author: Jann, J. JANN, J.

text:
    (No. 89-CC-3674
    Lily Arlene Hall, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 19, 1991.

      Order filed August 27, 1992.

    Feirich, Schoen, Mager & Green, for Claimant.
    Roland W. Burris, Attorney General (Verne Dentino, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

Claimant alleges that she was injured due to the negligence of the State when she fell down an unlighted stairway while leaving the grandstand at the DuQuoin State Fair on August 31,1988. Claimant seeks damages in the amount of $100,000 for medical expenses and pain and suffering.

On August 31, 1988, Lily Arlene. Hall, the Claimant, and her three sisters attended the gospel sing at the State Fair at DuQuoin. Claimant drove from Carbondale to DuQuoin. She left home between 7:30 p.m. and 8:00 p.m. When she got to the fair, Claimant drove through the gate and parked in the parking lot. Claimant and her sisters then walked into the fairgrounds and went into the grandstand which had a free admission. They went through a double door into a room with a roof over it. They then went up two flights of stairs and sat in an area between sections F and J on Joint Exhibit 1, the seating chart for the grandstand. There were no ushers at the grandstand. When they arrived, the show had begun and the stage was lit up. They came onto the landing and went up approximately 12 rows, and sat down in the grandstand to watch the gospel show. There were no overhead lights on where they were sitting. There had been no intermissions while Claimant watched and overhead lights had never been turned on.

The four sisters stayed for approximately 45 minutes and then the Claimant decided she wanted to leave because her husband was not feeling well. The show was still going on. Only the stage lights were on. The Claimant and her sisters got up to leave and went out single file. The Claimant was third in line. They turned right and walked down and then back to the stairs. Claimant said she could not see the stairs. It was very dark in the stairwell. There were no lights on the stairs and no lights on the end of the seats; however, there was a bannister or railing. Claimant could not see where she stepped. She felt her way down with her feet, trying to feel the next step as she went. The steps did not feel uniform in size or shape. Suddenly Claimant fell full force on her left knee. Her knee made a cracking noise. She had no idea how many steps she had missed. Claimant and her sisters went down the same stairs they had come up. Claimant could not get up after the fall. Her sisters helped her up and then down the stairs. None of the other sisters fell and the fighting in the stairway was about the same when they left as when they had come in. They went outside and got on a tram. The tram took Claimant to the front gate. Claimants knee was starting to swell and she was in pain. A woman brought out a lawn chair for her to sit on and two sisters went to find a nurse or someone else to help. The sisters went to the Fair office. The sisters testified that the lady in the office advised them that there was an ambulance on the fairgrounds. The sisters said the lady in the office said it had been the intention to fight the stairwells, or words to that effect.

Claimant was taken to Marshall Browning Hospital by ambulance, where she remained for about two hours. A doctor was called in and Claimant was given crutches to use. She had an ambulance bill for $109 and a bill from Marshall Browning Hospital for $153. Claimant had pain for several days. She went to see Dr. Hurley, an orthopedic surgeon, on September 6, 1988. X rays showed the knee was fractured. The knee was wrapped in a bandage and later put in a cast. Claimant had the cast on for about six weeks. She was unable to do her household chores. She had pain in her leg for over six weeks. She took prescription pain pills for the pain. After the cast was removed, Claimant wore an immobilizer for three or four weeks. She had physical therapy five or six times. She stopped the physical therapy on her own and did not complete the recommended therapy.

Claimant still has problems with her knee. It aches in cold weather. She cannot walk, garden or swim as much as she used to. Claimant had bills from the Carbon-dale Clinic related to the injury totaling $447. Dr. Hurleys bills totaled $129.76. However, the last time Claimant saw a doctor about the knee was on December 19, 1988. On that date, she told Dr. Hurley she was doing well.

Dr. Philip Hurley testified that he provided care and treatment for Claimant for the injuries she suffered on August 31, 1988. He provided an orthopedic evaluation. Claimant had a nondisplaced oblique fracture of the left kneecap. This means there is a fracture but the bones have not separated. Claimants knee was put in a cast for one month and she was given pain pills. She also was directed to use crutches. The cast extended from just about the ankle to just below the groin. Dr. Hurley followed the patient until December 19, 1988. On October 6, 1988, as the healing was not complete, Claimants leg was recasted for three more weeks. On October 27,1988, there was no tenderness at the kneecap and the fracture was healed. Claimants knee was placed in an immobilizer and Claimant was prescribed physical therapy. Dr. Hurley said Claimant’s progress was very good. On November 14, 1988, her motion was up to 112° of flexion with full extension and there was no swelling, tenderness or damage to the kneecap. Her ligament exam was completely normal as were all tests given. On December 19, 1988, Claimant had a full range of motion and all exams were normal. Claimant did complain of occasional aching and discomfort in her knee after a busy day. Dr. Hurley has not seen the Claimant since December 19,1988.

Dr. Hurley formed the opinion that the injuries will not cause Claimant any disability in the future. It is unlikely she will require any future medical care, treatment or medication. However, the injury could possibly predispose her to arthritis of the knee. This risk is minimal. She should have no problem walking or swimming with the knee and she should have no further pain.

The State has a duty to use ordinary care to keep its property reasonably safe for the benefit of those who come upon its property, as invitees. (Peters v. State (1984), 36 Ill. Ct. Cl. 255.) The State has a duty to its invitees to warn them of hazardous conditions not readily apparent. Nolan v. State (1983), 36 Ill. Ct. Cl. 194; Ross v. State (1971), 27 Ill. Ct. Cl. 104; Kelly v. State (1969), 26 Ill. Ct. Cl. 426.

