author: Sommer, C.J. Per Curiam

text:
    (No. 88-CC-0569
    John Gipson, Jr., Claimant, v. The State of Illinois, Respondent

      Order on petition for rehearing filed December 22, 1998.

      Revised opinion filed March 4, 1999.

    Phillip R. Rice, for Claimant.
    Jim Ryan, Attorney General (Terence J. Corrigan, Assistant Attorney General, of counsel, for Respondent.
   ORDER

Sommer, C.J.

This claim returns before the Court on Claimant’s petition for rehearing. In his petition, Claimant challenges the Court’s ruling concerning Claimant’s failure to exhaust other remedies, initially noting that Respondent had never raised the exhaustion issue and asserting that it therefore had been waived. Claimant cites Wilson v. State (1994), 46 Ill. Ct. Cl. 20, 24. Without referring to any authority for the proposition, Wilson expressly held:

“[T]he failure to raise the defense of the Claimant’s failure to exhaust other remedies is non-jurisdictional [sic]. If it is not raised prior to trial, it is waived.
# S #
The failure to exhaust remedies is not jurisdictional.” (Id.)

Thus, Wilson purportedly stands for the proposition that a Claimant’s failure to exhaust remedies is nothing more than an affirmative defense. For reasons that will be explained below, we disagree and overrule Wilson.

Subsequent to Wilson (but without ever directly referring to it), the Court has carefully scrutinized the exhaustion requirement and has concluded that exhaustion of administrative remedies is a mandatory element of the Court's subject matter jurisdiction. Devaney v. State (1996), 48 Ill. Ct. Cl. 461; Morge v. State (1994), 47 Ill. Ct. Cl. 318.

While it is undoubtedly true that, in most instances, it is the Respondent which brings the exhaustion issue to the Court’s attention, silence on the Respondent’s part cannot vest this Court with jurisdiction which is otherwise not granted to it. As a matter of law, subject matter jurisdiction is incapable of being waived. (I.L.P. Courts section 24.) Accordingly, jurisdictional issues may be raised at any time, even by the Court itself. (Neylon v. State (1986), 39 Ill. Ct. Cl. 63, 72.) Thus, Respondents failure to raise the exhaustion issue here is of no consequence, for, as a matter of law, exhaustion of administrative remedies is an element of the Courts subject matter jurisdiction which cannot be waived.

Claimant next argues that an exception to the exhaustion requirement should be created for him because, he contends: (1) he was completely unaware of the existence of the particular administrative remedy until apprised of it in the Courts decision dismissing his claim; and (2) his vehicle has most likely deteriorated and/or run up large storage charges over the years so as to render the remedy meaningless. A review of the record reveals that Claimant has had the benefit of legal advice and representation since the alleged seizure of his vehicle:

"If the Court were to waive the exhaustion of remedies requirement merely because Claimant waited until it was too late to avail himself of the other remedies, the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants.” Lyons v. State (1981), 34 Ill. Ct. Cl. 268, 272.

The Court also notes that, aside from the cited administrative remedy, Claimant certainly could have elected to timely pursue a replevin action in circuit court for the prompt return of his vehicle. Claimants request for an exception is therefore rejected.

Accordingly, the Court having reviewed the petition for rehearing and the complete record herein and having given due consideration to Claimants contentions, and being otherwise fully advised in the premises, it is hereby ordered that Claimants petition for rehearing is denied.

REVISED OPINION

Per Curiam

This claim arises from the Secretary of States retention of Claimants 1980 Chevrolet Corvette and the Secretary’s revocation of the Corvette’s title and vehicle registration, following its seizure by the Alton police department pursuant to section 4 — 107(i) of the Illinois Vehicle Code (625 ILCS 5/4 — 107(i)) due to its removed and falsified vehicle identification number (“VIN”).

On January 13, 1998, the Court denied this claim due to Claimant’s failure to exhaust his administrative review remedy, which we raised sua sponte and which we held was jurisdictional.

Claimant petitioned for rehearing, urging that exhaustion of remedies, required by section 25 of the Court of Claims Act (705 ILCS 505/25), is not a jurisdictional requirement and that the requirement was waived because the Respondent never raised the issue in this case. Claimant relied on Wilson v. State (1994), 46 Ill. Ct. Cl. 20, 24 (“failure to exhaust other remedies is non-jurisdictional”) (Patchett, J.), which found a waiver of exhaustion due to the Respondent’s failure to raise the issue before trial.

On December 22, 1998, the Court denied rehearing and reaffirmed our holding that the Claimant’s failure to exhaust his administrative review remedy was jurisdictional.

The Court adheres to this conclusion and to the denial of this claim, but in light of persisting confusion over jurisdictional and non-jurisdictional “exhaustion” requirements, issues this modified opinion to supersede the order of January 13,1998, and December 22,1998.

Facts

The essential facts of this case are undisputed. In April or May of 1986, Claimant purchased a 1980 Chevrolet Corvette from one Thomas Payne of St. Louis, Missouri. The vehicle then had a California certificate of title which was transferred by Payne to the Claimant. Claimant then applied for and received an Illinois certificate of title.

On or about June 11, 1986, Claimant’s vehicle was seized by the Alton police and delivered into Respondent’s custody. The seizure was effected pursuant to section 4— 107(i) of the Vehicle Code, which designates vehicles with altered or removed VINs as contraband:

“If a vehicle 8 8 8 is found to have the manufacturer’s identification number removed, altered, defaced or destroyed, the vehicle 8 8 8 shall be seized by any law enforcement agency having jurisdiction and held for 8 8 8 identification. In the event that the manufacturer’s identification number 8 8 8 cannot be identified, the vehicle 8 8 8 shall be considered contraband, and no right of property shall exist in any person owning, leasing or possessing such property, unless the person owning, leasing or possessing the vehicle 8 8 8 acquired such without knowledge that the manufacturer’s vehicle identification number had been removed, altered, defaced, falsified or destroyed.
It shall be the duty of the State’s Attorney 8 8 8 to make application to the Circuit Court on final determination of any prosecution arising out of the seizure, for an order to sell the property so seized; and the court, if satisfied that the property did not at the time of its seizure, possess a manufacturers identification number, and that this number cannot be ascertained, shall make an order that the property be disposed of 8 8 8 and shall fix the time, place, manner and nature of such disposal. 8 8 8.”

The evidence indicates that the VIN had been obliterated from the Corvette’s engine, transmission, and frame, and that the VIN appearing on the front dashboard (1) was a VIN for a different year vehicle and (2) did not match a confidential VIN located inside the door panel.

Claimant was criminally charged with possessing the Corvette with knowledge that its VIN had been removed or falsified. For reasons that do not appear on record, the criminal charges against the Claimant were abandoned in October, 1986, and no application was made under section 4 — 107(i) of the Vehicle Code for an order to sell the Corvette. On March 20, 1987, the Secretary of State revoked the Corvettes title and registration, and has refused to return the Corvette to Claimant.

Exhaustion of Remedies

Before reaching the merits of Claimants liability arguments, the Court must examine whether the Claimant has exhausted his remedies as to this claim. Exhaustion of remedies is a specific — and mandatory — requirement of all Claimants in this Court under the terms of section 25 of the Court of Claims Act. 705 ILCS 505/25:

“§25. Exhaustion of other remedies for recovery — Exception. Any person who files a claim before the court shall, before seeking final determination of his or her claim exhaust all other remedies and sources of recovery whether administrative or judicial; except that failure to file or pursue actions against State employees, acting within the scope of their employment, shall not be a defense.” See, also, Court of Claims Regulations 6 and 9, 74 Ill. Admin. Code §§790.60, 790.90.

