an Administrative Assistant I at Manteno State Hospital. This precise issue was decided by this Court in Volland v. State, 10 Ill.Ct.Cl. 715. There the Claimant had been hired by the Superintendant of the Cicero Branch of the Illinois State Employment Service as a clerk. He worked for 64 weeks in that capacity, but was never paid. The State contended that since the Superintendant did not leave authority to hire Volland, there was no basis on which an award of salary could be made. However the Court did enter an award on the ground that the State had induced Volland to perform services for it, and had accepted those services, with knowledge that Volland had not been legally hired.

That same situation existed here. Claimant was told to report for work by the Assistant Director of the Gateway Program, and continued in his work with the full knowledge of both the Director of Personnel, and the Program Director. Further, Claimant turned down two jobs on the representations of those individuals that he would be hired for the job at Manteno. We think that Claimant reasonably relied upon the representations of the supervisory personnel that he was hired for the job of Administrative Assistant I, and it was upon their representations that he began work on January 25, and continued to perform that work through May 27,1970. Claimant had the right to rely on the apparent authority of these individuals to bind the State of Illinois, and to assume that they were acting within the scope of their authority in hiring him. While the technical requirements of the Personnel Code were not complied with, we think that a contractual relationship was established, and that the State may not now deny that such an agreement existed.

We therefore find that Claimant is entitled to be compensated as an Administrative Assistant I from Janaury 25, 1970 through May 27, 1970. The other elements of damage Claimant seeks are not recoverable.

Claimant is therefore awarded the sum of $3,020.00.


text:
    (No. 6574
    Herbert Gardner, Claimant, v. Howard Graupe, Individually and as Agent, Servant and/or Employee of State of Illinois, and the State of Illinois, Respondent.

      Opinion filed June 29, 1979.

    Donald G. Zerwer, Attorney for Claimant.
    William J. Scott, Attorney General; Donald Young, Special Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant filed his claim as a result of an accident which occurred on June 2,1972, at approximately 9:20 a.m. while Claimant was operating his motorcycle in a southerly direction on and along the Lake Street entrance ramp to the Edens Expressway. At a point where the entrance ramp merges with the southbound lanes, Claimant struck the right rear of a State of Illinois dump truck which was being operated in a southbound direction on the Edens Expressway by Respondent’s employee, Howard Graupe. At the time of the accident, Respondent’s truck was proceeding in the most westerly lane of the Edens Expressway and had its emergency flashing lights in operation.

Claimant alleges that Respondent, Howard Graupe, veered his truck from the southbound curb lane of traffic on the Edens Expressway into the merging lane where Claimant’s motorcycle was proceeding. The driver of the truck testified that he was driving at an exceedingly low rate of speed because sometime prior to the accident he had spotted a muffler lying near the curb and shoulder on the western most side of the expressway which he desired to pick up. He further testified that the motorcycle hit the right rear tire of his truck and that he did not see the motorcycle prior to impact.

In order for Claimant to recover, he must show he was free from contributory negligence, that the State of Illinois was guilty of negligence, and that the negligence complained of was the proximate cause of the accident.

This case is very similar to the case of Kloese v. State of Illinois, 30 Ill.Ct.Cl. 4. In that case, Claimant struck a truck belonging to the State which was on routine “ice and snow patrol” on the highway at the time of the accident. The evidence in that case, as in the present case, shows that the truck was well-lighted and that they were in operation at the time of accident. The weather was clear although the roads were snow covered. The truck stopped some distance ahead of Claimant and he was unable to stop his car before colliding with the truck. In that case, Claimant alleged Respondent was negligent when he stopped his vehicle in the middle of a roadway without displaying parking or emergency lights, in violation of certain provisions of the “Illinois Motor Vehicle Act.” This Court, in passing upon that case, used the following language:

“Notwithstanding the provisions of Section 120(f) of the “Illinois Motor Vehicle Act,” however, a State employee engaged in work upon a highway is held to a standard of ordinary care in performing his work. Creamer v. Rode, 37 Ill. App. 2d 148, 185 N.E.2d 345 (1962); Lusietto v. Kegan, 107 Ill. App. 2d 239, 246 NE2d 24 (1969). Ferrucci was, therefore, obliged to perform his work upon the highway as would an ordinarily prudent person under similar circumstances.”