Section 25 actually encompasses two procedural requirements in its mandate that Claimants “exhaust all other [1] remedies and [2] sources of recovery” before a final ruling by this Court. This Claimant failed to satisfy both branches of our exhaustion requirement.

Exhaustion of Other Antecedent Remedies

The first branch of section 25 incorporates the common law requirement that a litigant must exhaust all “other remedies” that may be invoked before seeking relief in this Court, i.e., remedies available in another judicial or administrative forum that can provide the Claimant with the same relief (damages) as sought in this Court or with alternative relief that avoids the claim.

This Claimant has failed to exhaust this kind of antecedent “other remedy” by failing to invoke the statutory remedies against the Secretary of States revocation: (1) the administrative hearing in the Secretary’s office, and (2) administrative review in the circuit court.

The record reflects that the Secretary’s refusal to return the Corvette to the Claimant relied upon his revocation of the Corvette’s title and registration, which in turn appear to rely on the contraband and ownership provisions of section 4 — 107(i) of the Vehicle Code. The Vehicle Code gives Claimant a right to a hearing from these revocations in section 2 — 118(a) (625 ILCS 5/2 — 118(a)):

"(a) Upon the suspension, revocation or denial of the issuance of a license, permit, registration or certificate of title under this Code of any person the Secretary of State shall immediately notify such person in writing and upon his written request shall, within 20 days after receipt thereof, set a date for a hearing and afford him an opportunity for a hearing as early as practical » # 6 ”

The Secretary’s order of revocation on its face reflects that a copy of the order was never served on the Claimant. On the record before us, we must find that Claimant’s right to a hearing to contest the revocation has not been exercised. Because of the apparent lack of statutory notice, it appears that this right can still be exercised under the statute, in which event Claimant must exhaust this avenue of relief before seeking an adjudication in this Court.

This is a classic failure to exhaust an administrative remedy; the hearing could have reversed the Secretary’s determinations and his basis for withholding the vehicle. This Court has a long history of summarily enforcing this type of exhaustion. See, e.g., Watkins v. State (1992), 45 Ill. Ct. Cl. 203; McKendree v. State (1973), 28 Ill. Ct. Cl. 229.

More fundamentally, however, the Secretary’s revocation is ultimately subject to administrative review in the circuit court, i.e., judicial review under the Administrative Review Law (735 ILCS 5/3 — 101 et seq.) (the “ARL”). The ARL is made applicable by section 2 — 118(e) of the Illinois Vehicle Code. 625 ILCS 5/2 — 118(e):

“(e) The action of the Secretary of State in suspending, revoking or denying any license, permit, registration or certificate of title shall be subject to judicial review in the Circuit Court ° * and the provisions of the Administrative Review Law '"are*** adopted and shall apply to and govern every action for the judicial review of final acts or decisions of the Secretary of State hereunder.”

This administrative review remedy is jurisdictional. Claimant’s failure to exhaust it is therefore also jurisdictional. Circuit court review under the ARL is statutorily the sole method of adjudicating the alleged impropriety of the Secretary’s actions and divests this Court of jurisdiction to do so. This divestiture of our jurisdiction is codified in section 8(a) of our Act. 705 ILCS 505/8(a):

“§ 505/8. Jurisdiction. The court [of claims] shall have exclusive jurisdiction to hear and determine the following matters:
(a) ° ° ° provided, however, the court shall not have jurisdiction 5 * * to review administrative decisions for which statute provides that review shall be in [the] circuit court.”

Accordingly, when the ARL is applicable to a decision, this Court cannot adjudicate that decision. When a claim before us, like this one, is based on such a decision which is alleged to be illegal or wrongful, this Court cannot determine the merits of such allegations, but must defer to the determination of the circuit court and reviewing courts. But if that statutory method of review has not been invoked to provide a judicial determination, as it has not been in this case, this Court is left without authority to grant relief on the basis of the disputed decision.

Thus, this Claimants failure to exhaust this remedy is more than a failure to exhaust a merely “alternative” remedy. Administrative review is not an alternative to adjudication by this Court. For a claim in this Court that is based on a disputed State decision that is reviewablé under the ARL, administrative review in the circuit court is a jurisdictionally necessary remedy.

Exhaustion of Alternative Sources of Recovery

The second branch of the section 25 exhaustion of remedies requirement is the Claimants duty to “exhaust all other # * sources of recovery” before an award by this Court (705 ILCS 505/25). This exhaustion requirement is a creature of statute.

This requirement mandates that Claimants pursue other “sources” {i.e., potentially liable parties) of recovery {i.e., money) for the same damages as are being sought from the State in this Court. Claimants must pursue other potentially culpable parties (e.g., other tortfeasors) who may be hable for some or all of the same damages that are being sought from the State. (This requirement most frequently arises in tort cases, but it is not limited to tort claims.)

This branch of the statutory exhaustion requirement serves a different purpose than the purely procedural policies served by the classic exhaustion of “alternative remedies” doctrine. This duty to pursue “alternative sources” is aimed at dollars, not procedures. As this Court has pointed out many times, the requirement to exhaust “alternative sources of recovery” is intended to make the State the payor of last resort and the payor of the smallest feasible share of any shared liabilities, and is driven by fiscal prudence policies.

In this case, the Claimant obviously had judicial remedies against the person who sold the many-VIN Corvette to him (unless, of course, he was guilty of participating or knowing about the falsification of VINs, in which case that would bar his recoveiy in this Court). The record is devoid of evidence of efforts by this Claimant to pursue any relief against the seller. This record requires us to conclude that the Claimant has failed to exhaust this potential source of recoveiy, and thus failed to satisfy the alternative source branch of the section 25 exhaustion rule.

Comments on Denial of Rehearing

In his petition for rehearing, Claimant relies on Wilson v. State, supra, in seeking to convince us that we can waive, and that we should waive, the exhaustion requirements. Claimant relies on Wilsons holding that the section 25 exhaustion requirement (which, as observed above, is really two requirements) is “non-jurisdictional” and thus is subject to waiver in appropriate circumstances. However, Wilson and section 25 do not control here.

Wilson correctly held that the statutory exhaustion requirement(s) of section 25 of the Court of Claims Act— which by its terms is a mandate on Claimants rather than a limitation on the Courts authority — is not a jurisdictional requirement, and thus is susceptible of waiver in appropriate and extraordinary circumstances.

However, under section 8(a) of the Court of Claims Act, the failure to exhaust an “administrative review” or other statutory judicial review remedy as to a material issue in a case before this Court in sl jurisdictional failure, as pointed out above. Wilson did not involve an administrative review issue and the Wilson opinion did not address this kind of exhaustion nor the section 8(a) jurisdictional issue, which are controlling here.

Because this Claimants failure to exhaust his administrative review remedy is jurisdictional and not waiveable we need not address Claimants proffered excuses for his failure to pursue that remedy. We also need not consider a theoretically-possible waiver of Claimants failure to pursue the seller of the vehicle (i.e., alternative source exhaustion) because that issue is now moot. We only note, in passing, that even in his petition for rehearing, the Claimant failed to offer any justification for his failure to pursue the seller.

Conclusion

For the foregoing reasons, and upon a full and considered review of the record and the parties’ arguments, this claim and rehearing must be denied. Accordingly, it is hereby ordered:

1. This claim is denied;

2. Claimant’s petition for rehearing is denied;

3. This Court’s prior orders of January 13, 1998, and December 22, 1998, are withdrawn, and this modified opinion is entered in lieu thereof.

       Section 4 — 107(i) was enacted in 1975, was declared unconstitutional in 1982, and was reenacted with modifications in 1985. People v. One 1979 Pontiac Grand Prix (1982), 89 Ill. 2d 506, 433 N.E.2d 1301 (§4 — 107(i) unconstitutional); see, 1982 Op. Atty. Gen. 64 (No. 82-023) (§4 — 107(i) void as of its enactment). The General Assembly re-enacted §4 — 107(i) with the following added language to address the constitutional deficiences identified by the Supreme Court in One 1979 Pontiac Grand Prix, supra; “8 8 8 unless the person owing, leasing or possessing the vehicle or part acquired such without knowledge that the manufacturer’s vehicle identification number has been removed, altered, defaced, falsified or destroyed.” Public Act 83 — 1473, eff. January 1,1985 (Laws of the State of Illinois, 83rd General Assembly, Vol. II, p. 3653).

       This Court has been reluctant to find waivers of such mandatory requirements. We did so in Wilson — as to “alternative source” exhaustion — due to the Respondent’s inexcusable delay in not raising the issue until after trial. We have also applied a rule of reason to the alternative source exhaustion requirement, see Blumstein v. State (1995), 47 Ill. Ct. Cl. 186, 191 (frivolous actions not required to be pursued); Tank v. State (1987), 40 Ill. Ct. Cl. 1 (factually unprovable actions not required). This Court has been far stricter, and seemingly unwavering, in requiring exhaustion of antecedent administrative remedies. Failure to pursue available redress elsewhere is almost never excusable, and litigants’ failure to do so wastes the limited resources of this Court and thus prejudices consideration of other litigants’ claims.

       Claimant argued: (1) his ignorance of the law; and (2) ineffectiveness of the remedy (i.e., his regaining possession) due to likely depreciation of the vehicle once Claimant learned about administrative review from this Court’s opinion.


source: Caselaw Access Project

author: Sommer, C.J.

license: Public Domain

text:
    (No. 88-CC-1906
    Dorothy LaVelle, Administrator of the Estate of Terrence P. LaVelle, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 18, 1998.

    Ryan & Bijak (Richard J. Ryan, of counsel), for Claimant.
    Jim Ryan, Attorney General (Michael A. Wulf, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This is a claim for damages arising from the death of Terrence LaVelle allegedly caused by the negligence of the State.

The decedent, Terrence LaVelle, age 19, died when his automobile left the outer south-bound lane of Cottage Grove Avenue about two-tenths of a mile north of Sauk Trail Road in Cook County, spun around through the inner southbound lane, a four foot rumble strip median, and the two north-bound lanes, a walkway, and struck the bridge abutment on the north end of a bridge in the opposite lanes. The conditions were dry and clear, and it was 3:15 a.m. Friends of the decedent in a following automobile stated that a dog ran out in front of the decedents automobile, causing the decedent to swerve. The decedents automobile was traveling 45-50 m.p.h., when it skidded out of control.

The issue in this claim is whether the State had a duty to bring the guardrail up to the bridge and merge it with the bridgerail along the bridge even though it was opposite to the flow of traffic on a four lane divided highway. It is alleged by the Claimant that with a continuous guardrail-bridgerail, the decedent may have been injured but would not have been killed. Additionally, the Claimant does not dispute that the decedent had alcohol in his system, but did object to the introduction of testimony by Dr. Chen, the chief toxicologist for the Cook County Medical Examiner, as to the extent of blood alcohol of the decedents blood. The trial of this claim centered on the testimony of highway safety experts for both the Claimant and Respondent.

Cook County originally installed the guardrail and the bridgerail in question prior to 1961, and maintenance responsibility was acquired by the State in 1968. The State did no construction upon the site from 1968 to the date of the incident in question in this claim.

The Respondents expert testified that there was no generally recognized engineering policy or engineering guidelines that mandated or ever recommended that the guardrail be attached to the bridgerail at the departure end of the bridge in the opposite lanes in 1968 or even in 1996 at the time of trial.

The Claimants expert testified that, as early as 1964, the Illinois Division of Highways, District 10, published a Guardrail Report which showed guardrails being attached to bridgerails on the departure ends of bridges, and which made recommendations for guardrail design and application.

The Claimants expert testified that the Illinois Book of Highway Standards, Standard 2230-14 and Standard 2336-3, require the guardrail to be attached to the bridgerail. Standard 2230-14 and 2336-3 were in effect at the time of the mishap in this claim.

The Claimants expert also testified that the “Illinois Department of Transportation Bureau of Traffic Policies and Procedures” required fixing dangerous highway locations and updating guardrails in high accident locations. There was no proof offered that the site of the mishap in this claim was a high accident location.

The Claimants expert gave his opinion that the State therefore violated its own standard of care when it failed to connect the guardrail to the bridgerail, and this failure was the cause of the decedents death.

Both experts testified to a clear zone required by AASHTO standards, but disagreed as to how to calculate the clear zone. The clear zone is the area from the edge of the travelled way to be kept clear of fixed objects.

This Court has consistently held tha.t changes in highway construction standards to provide greater safety to the motoring public do not necessarily require that the State constantly upgrade highways to meet those standards. Pro v. State (1994), 47 Ill. Ct. Cl. 137; Hodge v. State (1981), 35 Ill. Ct. Cl. 51.

It is clear that the State did not upgrade the guardrail and bridgerail in question since it acquired jurisdiction in 1968.

Even though the law generally does not require an upgrade for every change in safety standards, the Claimant argues that the condition was so hazardous as to require an upgrade in any event. Whether an upgrade would have been required may hinge on whether the bridge abutment was within the clear zone of the southbound traffic. On this issue the experts differ. We find that the Claimant has not by a preponderance of the evidence proven that the bridge abutment was within the clear zone or was so hazardous as to require its upgrade.

We have the Claimants experts assertion that the decedent would not have died had the guardrail been attached to the bridgerail. There is little evidence to support this opinion. The Illinois Supreme Court in Di Beneditto v. Flora Township (1992), 153 Ill. 2d 66, found that, when a motorist crossed the center line of a highway and overturned in a drainage ditch on the opposite side of the road, the proximate cause of the accident was the motorists loss of control of the vehicle. The Claimant is arguing that the proximate cause of the death of the decedent was the lack of a continuous guardrail-bridgerail. Thus, the State was not the proximate cause of the accident, and it was not proven that the State was the proximate cause of the death.

Therefore, we find that the State owed no duty to the decedent, and was not the proximate cause of the decedents death. Thus, we need not make rulings as to whether the evidence of the Claimants decedents possible impairment by alcohol be allowed into evidence.

It is therefore ordered that this Claim is denied and dismissed.


author: Raucci, C.J.

text:
    (No. 89-CC-0614
    Kelly Richardson et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 23, 1999.

    Monroe D. McWard, for Claimants.
    Jim Ryan, Attorney General (Michael A. Wulf, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This cause coming on to be heard on the Commissioners recommendation, the Court being fully advised in the premises, the Court finds:

The minor Claimants were with their parents on June 3, 1987, visiting the Sangchris State Park located in Christian County, Illinois, which was operated by the Respondents Department of Conservation (now part of the Department of Natural Resources). The Claimants on that date were nine, seven and five years of age. Their grandparents were campground hosts at the park and invited another campground host, known as Robert F. Moran, to join all of them for dinner. With their parents’ permission, Moran later gave motorcycle rides to the Claimants. Moran sexually molested them, and was subsequently convicted of these offenses.