The Court must conclude from the evidence before it, that Respondent’s truck was being operated with adequate lights to warn the motoring public. In our view, Claimant’s injuries were caused by his failure to keep a proper lookout and to keep his motorcycle under proper control.

This claim is hereby denied.


text:
    (No. 6778
    Francis L. Tittle and Vernon Tittle, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 19, 1978.

    John Lusak, Attorney for Claimant.
    William J. Scott, Attorney General; Saul Wexler, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Frances L. Tittle, has brought this action to recover damages for injuries she received in a fall on the premises of the Valley View Boys School at St. Charles, Illinois, on February 7,1971. Her husband, V ernon Tittle, has j oined in the claim to recover for the loss of consortium.

On February 7, 1971, Frances L. Tittle and some other members of her family traveled by car to the Valley View Boys School to visit her son, Russell. They arrived at approximately 2:30 p.m. and parked the car in front of the Attendance Building. Mrs Tittle left the car and walked up a sidewalk leading from the parking lot to meet her son. She returned with Russell and re-entered the car.

The Tittles left the school grounds for dinner, and returned at approximately 4:00 p.m. Tom Salemi, Mrs. Tittle’s son-in-law, was driving the car, and he parked in approximately the same place as he had previously.

Mrs. Tittle got out of the passenger side of the vehicle. She took one or two steps on the sidewalk leading from the parking lot when she slipped on a patch of ice and fell to the ground.

She described the ice patch on which she fell as approximately two feet square and one inch high. She said it was “lumpy” and mixed with dirt. Except for the portion of the sidewalk on which she fell, the rest of the sidewalk was clear. She further testified that it was daylight when she fell, and that she never saw the icy portion of the sidewalk before she fell.

Mrs. Tittle sustained a fracture of her left tibia and fibula. She was placed in the automobile after the fall, and a nurse from the school put a splint on her left leg. She was taken to Sherman Hospital in St. Charles, where her leg was x-rayed. She was then transferred to St. Anne’s Hospital in Chicago, where she remained for three weeks. She underwent surgery on the leg to correct a spiral fracture with distraction of the fragment of bone. An open reduction with internal fixation by use of pins was performed. After the operation, Mrs. Tittle’s leg was placed in a series of three plaster casts. The last cast was removed approximately four weeks after the accident, and she walked with the aid of crutches and underwent physical therapy for several months thereafter.

Frances Tittle claimed that she was still experiencing pain and difficulty with her left leg at the time of the hearing. She said the leg swelled if she stood on it for a long period of time. She also said that her lower left leg had a red coloration, and that she walked with a slight limp.

Vernon Tittle, the husband of Frances Tittle, testified that he lost time from his employment from March 22,1971, to July 5,1971, because he was required to care for his wife and family. He claims a loss of wages in the amount of $2,868.67, as well as loss of the services of his wife.

Steven Gentis, as employee of the Valley View Boys School, testified that on February 7, 1971, he observed the car parked in front of the main school building. He approached the car and saw Russell Tittle and several members of his family. He told them that they were in a restricted area, and asked them to park in the visitor’s lot.

Gentis said that the parking lot in which Claimant’s car was parked was reserved for official cars only, and that there was a visitor’s parking lot which was designated by signs.

Gentis also said that there was some construction work taking place near the site of the fall, from which shrubbery had been removed.

Claimants acknowledge that the State had no duty to clear the natural accumulation of ice and snow from its premises. Claimant argues, however, that once Respondent undertook to clear the sidewalk on which Mrs. Tittle fell, it owed an affirmative duty to use ordinary care in clearing the ice and snow. Claimant contends that the record establishes that Respondent attempted to clear the sidewalk, but that an icy patch remained which caused the injury to Mrs. Tittle.

Respondent contends that Claimant has failed to prove that the ice on which Mrs. Tittle fell was other than natural accumulation, or that the State aggravated a natural condition by its efforts to clear the sidewalk.