This claim alleges that the Respondent was negligent in hiring and supervising Moran. The evidence established that Moran, using a false name, in 1987 presented himself at the park, camped and made contact with the park superintendent. Moran sought to be a campground host who would greet campers and collect money from them. Camping fees are waived for campground hosts.

He was first placed to work as a campground technician whose duties included cleaning rest rooms and camp stoves, picking up litter and tasks of that nature. Neither technicians nor hosts are considered State of Illinois employees.

After working as a campground technician for a month and one-half, Moran became a campground host. As part of his application procedures, Moran replied negatively when asked whether he had any prior felony convictions. The park superintendent had previously seen his driver’s license and registration information which indicated that his name was Robert F. Moran.

After the offenses were committed, it was discovered that Moran’s real name was Robert F. Reidelberger and that under that name he had been convicted in 1963 in Macon County, Illinois, of indecent liberties with a child. He had been sentenced to a term of one to 20 years for the offense, and had been released prior to 1987.

Stephen Carey, the park superintendent, testified that in 1987 he had no ability to do background checks on volunteers. Further, the record establishes that in 1987 computerized fingerprint technology was not available to the Respondent and fingerprint checks had to be done by hand, a time consuming process that was not available for background checks.

It was established that the name Robert F. Moran was checked through the State criminal identification system known as LEADS, and that there were no findings of any criminal convictions under that name.

In Wells v. State (1986), 38 Ill. Ct. Cl. 142, a wrongful death case, we considered the standards for determining whether or not the State has the duty to control criminal conduct in order to prevent harm to third persons. As a general rule, a duty exists to control criminal conduct only where a special relationship exists. Examples of special relationships are (1) carrier to passenger; (2) innkeeper to guest; (3) landowner to business invitee; and (4) a person having custody of a victim under the circumstances which deprive the victim of the normal opportunities for protection. Moreover, the question also exists as to whether the criminal conduct is reasonably foreseeable. Wells, 38 Ill. Ct. Cl. at 146.

We find that this claim must be denied because (1) Moran (Reidelberger) was placed in proximity to the minor Claimants not by Respondent, but by their family who invited him to dinner; (2) while it might be argued that the public camp owner to invitee relationship is equal to the innkeeper to business invitee relationship, under conditions in existence in 1987 the criminal identification (and drivers record examination) checks were appropriate; and (3) a 25-year-old conviction, even if known, is too remote to impose liability.

We note that Claimants’ evidence does not establish that the damages claimed arose from the incidents in question. Claimants admitted that prior to the incidents in question they had been sexually molested by a grandfather who continued to reside next to them and that other traumatic events had occurred within their lives. Any of these incidents could have caused the psychological problems that are alleged to have arisen solely from the facts of this case. No expert testimony was offered.

The claim is denied.

It is therefore ordered, adjudged and decreed that this claim is dismissed and forever barred.


author: Frederick, J. Frederick, J.

text:
    (No. 89-CC-1163
    Jace Rapp, Deceased, by his father and next friend, Alfred Williams, Sr., Alfred Williams, Sr., Individually, Alfred Williams, Jr., by his father and next friend, Alfred Williams, Sr., and Cynthia Williams, Individually, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 15, 1998.

      Order filed February 11, 1999.

    David K. Kremin & Assoc. (David K. Kremin, of counsel), for Claimants.
    Jim Ryan, Attorney General (Tomas A. Ramirez, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This cause comes before the Court on Respondents motion to dismiss, Claimants’ motion for extension of time and Respondent’s motion to stay discovery. The issues have been thoroughly briefed by the parties and the Court has heard oral arguments.

Facts

The events before the Court started when a call was placed to the Department of Children & Family Services hotline indicating that Jace Rapp, a four-month-old child, was abandoned and neglected. One of the Department’s child welfare investigators, Mr. VanHoose, took temporary protective custody of Jace Rapp. The report made to the hotline was determined to be an indicated report by Mr. VanHoose. An indicated report means that a report was made under section 5/3 of the Abused and Neglected Child Reporting Act (325 ILCS 5/3), and the subsequent investigation determined that credible evidence of alleged abuse or neglect existed as to that child.

On October 5, 1987, Claimants’ decedent, Jace Rapp, was taken to Michael Reese Hospital by a teenager. Jace Rapp’s mother had turned over the child to the teenager. The decedent was diagnosed as requiring emergency surgery. This surgery was not performed because the teenager who had been caring for Jace Rapp did not have authority to consent to the surgery and was informed that the hospital would require a parental consent. In response, DCFS investigator, VanHoose, went to the family that was caring for Jace Rapp and removed the child from their possession.

On November 20, 1987, a juvenile court hearing was held. At the court hearing, Jace Rapp was returned to his mother. The Cook County Circuit Court continued the case under supervision and entered conditions of protection for the mother in conformance with paragraph 705— 5 of the Juvenile Court Act.

The Circuit Court did not take custody and did not grant guardianship of the child to DCFS. The Court did set conditions of protection with respect to the mothers responsibilities as follows:

(a) Mother shall cooperate with all reasonable requests of DCFS or its assigns;

(b) Mother shall provide all care necessary for the well-being of the minors;

(c) Mother shall insure that minors are enrolled and attend a medical clinic directed by DCFS;

(d) Mother shall obtain adequate housing;

(e) Mother shall notify DCFS of any change in address;

(f) Mother shall make minors available to GAL prior to the determination of this order;

(g) Mother shall not leave minors without adequate adult supervision;

(h) Mother shall attend parenting skill classes per DCFS request; and

(i) Mother shall obtain all necessary medical treatment as indicated by the medical clinic.

The mother apparently failed to comply with the order and on December 18,1987, Jace Rapp died.

The Claimants have brought this wrongful death action alleging that the Illinois Department of Children & Family Services was negligent in that it failed to provide adequate care, supervision, custody and medical treatment to Claimants’ decedent, Jace Rapp. The Claimants have alleged that at the time of Claimants’ decedent’s death, he was in the care, supervision and custody of the Department. The Respondent argues that the complaint should be dismissed as the Department breached no duty to Claimants’ decedent. The Respondent’s position is that DCFS cannot be held liable for Claimants’ decedent’s death as DCFS did not have custodial or guardianship responsibilities for the minor at the time of his death.

The Department’s child welfare investigator, Mr. VanHoose, took only temporary protective custody of the decedent after a call was made on September 14,1987, to the DCFS hotline alleging that the child was neglected. The subsequent required report made to the hotline was “indicated” for inadequate supervision, in conformance with the Abused and Neglected Child Report Act (325 ILCS 5, et seq.), and the Department’s administrative rules and procedures.

As a result of a temporary custody hearing on November 20, 1987, the Claimants’ decedent was placed in the home of the child’s maternal grandmother, Johnnie Mae Rapp, who resided in the same building as the child’s mother, Laretha Rapp. The Cook County Circuit Court did not adjudicate the matter and did not grant DCFS custodial or guardianship responsibilities with respect to the minor, but continued the cases of In the Interest of Issac Rapp, No. 87J-15768, and In the Interest of Jason Rapp (Claimants’ decedent), No. 87J-15769 under supervision in accordance with section 704 — 7 of the Juvenile Court Act and entered the aforesaid conditions of protection by the mother in conformance with section 705 — 5 of the Juvenile Court Act.

The Parties’ Positions

The State argues that in order for Claimants to recover, Claimants must prove by a preponderance of the evidence that the State was negligent and that such negligence was the proximate cause of the decedent’s death. To establish negligence, Claimants must prove that the Respondent owed a duty of care, a breach of that duty, and an injury proximately caused by the breach. Steger v. State (1993), 46 Ill. Ct. Cl. 262.

It is Respondent’s position that DCFS breached no duty to Claimants. Respondent argues that DCFS cannot be held liable for Claimants’ decedent’s death as DCFS did not have custodial or guardianship responsibilities for the minor at the time of his death. At the temporary custody hearing, the Circuit Court never adjudicated custody of the decedent. The Court continued the case under supervision pursuant to the Juvenile Court Act. Respondent asserts the Circuit Court’s order did not create a duty by DCFS to the decedent nor does it establish liability.

Claimants argue that even if custody or guardianship was not granted to DCFS, that DCFS had a duty to assist the Circuit Court during all stages of the Court proceeding, to protect the best interests of the child, and had a duty to offer protective services in order to prevent any further harm to the child. Claimants cite statutory authority in section 405/2 — 3 of the Juvenile Court Act of 1987 (705 ILCS 405/2 — 3) which defines a neglected minor as any minor under 18 years of age whose parent does not provide the proper or necessary support or care for a minor’s well-being, including adequate food, clothing and shelter, or who is abandoned by his parent. Further, upon receiving reports of neglect, pursuant to section 5/2 of the Abused and Neglected Child Reporting Act (325 ILCS 5/2), the Illinois Department of Children & Family Services shall protect the best interests of the child and offer protective services in order to prevent any further harm to the child. Pursuant to section 7.4(2) of the Act (325 ILCS 5/7.4(2)), if it appears that the immediate safety or well-being of a child is endangered, the Child Protective Services Unit shall commence an investigation immediately. In all other cases, an investigation shall be commenced within 24 hours of receipt of the report. Upon receipt of a report, the Child Protective Service Unit shall make an initial investigation and an initial determination as to whether the report is a good faith indication of alleged child abuse or neglect. Pursuant to section 5/7.4(3) of the Act (325 ILCS 5/7.4(3)), if the Unit determines the report is a good faith indication of alleged child abuse or neglect, then a formal investigation shall commence. This formal investigation shall include: direct contact with the subject or subjects of the report as soon as possible after the report is received; an evaluation of the environment of the child named in the report; a determination of the risk to the child if the child continues to remain in the existing environment, as well as a determination of the nature, extent and cause of any condition enumerated in such report; the name, age and condition of other children in the environment; and an evaluation as to whether there would be an immediate and urgent necessity to remove the children from the environment if appropriate family preservation services were provided.

Claimants also point out that pursuant to section 5/8.3 of the Act (325 ILCS 5/8.3), “The Department shall assist a circuit court during all stages of the court proceeding * * * by providing full, complete and accurate information to the court * * 7”

Mr. VanHoose was the child welfare investigator assigned to determine if the report of neglect was made in good faith concerning Claimants' decedent. Mr. VanHoose determined that this was an “indicated report” pursuant to section 7.4(3) of the Act (325 ILCS 5/7.4(3)), and a formal investigation commenced. The formal investigation was to include: direct contact with Jace Rapp as soon as possible after the report was made; an evaluation of the environment of Jace Rapp; a determination of the risk to Jace Rapp if left abandoned by his mother; a determination as to the nature, extent and cause of the neglect of Jace Rapp; the name, age and condition of other children in the same environment as Jace Rapp; and an evaluation as to whether there would be an immediate and urgent necessity to remove Jace Rapp from that environment.

Mr. VanHoose, in his deposition, has admitted that he failed to follow the policy and procedure of DCFS, admitted that in this case a protective order should have been entered, and custody should have been given to the father. Mr. VanHoose further stated that the policy and procedure of DCFS was to place the child in protective custody if any one of the following four conditions existed: the child was in a life-threatening situation, or was in immediate danger, or was in poor health condition, or was abandoned by his mother. In his deposition testimony, Mr. VanHoose stated that the mothers conduct in this case met all four factors which would indicate a request for immediate protective custody. He further testified that he failed to advise the State’s Attorney of this information and failed to ask for protective custody, all contrary to the policy and procedure of DCFS. However, Mr. VanHoose stated in his deposition that he testified under oath at the hearing and told the judge and States Attorney everything that was in his report. Mr. VanHoose s report indicated that Mr. VanHoose had learned the mother, Laretha Rapp, had given the baby to Rochetta Tyler to care for until the child became two years old. However, there was nothing in writing in that regard arid he also learned that Laretha Rapp had not provided adequate care when she had the child and had not been living in adequate housing. The investigative report also indicated the Tylers had been unable to contact Laretha Rapp. The child appeared to be normal and had been entered into a milk, cheese and dairy product program. The maternal grandmother, Johnnie Rapp, did not know the whereabouts of Laretha Rapp. Mr. VanHoose also learned that Larethas other son had been left with family members. Laretha Rapps other son had no signs of abuse or neglect, as he lived with Larethas sister. Mr. VanHoose subsequently met with Laretha who told him she did not think she was neglectful of the children. She also claimed to be in contact with her family members which was in conflict with the family members’ statements. The mother did admit she did not leave money for the people talcing care of her children.

The report also indicated that the Tylers took Jace to the hospital where a hernia requiring surgical intervention was diagnosed. This required an involved caretaker.

Mr. VanHoose’s deposition testimony indicates that he testified in juvenile court under oath as to everything that occurred as stated in his report. The State, the mother and grandmother were all represented in the juvenile proceeding. The juvenile court’s order of November 20,1987, indicates a guardian ad litem for the child.

Claimants seek additional depositions of DCFS workers and Respondent objects to these depositions. Respondent seeks a stay of discovery until the motion to dismiss is determined. Claimants, seek an additional five depositions of present and former DCFS employees to determine if negligence exists. This case has been pending for more than nine years.

- Analysis

The Department of Children and Family Services was created by the legislature to protect and promote the welfare of the children of Illinois. (20 ILCS 505/1 et seq.) The legislature vested DCFS with certain investigative powers to help carry out their responsibilities. The agency employs child protective investigators. (20 ILCS 505/21.) The role of DCFS investigators is to inquire into abuse and neglect charges, and investigate charges of abuse where indicated; These investigators, however, are not police officers and do not have powers of arrest. People v. Hagar (1987), 160 Ill. App. 3d 370.

The Illinois Department of Children and Family Services, shall, upon receiving reports made under the Act, protect the best interests of the child, offer protective services in order to prevent any further harm to the child and to other children in "the family, stabilize the home environment, and preserve family life wherever possible. (325 ILCS 5/2.) Additionally, section 9 of the same Act states:

“Any person, institution or agency, under this Act, participating in good faith in the malting of a report or referral, or in the investigation of such a report or referral or in the taking of photographs and x-rays or in the retaining a child in temporary protective custody 9 * * shall have immunity from any liability, civil, criminal or that otherwise might result by reason of such actions. For the purpose of any proceedings, civil or criminal, the good faith of any persons required to report or refer, or permitted to report, cases of suspected child abuse or neglect or permitted to refer individuals under this Act 9 9 9 shall be presumed.”

In the present case, it is undisputed that at the time of decedents death, the Department of Children and Family Services did not have custody or guardianship of the decedent. The child’s mother, pursuant to the Court’s orders, had custodial duties with specific responsibilities as ordered by the Court. Therefore, no duty to Claimants’ decedent can be placed on DCFS predicated on guardianship or custody status.