In De Mario v. Sears Roebuck and Co., 6 Ill. App. 3d 46, 50, the Court said, “In a ‘slip and fall’ case, there must be an affirmative showing by Plaintiff of an unnatural accumulation of snow or an aggravation of a natural condition by defendant before plaintiff will be allowed to recover.” Here, there has been no showing that the accumulation of ice resulted from anything but natural conditions. In De Mario v. Sears Roebuck and Co., supra, the Court further noted that mere removal of snow, which may leave a natural ice formation remaining on the premises, does not in and of itself constitute negligence.

The authority relied upon by Claimants is distinguishable. Claimant cites Sims v. Block, 94 Ill. App. 2d 215, 236 N.E.2d 572, (1968), for the proposition that landowners have a duty to exercise ordinary care in removing snow and ice. In Sims, however, ridges of ice which caused the plaintiff to fall were created by the defendant’s snow removal equipment, thus creating an artificial accumulation of ice and snow.

Here it appears that the walk in question was cleared, and that a residue of water or snow was subsequently mixed with a quantity of dirt. This was not an instance where an attempt to clear ice and snow created the dangerous condition. We find that Claimant has failed to establish that the State of Illinois violated any duty owed to Claimants. This claim is accordingly denied.


author: POLOS, C.J.

text:
    (No. 6805
    Patricia Hill, Claimant, v. State of Illinois, Respondent.

      Opinion filed August 30, 1978.

    Erwin M. Pearl, Attorney for Claimant.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, for Respondent.
   POLOS, C.J.

Claimant, Patricia Hill, has brought this action seeking to recover from the State of Illinois for injuries she received in an automobile accident on January 13, 1972. She alleges that those injuries were due to the State’s negligent failure to maintain Ridge Road at or near its intersection with Hubbard Street, in the Village of Thornton, in Cook County, Illinois.

On January 13,1972, at about 11:00 a.m., Patricia Hill was driving a 1971, Oldsmobile Cutlass in a easterly direction on Ridge Road, an undivided, two-lane highway. The eastbound lane was approximately ten feet wide, and the westbound lane was approximately 12 feet wide. The eastbound lane had a 26 inch wide paved shoulder, and the westbound lane had a 22 inch wide paved shoulder. It appears that there was a drop-off of approximately six inches from the paved shoulders to an unpaved dirt area adjoining the shoulders. In 1971, Ridge Road had been widened and resurfaced, and the paved shoulders installed. The State inspected and accepted the completed highway on December 3,1971 just two months before the date of the accident.

It had been snowing heavily in the hours prior to the accident. Ridge Road had been plowed at about 6:00 a.m., but high winds had caused drifting and the road was snow covered at the time of the accident.

Claimant was alone in her car, and coming from home and on her way to work. She described the weather as “very hazardous” and the road as “bad and slick”. She said that there were about six inches of snow on the ground, and ice underneath the snow. She said she had not traveled on Ridge Road very often, and had done so on this occasion only because she had run an errand on her way to work. She said she was not familiar with the condition of the shoulders of the road.

Claimant had been eastbound on Ridge Road for about two miles as she approached Hubbard Street. She was going about 20 m.p.h. She said that the road was completely covered with snow from shoulder to shoulder, and that neither the yellow center line nor the shoulders were visible. She said she was driving in the tracks made in the snow by proceeding traffic, when she looked ahead and saw a large truck westbound. She said the truck seemed to be close to the center line, and that when the truck was about 200 feet away she observed it weaving towards her. She said that she eased the steering wheel of her car to the right to get out of the way of the truck and that when she did so the right wheels of her car struck the shoulder and went down into a rut in the unpaved portion of the shoulder. She said she took her foot off the gas and eased on the brake pedal to slow her car to about 10 or 15 m.p.h., and tried to drive out of the rut. She said that she kept sliding back into the rut, when as she eased the steering wheel to the left, her car suddenly shot out of the rut into the on-coming lane of traffic and crashed into the truck which she testified had been weaving towards her.

Mrs. Hill suffered extremely serious and permanent injuries in the collision, including partial paralysis of her extremities.

John F. Renaud was in an automobile following Mrs. Hill. He testified that he was familiar with Ridge Road near its intersection with Hubbard Street, as he traveled it every day for a least ten years prior to the date of the accident. He said that as Mrs. Hill’s car approached the truck she edged her vehicle to the right, and that the right wheels of Mrs. Hill’s car dropped into a rut alongside and adjacent to the pavement. He said the truck was ten to 15 feet from Mrs. Hill when her car spun out of the rut and into its path.