Claimants argue that Respondent had a duty to investigate child abuse and make its report to the Court. Claimants argue the breach of the duty was when the investigator failed to request guardianship and custody status at the Court hearing. The uncontradicted facts before this Court are that the investigator investigated and made a report. He further testified at the Court hearing to everything that was in his report. There are no allegations of malice on the part of the investigator. (Lehmans v. State (1991), 44 Ill. Ct. Cl. 178.) The Circuit Court judge entered the order continuing the case under supervision and it was the child’s mother’s actions or inactions that led to the death of her child.

The facts further show that the mother had left her other child with family members and there were no signs of abuse. The mother had left Claimants’ decedent with a family and not left Jace Rapp out on the streets. With the legislative purpose of trying to keep families together, with this being the first complaint of neglect against the mother, with the Circuit Court having heard the complete testimony of the investigator, we cannot say, as a matter of law, that it was inappropriate to return Jace Rapp to his mother under the nine conditions of supervision. There is no evidence before the Court that the State’s Attorney or GAL disagreed. If the mother had followed the Court order as she was ordered to do, it is unlikely this case would be before the Court. Because the legislature has made a priority of keeping families together, there is often a fine line between taking guardianship and returning a child to his family under supervision orders. In this case, hindsight proves it was not a good decision. At the time of the hearing, however, the case worker, States Attorney, GAL and judge were responsible for the decision. Claimants want to treat the decision as solely the prerogative of the Respondent, which is simply incorrect.

If the investigator had not testified at the hearing, we might give more weight to Claimants’ argument. However, the fact is that the investigator testified to the facts in his report. Having heard those facts, the State’s Attorney presented and the judge entered the order continuing the case under supervision with nine conditions. There is no basis for this Court to review that decision; indeed, we lack jurisdiction to engage in such reviews. Nor will we engage in a review of the position or advocacy of the State’s Attorney. Our consideration is much more limited.

Conclusion

Having considered at length the totality of the facts and circumstances presented to this Court, we find the investigation and report to have been made in good faith. The Respondent, therefore, carried out its statutory duties and had no further special duties to the Claimants’ decedent. (Peters v. State (1995), 47 Ill. Ct. Cl. 326.) When the child was returned to his mother, the mother bore the legal, as well as the natural, duty to protect and care for the child. (MidAmerica Trust Co. v. Moffatt (1987), 158 Ill. App. 3d 375; Asbury v. State (1998), 50 Ill. Ct. Cl. 184. Beyond the natural and legal duty of the mother to care for her child generally, she was under the explicit nine-point Court order to provide care for the decedent.

The Circuit Court, after hearing the evidence in the investigator’s report, was in the best position to determine if the child should be returned to his mother, and so decided. When the supervision order was entered, the Circuit Court restored the mother to her duty to care and provide for the child. The Respondent had neither guardianship nor custody of the child, nor any duties of care imposed by Court order, and thus bore no such duty to the child. Because the Respondent had no duty toward the child, the Respondent could not be negligent as a matter of law.

Order

In light of our decision herein on the merits of the motion to dismiss, we must deny Claimants’ motion for an extension of time. The Respondent’s motion to stay discovery is rendered moot by our decision.

Based on the foregoing, it is the order of the Court that Respondents motion to dismiss is granted and this cause is dismissed with prejudice.

ORDER

Frederick, J.

This cause comes before the Court on Claimants’ motion for reconsideration and Claimants’ supplement to Claimants’ motion for reconsideration, and the Court having reviewed the pleadings, the Court file, and the order of October 15, 1998, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That the transcript provided by Claimants supports the Court’s order of October 15,1998.

2. That Assistant Guardian ad litem, Ms. Jane Bur-well, was present at the hearing on November 20, 1987, for the minor Respondent.

3. That Assistant Public Defender, Mr. Paul Kratchman, was present for the father.

4. That Assistant States Attorney, Ms. Kathryn Gallenas, was present for the People of the State of Illinois.

5. That Attorney E. Duke McNeil was present for the mother.

6. That McHenry VanHoose testified to give a factual basis for the proposed order.

7. The record indicates the Assistant State’s Attorney discussed the case with the attorney and guardian ad litem,.

8. That the testimony of McHenry VanHoose on November 20,1997, broached the following subjects:

(a) That the child had been left with friends by the mother in August;

(b) The friends had been unable to contact the mother;

(c) That the mother had not provided anything for the child;

(d) The mother did not indicate when she would be picking up the child;

(e) The grandmother did not know where the mother could be reached;

(f) The grandmother was keeping the mother’s other child;

(g) The grandmother did not know when the mother would be back to pick up that child;

(h) That no case plan had been set up for the child;

(i) That the child had been taken to the hospital because he was having trouble;

(j) The child might need an operation but the family could not contact the mother;

(k) They needed the mother’s consent for the surgery.

9. The mother’s attorney advised the Court that the mother would make the child available and perform all of the conditions of the order.

10. That the mother’s attorney advised the Court that the mother had perused the agreement and he had explained it to her.

11. The judge asked the mother if she understood the order and she said yes.

12. That this Court will not second guess the Circuit Court of Cook County.

13. That the investigator did testify at the hearing.

14. That the Court’s order of October 15, 1998, was the correct order.

Therefore, it is ordered that Claimant’s motion for reconsideration and supplement thereto are denied.


author: Frederick, J.

text:
    (No. 89-CC-1708
    Leamon Jordan, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 15, 1998.

    Goldstein, Aiossa & Good (Frederick N. Aiossa, of counsel), for Claimant.
    Jim Ryan, Attorney General (Mark W. Marlott, Assistant Attorney General, of.counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Leamon Jordan, filed his complaint, sounding in negligence, on November 30, 1988. Claimant has alleged that, while Claimant was a prisoner of the Illinois Department of Corrections, the Respondent negligently allowed another inmate to stab him.

The Facts

Claimant, Leamon Jordan, was stabbed in the day-room of the A/B side of the west wing of H-house at the Stateville Correctional Center by a fellow inmate, Gregory Hill. Claimants testimony concerning the attack indicated that he was sitting in the dayroom playing cards, when inmate Hill approached him from the rear, stabbed him, and then walked out through two sets of doors, which were unlocked by a Department of Corrections officer, into the west exercise yard where an ice pick was subsequently found. Claimant testified that inmate Hill was assigned to the east wing of H-house and should not have been in the A/B dayroom. Claimant also claimed that inmate Hill was upset with the Claimant because of a failed drug transaction involving a gold medallion that Claimant had received from inmate Hill to pass on to another inmate. Claimant stated that, prior to the stabbing, he had told Correctional Officer (now Captain) Venita Foulks Wright that he was in danger from Mr. Hill, told her the details of the drug transaction, and that no action of any kind was taken as a result of his revelations.

Captain Wright testified that she recalled that, sometime prior to the stabbing, there was a problem between inmate Hill and the Claimant involving a gold medallion, but that, when she inquired of the Claimant if he had the medallion, the Claimant denied possessing it. Captain Wright did not "recall the Claimant informing her of any danger from Hill, nor did she recall that the Claimant told her of any failed drug transaction involving the medallion.

Denise Cephas, the officer on duty at the time of the stabbing who was in charge of the doors which allowed access into, and out of, the dayroom, testified that Hill was a laundry worker from the C/D side of the west wing and, as such, was admitted into the A/B side to attend to laundry needs. Ms. Cephas testified that, after the stabbing, she believed Hill remained in the dayroom and that she did not release him out to the west exercise yard.