Renaud said that he examined the shoulder of the road with a police officer after the accident. He said he observed that the surface of the shoulder was icy, and that there was a five to six inch drop-off between the roadway and the shoulder. He said that the shoulder itself was full of pot-holes.

Renaud added that the pavement was completely covered with ice and snow, but that the shoulder was visible.

Renaud said that he did not observe the truck which collided with Mrs. Hill’s car ever leave the westbound lane, and that he did not see it weave.

Burt Hill, the former husband of the Claimant, testified that he was also familiar with Ridge Road, as he had driven it every day for at least two years prior to the date of the accident. He said that he had driven over the road at about 9:00 a.m. on the morning of the accident and observed that the whole area was covered with drifting snow. He said that the snow must have been about six inches deep, and that he could not see the edges of the pavement.

Marlon Veldkamp was the driver of the truck involved in the collision. Veldkamp said he had come to a stop at the intersection of Williams and Ridge Road, and then proceeded westbound down Ridge Road in a straight path. He denied that his vehicle swerved or that it ever entered the eastbound lane of traffic.

The State owes a duty to those using its streets and highways to keep those roads in a reasonably safe condition. Schuck v. State, 25 Ill.Ct.Cl. 209. This duty extends to properly maintaining the shoulders of a highway for the uses for which they are reasonably intended. Lee v. State, 25 Ill.Ct.Cl. 29; Welch v. State, 25 Ill.Ct.Cl. 270. To recover in this action Claimant bears the burden of proving by a preponderance of the evidence that Respondent breached its duty of reasonable care; that the breach of duty was the proximate cause of her injuries; and that she was in the exercise of reasonable care for her own safety at the time of the accident.

The Court has carefully examined photographs of Ridge Road at the accident site. Those photographs show that the paved shoulder of Ridge Road was on the same level as the road itself, and was free of potholes. The photographs also show, however, that there was a deep drop-off from the paved shoulder to an unpaved area which adjoined the shoulder. It appears to the Court that the wheels of Claimant’s car dropped into the rut between the edge of the paved shoulder and this unpaved area that adjoined the shoulder. Testimony at trial established that the drop-off was approximately six inches deep.

We have previously ruled that the State is not bound to maintain a shoulder in the same condition as the paved surface of a highway, and that a difference of a few inches between the height of the pavement and the shoulder is not negligence per se. See e.g. Sommer, et al., v. State, 21 Ill.Ct.Cl. 259; Howell v. State, 23 Ill.Ct.Cl. 141.

In Sommer v. State, supra at 259, we said:

“We do not feel Respondent has a duty to maintain the shoulders of its highways in a manner that would insure the safety of vehicles turning off' the shoulder for whatever the purpose might be, and then attempting to return to the roadway while traveling at the same speed.”

In Alsup et al., v. State, 31 Ill.Ct.Cl. 315, we held that a six inch difference in the level of the pavement and the shoulder did not constitute a dangerous condition per se, and denied the claim where the driver of a vehicle lost control of his car while attempting to return his car to the highway.

Here Claimant was in control of her car when its right wheels dropped into the unpaved shoulder. She was in control of her car as she traveled for some distance in that manner, and only lost control of her car when, after several attempts, she drove out of the rut between the paved and unpaved portions of the shoulder.

Claimant had an opportunity to bring her car to a stop on the shoulder, but instead attempted to drive back on the highway without significantly reducing her speed. Particularly in view of the hazardous condition of the road, we think that she did not exercise reasonable care under the circumstances.

The Court regrets this unfortunate accident, but we must conclude that the negligence of Claimant was the proximate cause of her injuries.

It is therefore ordered that this claim be denied.


text:
    (Nos. 7097 and 7098, Consolidated
    Violet Nass, Administratrix of the Estate of Carolyn Jean Jones, Claimant, v. State of Illinois, Respondent. Geraldine Sullivan, Adminstratrix of the Estate of Judith Lynn Ator, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 13, 1979.

    Edward Zukosky, Attorney for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   POLOS, C.J.

These consolidated claims arise from an automobile accident which caused the deaths of Carolyn Jean Jones and Judith Lynn Ator on April 8, 1972. Both women drowned when an automobile in which they were riding left a highway and came to rest in a water filled pit.

Claimants raise two theories on which they seek to recover. They contend that the State was negligent in having failed to erect guardrails at the point where the car left the highway, and that an Illinois State Highway Patrolman, who arrived at the scene shortly after the car left the highway, was negligent in failing to rescue the girls.

Testimony establishes that on April 8, 1972, at approximately 9:45 a.m., Carolyn Jean J ones was driving a 1967 Mustang in a southerly direction on the U.S. Route 51 by-pass around Minonk, Illinois. Judith Lynn Ator was a passenger in the car. Both girls were 19 years of age. Approximately one-fourth of a mile south of First Street in Minonk, the highway curves. The automobile driven by Carolyn Jean Jones failed to negotiate the curve, and left the highway. The car traveled diagonally a distance of approxiamtely 70 feet to a ditch, crossed the ditch, and traveled another 145 feet to the water-filled pit. The car came to rest with its front end approximately 20 feet from the north bank of the pit, and 15 feet from the west bank.

Route 51 at the accident scene is a 24 foot wide highway with a ten foot wide shoulder that slopes away from the highway for drainage purposes. Adjacent to the shoulder is a ditch approximately five feet deep. A witness measured the closest lateral distance from the high water mark of the pond to the edge of the pavement and found it to be 54 feet, six inches. The girls left the highway considerably north of the pond, and traveled diagonally southwest over open terrain for approximately 215 feet before reaching the water.

Highway 51 at the accident scene is within the jurisdiction of the State of Illinois, and under the control of the Illinois Department of Transportation. The by-pass around Minonk was constructed by the State in 1964. The water filled pit in which the deceased’s car came to rest, known as a “borrow pit” was dug during construction of the highway. A borrow pit is an excavation made by a contractor during the course of construction to obtain additional material for building embankments.

Robert Blasius, an engineer employed by the Illinois Department of Transportation, testified as an adverse witness that during the course of construction of the highway, the State would have to approve the location of borrow pits dug by contractors. He also said that it would be better practice not to have a borrow pit adjoining the curve of a highway, as there was a danger of vehicles running off the highway at a curve.

Claimants introducted into evidence a portion of the design manual of the Illinois Department of Transportation in effect when the highway was built. The manual provides, in pertinent part:

“Guardrail is used at locations where vehicles accidentally leaving the highway would be subject to considerable danger. Generally, such points are roadways on embankments, highways with narrow medians, and roadside obstacles and hazardous structures ***.”

Evidence was introduced that on September 14, 1970, another automobile left Route 51 and went into the borrow pit. On the date of the accident, the speed limit at the accident scene was 65 miles per hour, and there were no guardrails along the curve.

There were several witnesses to the accident. Michael J: Kinney, a passenger in a northbound Chevrolet van, testified that he was in the back of the van when he observed the deceased’s car leave the road at approximately 45 to 50 miles per hour. He said the car did not flip over, but struck a number of obstacles between the time it left the highway and landed in the pond. He said the car went up into the air after it hit the embankment adjoining the shoulder, and bounced several times before landing in the pond.

Kinney and the driver of the van, one Anthony DeRosa, swam out to the car in an effort to rescue the girls. When they reached the car it had not yet totally submerged and the girls were visible through the window. At least one of the girls was calling for help. DeRosa said he tried to open the door on the passenger side but could not do so because of the water pressure against it. At this point, DeRosa began to have breathing problems in the cold water. A tire was floating in the water and Kinney used the tire to pull DeRosa to shore.

When the two men got back to shore and wrapped themselves in blankets, State Trooper Robert Martin arrived on the scene. DeRosa said that when Martin arrived, part of the Mustang was still visible, ten to 15 feet from the north bank of the pond.

Martin rolled up his pants legs, and waded about five feet into the water. At this point he was approximately ten feet from the Mustang. Martin returned to the shore and made no further attempts to reach the car.

Daryl Nelson arrived at the borrow pit before the Mustang sank and shortly after Martin arrived. Nelson said that Martin ordered everyone to stay out of the water.