There was evidence from the departmental report that, subsequent to this incident, an ice pick was found in the west exercise yard, but there was no evidence presented as to how the ice pick arrived in that location. The departmental report contained information that inmate Hill was housed in the C/D side of the west wing. Inmate Hill was not listed on the Claimants Department of Corrections enemy list and was not one of the reasons that the Claimant had earlier requested protective custody.

Claimant also offered testimony and evidence concerning the injuries that he had received, and it is clear that Claimant did suffer injuries requiring hospitalization as a result of the stabbing. He also claimed continuing problems breathing.

The Law

The State is not an insurer of the safety of persons under its control, but it does have a duty to protect an inmate when the State can reasonably foresee an assault. Butler v. State (1994), 46 Ill. Ct. Cl. 416; Smith v. State (1991), 44 Ill. Ct. Cl. 45; Phipps v. State (1991), 44 Ill. Ct. Cl. 105.

The facts of this case are similar to the facts stated in Woodfork v. State (1983), 36 Ill. Ct. Cl. 182. In that case, inmate Woodfork had told the work supervisor at State-ville Correctional Center that he needed a change of job assignment for his own safety. However, he did not tell /the supervisor that the persons causing the trouble were Vice Lords. Inmate Woodforks work assignment was subsequently changed and he was moved to different housing. When he reached his new cell, his roommate was a Vice Lord who, several days later, severely beat Wood-fork. The Court denied inmate Woodforks claim because he had not given the State the information that would have allowed the State to protect him.

In the instant case, the Claimant claims that he had informed officers of the Department of Corrections that he was in danger from inmate Hill. The Court finds that the Claimant’s testimony is not credible. The Claimant claims that he wrote a letter, but he could not produce a copy of the letter, and he was vague as to what was said in the letter. The Claimant also failed to produce the original letter, which he could have obtained through discovery if it existed. The Claimant claims that he had informed Captain Wright that inmate Hill had given him a gold medallion that he delivered to another inmate in return for drugs, and that the drugs turned out to be baking powder. Captain Wright testified that she recalled that there was a problem between Hill and the Claimant involving a gold medallion, but that, when she inquired of the Claimant if he had the gold medallion, the Claimant denied possessing the medallion in question. It is not believable that the Claimant told the officer the full stoiy of the drug dealing, as no disciplinary action was taken against Claimant. There was no credible testimony that Claimant told Captain Wright he was in danger of attack from inmate Hill.

Claimant testified he also notified Jean Pearson, the caseworker supervisor of the cellhouse, of the threat from inmate Hill, but did not call Ms. Pearson as a witness. Claimant testified that inmate Hill was moved after he notified Respondents agents of his threat, but Claimant presented no prison cell records to substantiate his testimony.

Also, the Claimant alleges that inmate Hill was housed in the east wing of the H-house, which should have made him completely isolated from the Claimant, and that the Respondent was at fault for allowing inmate Hill to get near him. The testimony of Officer Cephas and the Respondents records show that inmate Hill was a resident of the C/D side in the west wing and had access to the A/R side in the normal course of his laundry duties. The Claimant also stated that, after inmate Hill stabbed him, the guard let inmate Hill out into the west exercise yard, but Officer Cephas testified that she believed Hill remained in the dayroom and that she did not release him out into the yard.

This Court has considered numerous similar claims involving attacks by inmates on other inmates. This Court has continuously reiterated the rule that, in the absence of proof that the Respondent’s agents anticipated, or should have anticipated, that third persons would commit criminal acts against a Claimant, there is no liability. Childs v. State (1985), 38 Ill. Ct. Cl. 196; Castleman v. State (1992), 45 Ill. Ct. Cl. 252.

This Court has further held that, even where institutional procedures were, in fact, violated and the violation permitted one inmate to attack and injure another, there is no liability in the absence of proof that the agents of Respondent anticipated, or should have anticipated, the attack. Carey v. State (1981), 35 Ill. Ct. Cl. 96; Daugherty v. State (1991), 43 Ill. Ct. Cl. 316; Lewis v. State (1995), 47 Ill. Ct. Cl. 199.

The Claimant has presented no credible evidence that he warned Respondent’s agents of an impending attack from inmate Hill, or that Respondent’s agents knew, or should have known, that Claimant was in danger of an attack from inmate Hill. We find that Claimant’s testimony was not credible. Up until the attack, Claimant did not put inmate Hill on his enemy list. Claimant admitted lying to Respondent’s agents to get into protective custody in the first place, by saying he was a gang member. Claimant has failed to prove Respondent’s agents had sufficient notice, or any notice, so that the attack upon Claimant could have been foreseen. Hayes v. State (1994), 47 Ill. Ct. Cl. 389.

For the foregoing reasons, it is the order of the Court that Claimant’s claim be, and hereby is, denied.


author: JANN, J.

text:
    (No. 90-CC-1252
    Vicki Sowizrol, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 17, 1996.

    Healy, Martin J. & Assoc. (David P. Huber, of counsel), for Claimant.
    Jim Ryan, Attorney General (Robert T. Lane, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This cause comes before the Court on Claimant Vicki Sowizrol’s complaint, alleging negligence and seeking compensation from the Respondent State of Illinois for injuries she sustained, allegedly caused by a hole in Higgins Road. A hearing was conducted before Commissioner Hanley and the Claimant presented three witnesses. In addition, the parties agreed that Claimant could supplement the record with the evidence deposition of Dr. Daczewycz, Claimant’s surgeon. Claimant presented Claimants exhibit nos. 10, 11, 12, 13 and 14, which were admitted into the record. Respondent did not present any witnesses. Respondent offered into evidence one exhibit which, based upon Claimants objection, was not admitted into the record.

On August 5, 1988, Mrs. Sowizrol visited Schultzs True Value Hardware Store, at 7020 West Higgins Road, in Chicago. Higgins Road is an east/west street. Schultzs is on the north side of the street. Claimant parked her car legally in front of the store, and went inside with her nephew to exchange a part. Upon exiting the store to return to her vehicle, Mrs. Sowizrol stepped off the curb, and stated she was looking for traffic. She stumbled forward and heard a crack, as if she had stepped on a tree branch. She immediately felt pain in her left foot. She sat down on the curb, because she thought that she was about to faint.

Claimant identified four photographs marked as Claimants exhibit nos. 13A, 13B, 13C and 13D. She identified the store, her car and the hole that she allegedly stepped in. Claimant’s exhibit nos. 13A, 13B, 13C and 13D were admitted into the record without objection. Mrs. Sowizrol returned to the store, with the aid of her nephew, where an ambulance was called, and she was subsequently taken to Resurrection Medical Center’s emergency room.

At Resurrection Medical Center, x-rays were taken which revealed a comminuted, or fragmented, fracture to the base of the fifth metatarsal, a bone on the outside of the left foot, near the joint. The fifth metatarsal is a weight-bearing bone, as described by Dr. Daczewycz. Mrs. Sowizrol was seen by Dr. Roman Daczewycz, an orthopedic surgeon, at the emergency room. A cast was applied to the foot and continued up to the knee. Prescription pain medication was prescribed, and Mrs. Sowizrol was instructed to use crutches and released.

The crutches seriously interfered with Claimants ability to function. At the time of her injury, Mrs. Sowizrol had a one-year old infant at home. She was unable to care for her child or family or perform her normal household duties while on crutches. Her mother assisted her by moving in to live with the Sowizrols. Mrs. Sowizrols mother helped to care for the children and with tasks around the house, such as managing the household, cleaning and preparing meals.