Martin, who had been a State Policeman since 1968, was an experienced swimmer. He said that he had never received any instruction from the Illinois State Police on rescuing persons from submerged automobiles. Martin said that he was forced to leave the water because it was too cold, and that he made no further rescue efforts after he had left the water. He said that he had no knowledge whatsoever as to how to rescue persons in submerged automobiles. He said he thought that the girls in the car were dead when he arrived, and had no knowledge of how long they could have survived in an air pocket in the car.

Sometime later a wrecker arrived. A boat was sent for and when it arrived another rescue was attempted, but was aborted because of the cold.

At about 12:20 p.m., a scuba diver arrived with proper diving gear and attached two truck cables from the wrecker to the frame of the car so it could be pulled out of the pit. At this point, the car had slid an additional ten feet into the water, but was resting in no more than 12 to 13 feet of water. When the car had first submerged, it was in approximately seven feet of water.

The doors of the car opened easily after it was recovered from the borrow pit.

John L. Donovan, an expert witness, testified that he had made several escapes from submerged automobile and that car doors on a submerged car can be opened easily once they are completely covered with water and water pressure equalizes on the inside and outside of the door. He said that in a submerged car an air pocket typically forms near the back window of the automobile, which can sustain life for as much as 30 minutes.

Without objection, Donovan testified that in his opinion, the maximum survival time in the Mustang was from 20 to 30 minutes. He further stated that in his opinion, if somebody had opened the door of the car during that period of time, the girls would have been rescued.

Wayne Kasza was employed by the Illinois Department of Transportation as a design projects engineer. He was responsible for designing and implementing design aspects of new or reconstructed highway projects. He said that the Route 51 south of Minonk was constructed in March, 1964, and completed in August, 1965. He said there were general design specifications then in effect with respect to highways, which contained criteria for erection of guardrails. He said that when the highway was constructed the principal criteria for construction of guardrails was the height and fill of the embankment, combined with the degree of curve of the highway. He said that the road at the accident scene had a two degree horizontal curve and that the pavement sloped to the embankment of a ratio of approximately four to one. He said that according to the applicable design criteria when the highway was built guardrails were not required at the curve. He said that sometime in 1966 the criteria for placement of guardrails was changed, applicable to new construction. The new criteria established some additional factors to be used in determining whether guardrails were needed including the width of the shoulder of the road, and the condition of the shoulder and road.

He said that even under these new criteria, guardrails at this particular curve were not required. He further said that in 1967 and 1968 additional changes were made which generally incorporated certain safety criteria established by the Federal Government. These criteria were applicable to all new construction. He said that the current policy on the placement of guardrails would still not require that they be posted at the accident site.

On the date of the accident, Carolyn Jean Jones was 19 years of age, and had been employed by Farm Services, in Bloomington, Illinois, since January, 1972. She earned approximately $90.00 per week. She had never been married, had no children and was survived by her parents and brothers and sisters. Her mother, Violet Nass, testified that she drove the Mustang involved in the accident a few days prior thereto, and that it had no steering problems, had four new tires, and was kept in good mechanical condition.

Judith Lynn Ator was also 19 years of age at the time of her death. She had never been married, and was survived by her mother, her brothers and a sister. She was employed by Farm Services in Bloomington, earning between $80.00 and $85.00 each week.

Geraldine Sullivan, the mother of Judith Ator, testified that she had accepted the sum of $567.50 from Carolyn Jones’ insurance carrier, and executed a release at the request of the company. The document, entitled “General Release,” purports to release Nass Trust Lines, Inc. and its agents, servants, and all other persons, firms, associations, and corporations of any and all actions, claims and demands arising out of the accident of April 8,1972.

Mrs. Sullivan said that when she signed the document entitled “General Release” she thought she was signing a receipt for the money the insurance company gave her. She said that the insurance company contacted her and that it was never explained to her that by signing the document she could be considered to have released claims against the State of Illinois. She had no legal advice before signing the document.

Claimants contend that the State was negligent in placing the borrow pit in close proximity to the highway, and in failing to erect a guardrail at the curve. Claimants also contend that the State is liable for the failure of Trooper Martin to rescue the deceased girls.

Respondent argues that it was not negligent, and that the deaths of the girls was caused by the negligent operation of the car by Carolyn Jones. The State also argues that the “General Release” executed by Geraldine Sullivan bars this claim on behalf of Judith Ator.

The State of Illinois is not an insurer of the safety of persons who travel upon its highways. However, the State owes a duty to those persons to use reasonable care in the maintenance and erection of its roadways. One authority has described the duty of a public authority in such instances, as follows:

“It is well settled that it is the duty of the public authority to erect railings or barriers along the highway at places where they are necessary to make the way safe and convenient for travelers in the use of ordinary care, and that such public authority is liable for injuries to travelers resulting from a breach of its duty in this regard. This is true even though the danger arises from structures or excavations outside the highway and on the land of adjoining owners, when such structures or excavations are in the general direction or course of travel upon the highway. Whether a railing or barrier is necessary in a given case particular locality in reference to which the ques tion arises. Among the material facts to be considered are the character and amount of travel, the character of the road itself, its width and general construction, the character and extent of the slope or descent of the bank, the direction of the road at the place, the length of the portion claimed to require a railing, whether the danger is concealed or occur therefrom. A number of Courts have laid down the rule that the danger must be of an unusual character and one that exposes travelers to unusual hazards, such as bridges, declivities, excavations, steep banks, or deep water.” 39 Am.Jur.2d 796.

It appears from a preponderance of the evidence, that the State was not negligent in failing to erect a guardrail at the site where the deceased’s car left the highway. The borow pit was located approximately 55 feet from the edge of the pavement, measured at its closest lateral distance from the high water mark of the pit. The car in question left the highway considerably north of the pit, and traveled over open terrain for approximately 215 feet before reaching the water. Further, the State presented testimony establishing that when the highway was built the applicable design specifications did not mandate installation of guardrails.

There is no evidence that the State violated its own design criteria in failing to erect a guardrail, or in approving the location of the borrow pit in proximity to the highway.

Claimants also contend that the State is vicariously liable for the inaction of Trooper Martin at the accident scene. Claimants argue that Martin was negligent in failing to make more strenuous rescue attempts, and in preventing others at the scene from making rescue attempts.

However, we are unable to find that Trooper Martin violated any duty to the deceased victims of the accident. It is ancient law that there is no legal duty to rescue one in peril. See, Prosser on Torts, 4th ed., p. 340; County of Peoria v. Industrial Commission, 3 Ill.2d 562, 202 N.E.2d 50. Nor do we find such a duty in Ill. Rev. Stat. Ch. 121, §307.16 which sets forth the duties of State policeman:

“§307.16 Powers and duties — Enforcement of Motor Vehicles Laws
State policemen shall enforce the provisions of The Illinois Vehicle Code, approved September 29, 1969, as now or hereafter amended, and Article 9 of the “Illinois Highway Code” as now or hereafter amended; and “An Act to define, regulate and license the business of itinerant merchant by motor vehicle; and to provide for the administration and enforcement thereof,” filed July 22,1941, as now or hereafter amended; and shall patrol the public highways and rural districts to make arrests for violations of the provisions of such Acts. They are conservators of the peace and as such have all powers possessed by policemen in cities, and sheriffs, except that they may exercise such powers anywhere in this State. The State policemen shall cooperate with the police of cities, villages and incorporated towns, and with the police officers of any country, in enforcing the laws of the State and in making arrests and recovering property. They may be equipped with standardized and tested devises for weighing motor vehicles and may stop and weigh, acting reasonably, or cause to be weighed, any motor vehicle which appears to weigh in excess of the weight permitted by law. It shall also be the duty of the State police to determine, whenever possible, the person or persons or the causes responsible for the breaking or destruction of any improved hard-surfaced roadway; to arrest all persons criminally responsible for such breaking or destruction and bring them before the proper officer for trial.***”

Whatever the Court may think of Trooper Martin’s actions at the accident scene, he was exercising his discretion as to the best manner in which to handle the situation. Martin testified that he thought the girls were already dead when he arrived at the scene, and that he had to abandon rescue attempts because of temperature of the water. We have found no authority to support the view that a law officer owes a duty to endanger his own life and safety to rescue a member of the public. We, therefore, cannot hold the State liable on a theory that Martin should have endangered his own safety, or that of others at the scene.