After approximately six weeks, the cast was removed, and a removable ankle sleeve, or brace, was prescribed. Mrs. Sowizrol still walked with crutches and experienced pain while wearing the ankle sleeve. Dr. Daczewycz prescribed a course of physical therapy, which lasted for approximately two months, until November, 1988. After completing physical therapy, Mrs. Sowizrol still experienced pain, soreness and discomfort in her foot. After Claimant felt a growth on the side of her foot, Dr. Daczewycz examined her and discovered that a bone spur, or growth, was present at the site of the fracture. He opined that the spur was a result of the fracture. Dr. Daczewycz prescribed pain medication and a course of conservative treatment, including exercises and foot soaks. The pain in Mrs. Sowizrols foot worsened, and she became unable to wear shoes or walk properly. She testified that her inability to walk properly caused back pain. Claimant returned to Dr. Daczewycz, discussed treatment options for her foot, and eventually decided to have surgeiy to remove the bone spur.

Dr. Daczewycz performed corrective surgery. After surgery, Mrs. Sowizrol could not walk and used crutches. She was again unable to care for her family or home. Her mother returned to live with the Sowizrols in order to assist her. Mrs. Sowizrol continued to wear the ankle sleeve. After the surgery, Mrs. Sowizrol continued to experience back pain, and was seen by Dr. Daczewycz. Prescription pain medication was given and the back pain eventually subsided.

Dr. Daczewycz examined Claimant in September, 1994. She still experienced problems with her foot some six years after the initial injury. He noted that there was a recurrence of the bone spur, which was causing her continued pain. He also noted that the scar tissue and tissue thickening were causing nerve entrapment, resulting in pain in her leg and foot. He advised her to begin strengthening exercises and prescribed pain medication.

Mrs. Sowizrol still has significant problems resulting from her injury. She experiences aching, pains and cramping in her foot and leg. This pain becomes worse with use, and she can only walk approximately one to two blocks before her foot begins bothering her. She has a scar on her foot, which causes her discomfort and requires frequent massage to alleviate pain.

Claimants group exhibit no. 14, indicating medical expenses in the sum of $7,193.58, was admitted into the record without objection.

Robert Callbeck, chief engineer for the city of Chicago, testified that he is familiar with the entity responsible for street maintenance on streets and roads within the city of Chicago. He testified that the State of Illinois is responsible for the maintenance of Higgins Road at 7020 West Higgins- Road, in Chicago. He further testified that the States responsibility encompasses travel lanes, parking lanes, curbs and gutters at that location.

Claimants exhibit nos. 10, 11 and 12, containing an affidavit by Mr. Callbeck and documents in support thereof, were admitted into the record without objection.

Kenneth Sowizrol, Claimants husband, testified that he is familiar with the condition of Higgins Road at 7020 West Higgins Road. He stated that holes are up and down the whole curb area. He took the photographs admitted into the record without his wife present. Mrs. Sowizrol later reviewed the photographs and identified the hole which allegedly caused her injury. Mr. Sowizrol “believed” that the hole Mrs. Sowizrol identified as the subject hole was present for at least two years prior to her fall. He testified that the hole was two to three inches deep.

The Law

Claimant argues that she has presented ample evidence, on both liability and damages, and the Respondent has not presented evidence denying liability.

Claimant states that the evidence is clear that the Respondent breached its duty to maintain Higgins Road in a safe condition, and that its breach caused Mrs. Sowizrols injuries. The States duty is outlined in Claimants exhibit nos. 10, 11 and 12, as explained by Mr. Callbeck. Claimants exhibit no. 12 is a letter issued by Respondent, confirming that maintenance of Higgins Road was the responsibility of Respondent at the time in question. The testimony of Kenneth Sowizrol confirms that Respondent breached its duty by allowing a large, dangerous hole to remain unrepaired for at least two years before Claimant was injured.

Similarly, the evidence that Mrs. Sowizrol sustained a serious, permanent injury as a result of Respondents alleged negligence is uncontradicted. Mrs. Sowizrol testified that she experienced pain, suffering and disability since her injury. Dr. Daczewycz testified that Mrs. Sowizrols problems, including the bone spur and its surgical removal, were caused by the fracture she sustained. He testified specifically that the fracture and subsequent problems were pain-producing. The fracture and its ensuing treatment required that Mrs. Sowizrol spend an extended period of time in a cast and on crutches. Over six years after Mrs. Sowizrols initial injury, and after a long period of treatment, she still experiences significant pain, discomfort and disability as a result of this injury.

Dr. Daczewycz further testified that Mrs. Sowizrol sustained permanent injuries which will continue to plague her in the future. He testified that she has a recurrence of the bone spur, manifested by discomfort with weight-bearing and walking.

Mrs. Sowizrol requests that this court award her $75,000 as fair compensation for the past six years, and future life expectancy of 38 years of pain, suffering and disability, and for medical expenses incurred as a result of the Respondents alleged negligence.

Claimant attached to her brief three exhibits (life tables and jury awards), which were not offered at the hearing, and shall not be considered by the Court.

Respondent argues that it owed no duty to the Claimant. Respondent claims it did not have notice of the alleged dangerous condition. The essential elements of a claim sounding in negligence are the existence of a duty of reasonable care owed Claimant by Respondent, breach of that duty, and injury proximately relating to that breach. Magnone v. Chicago & North Western Transportation Co. (1st. Dist., 1984), 126 Ill. App. 3d 170, 466 N.E.2d 1261, 1266.

Respondent argues that no evidence was presented to establish the State had notice of the hole that the Claimant allegedly stepped into and which injured her foot. In order for Claimant to recover, she must prove that the State had actual or constructive notice of the dangerous condition that allegedly existed. (Feldman v. State (1984), 36 .. Ct. Cl. 158, 160.) The mere fact that a dangerous condition existed is not, by itself, sufficient to constitute an act of negligence on the part of the Respondent. (Id. at 161.) We agree that the /as no evidence that the State had any actual notice of alleged hole that caused Claimants injury. Claimants husband testified that he may have mentioned the existence of the holes to the city alderman in passing. This recount of a possible mention of the problem to a city official would not constitute notice to the city, and does not put the State on notice. Further, no records of complaints regarding the alleged condition or State maintenance were introduced. It was not established that the State had constructive knowledge of the allegedly dangerous condition. It must be shown that the defect was substantial enough, and must have existed for such a length of time, that reasonable persons would conclude that immediate repairs should be made or, in the alternative, that warning signs be posted. (Aetna Casualty & Surety Co. v. State (1984), 37 Ill. Ct. Cl. 179, 181.) The Claimants husband testified that there were holes up and down the curb in front of Schultz’s True Value; however, there is no evidence that the State knew, or should have known, of the existence of the holes. There is no indication of how long the hole in question existed. The pictures offered at the hearing are not instructive. They offer no evidence of the age of the pictured hole, or whether there were any other holes in the area. Claimant has not established any evidence that the State knew, or should have known, of the alleged dangerous condition.

More importantly, Claimant offered no testimony of the Claimant’s nephew, who allegedly observed the incident, or the owner and employees of the store who could have given testimony as to the condition of the pavement and the length of time such condition, if defective, existed. Additionally, the “hole” which allegedly precipitated Claimants injury, does not appear, from Claimants photos, to constitute a defect of the nature to impose a duty of immediate repair and, thereby, imputed constructive knowledge to Respondent, or indicate a long-standing condition.

Based on the foregoing, this claim is hereby denied.