We also note that prior to Martin’s arrival, an unsuccessful rescue attempt was made by Kinney and DeRosa. After he arrived another rescue attempt was made with a wrecker and a boat, which was also aborted because of the low water temperature.

This was a tragic loss of life, and the Court has accordingly scrutinized the record with particular care. The Court has also fully considered the vigorous and imaginative arguments raised by Claimants’ able counsel. We must reluctantly conclude however, that the State cannot be held liable for the deaths of Caroline Jones and Judith Ator.

These claims are accordingly denied.


author: Poch, J.

text:
    (No. 73-CC-0056
    William V. Pye, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 29, 1979.

    Lee K. Zelle, Attorney for Claimant.
    William J. Scott, Attorney General; Howard Feldman, Assistant Attorney General, for Respondent.
   Poch, J.

The Claimant seeks reimbursement for $282.08 allegedly expended by his wife pursuant to a contract of employment entered into between the Claimant and the Environmental Protection Agency on February 1, 1972. The Claimant brings this action pursuant to the provisions of Sec. 8(b) of the “Court of Claims Act” (Ill. Rev. Stat., Ch. 37, Sec. 439.8(b)), 1973 alleging that he is entitled to reimbursement pursuant to the provisions of his employment contract.

Both documentary and testimonial evidence was presented before a Commissioner of the Court. The claimant testified that he entered into a written contract of employment with the State of Illinois on February 1, 1972. The Claimant was hired as an environmental managing engineer. His contract of employment provided that:

“Additions and/or conditions to this offer: After offer acceptance, three-day trip for wife to look for housing (offer expires September 30,1972); >>

The contract also provided that “all offers are subject to the laws of the State of Illinois and may be modified or cancelled if in violation thereof and without notice, if necessary.”

The Claimant commenced his employment in Illinois while his wife and children remained in New Jersey until June, 1972. The Claimant submitted a voucher for expenses incurred by his wife for “house hunting” from April 14 to April 22, 1972, which included 1,980 miles roundtrip by auto, two nights motel cost and five days meal expense. The voucher for $282.08 was initially approved by the Environmental Protection Agency and the funds were paid to the Claimant. The payment was appealed to the Travel Control Board which denied the claim. The Claimant repaid to the Agency the $282.08 and filed his complaint with this Court seeking payment.

The Claimant acknowledged that he knew the employment contract was subject to the provision therein that:

“All offers are subject to the laws ... of Illinois and may be modified or cancelled if in violation ... .”

The Claimant testified that the request for payment of the expenses for his wife exceeded the three day limit set forth in his contract. He also stated that while in Springfield his wife ate her meals at his apartment. The Claimant calculated her meal cost at the state travel restriction of $2.00 for breakfast, $3.00 for lunch and $5.00 for dinner for a total of $50.00 for meals. The only actual expense receipts submitted by the Claimant in support of his claim were for the two nights lodging for his wife during her auto trip from New Jersey to Illinois. Her trip resulted in the purchase of a home in Illinois.

The Respondent submitted a departmental report from the Environmental Protection Agency which is prima facie evidence of the facts contained therein pursuant to Rule 14 of the Court. The report confirms the disapproval of the claim by the Travel Control Board. The Department of Finance also disapproved payment of the funds.

Neither the Claimant nor the Respondent offered any evidence concerning the actual travel regulations in effect in 1972. The Claimant argues that he fully performed all terms under the contract and is therefore entitled to payment, regardless of applicable regulations governing travel.

The claim must be denied. The contract provided that it was subject to the laws of Illinois and could be modified or cancelled if in violation without any notice. The burden is on the Claimant to establish proof of his claim by competent evidence of such quality to prove entitlement to an award by a preponderance of the evidence. The Claimant has submitted no authority for the proposition that the contract, apparently found unenforceable by both the Department of Finance and the Travel Control Board, is enforceable against the State of Illinois. The Claimant has not met his burden of proof.

The claim must also be denied because the Claimant seeks payment for meals for five days where no actual expenses were incurred but rather were computed based on the maximum limits on meal expenses by State employees. No actual meal expenses were incurred thus no payment can be made.

The Claimant has not presented any evidence to overturn the decision of the Travel Control Board and the Department of Finance.

The claim of William V. Pye is denied.