For the Claimant to establish a breach of the heretofore stated duties, the Claimant must prove by a preponderance of the evidence that a dangerous condition existed, that the State had actual or constructive notice of the dangerous condition, and that the State s negligence was the proximate cause of the Claimants injury. Perlman v. State (1979), 33 Ill. Ct. Cl. 28; Mackowiak v. State (1982), 35 Ill. Ct. Cl. 315.

Comparative negligence is to be applied in such cases. (Peters, supra.) A claimant is held responsible for all normal, obvious and ordinary risks at the time in question. (Fleischer v. State (1983), 35 Ill. Ct. Cl. 799; Duble v. State (1967), 26 Ill. Ct. Cl. 87.) A legal duty requires more than the possibility of occurrence and the State, like any other person, is charged with a duty only when harm is legally foreseeable. The issues of foreseeability and duty involve a myriad of factors, including the magnitude of the risk involved, the burden of requiring the State to guard against the risk, and the consequences of placing such a burden on the State. Wilson v. State (1989), 41 Ill. Ct. Cl. 50; Owens v. State (1989), 41 Ill. Ct. Cl. 109.

In this case, all four sisters went up the same stairs without difficulty in the same lighting or lack of lighting. Three of the sisters walked back down the stairs without incident. Only the Claimant fell. One sister used the railing to hold on to. The Claimant did not recall holding on to the railing before she fell. There was no evidence presented that the State had actual or constructive notice of a dangerous condition. There was no evidence that anyone else had ever had a problem on the stairway. The State is not an insurer of the safely of persons visiting its fairgrounds, but rather such visitors are owed a duty of reasonable care in maintaining the premises. (Berger v. State (1988), 40 Ill. Ct. Cl. 120.) Claimant chose to go down the dark stairway without holding the railing. Joint Exhibit 1 indicated several other exits down lower and closer to the lighted stage. No experts were called to testify about any dangerous condition that could have been discovered. The unknown woman in the office was not called to testify to learn of her position and knowledge or to confirm or deny her alleged statement of an intent to provide lighting in the stairwells of the grandstand. There was no testimony presented to prove who was actually in charge of the grandstand on the evening in question. No pictures of the stairway were presented for the trier of fact to review to see if the stair size, steepness and width were a dangerous condition. (Simpson v. State (1985), 37 Ill. Ct. Cl. 76.) Claimants failure to use the railing was significant contributory negligence. The Claimant has not met her burden of proof to show Respondent negligent.

Wherefore, it is hereby ordered that this claim is denied.

ORDER

JANN, J.

This cause comes on to be heard on Claimants motion for rehearing/revision of the Courts order entered August 19, 1992, denying Claimants claim for damages for personal injury.

The Court has carefully considered Claimants petition for rehearing and finds that Claimant failed to establish by a preponderance of the evidence that Respondent breached any duty owed to Claimant. Claimant notes the Court’s reference to the application of comparative negligence in such cases and asserts that said reference implies a finding of negligence on the parts of both parties. No such finding was made or implied.

Claimant has taken issue with several findings of fact in the opinion and argues hypotheses and facts not in evidence in attempting to persuade the Court to reconsider its findings. Upon review of the record, the Court affirms its opinion of August 19,1991.

It is hereby ordered that Claimant’s petition for rehearing/revision is hereby denied.


source: Caselaw Access Project

author: Patchett, J.

license: Public Domain

text:
    (No. 90-CC-0990
    Vic Eckmann and The Boatmen’s National Bank of St. Louis, as Executor of the Estate of William Cherrick under Letters of Office Issued August 14, 1987, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 4, 1993.

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

Patchett, J.

Claimant once again brings an action for damages as a result of flooding on his farmland. He claims he suffered property and crop damage as a direct and proximate result of the negligence committed by the State of Illinois and Department of Transportation.

In April 1986, and again in the fall of 1986, the Illinois Department of Transportation acquired a temporary construction easement to clean out part of the Schneider Ditch and construct Interstate 255. The ditch runs west from its origin under Interstate 255, under a road called Black Lane, and next to the Claimants land, where it takes a turn south, and finally drains into Brushy Lake. After completion of the construction, and the cleaning of part of the ditch, the flow of water through the ditch increased.

Claimant is an experienced farmer who operates his own irrigation business. Claimant and his father warned representatives of the Department of Transportation that their property would be flooded due to the increased velocity of water running through the ditch if a pumping station was not installed where the Schneider Ditch curves from west to south. The Department did not install the pump, and consequently the Claimants 40-acre tract of farmland was flooded in October 1986, and again in July 1987.

Claimant brought suit for damages suffered in the 1986 and 1987 floods in this Court. This Court held that the State was negligent in its construction of Interstate 255, and the accompanying cleaning of Schneider Ditch. The one who negligently alters the natural flow of water on the property of an adjacent landowner, and thereby causes damages, is liable to the adjacent landowner. (Mount v. State (1977), 31 Ill. Ct. Cl. 299; Branding v. State (1977), 31 Ill. Ct. Cl. 455.) In awarding damages to the Claimant in the former case, the Court considered contributory negligence. It was alleged that the Claimant failed to clean out the five-foot diameter culvert under his farmers field road prior to the floods. Accordingly, the Court reduced the actual damages in the prior case as a result of the contributory negligence.

Once again, the Claimant has suffered damages as a result of the State’s negligence in its construction of Interstate 255 and the cleaning of the ditch. The Claimant’s land was flooded again in March 1989. Prior to that flooding, the Court had already determined that the State was negligent in its construction of the interstate and the cleaning of the ditch.

The Claimant has presented adequate and substantial proof that, as a result of the flooding on this occasion, he has suffered a reduced yield of 59.91 bushels of wheat per acre on 40 acres at a price of $3.80 per bushel. This computes to a total monetary loss of $9,106.32. Claimant additionally expended money in pumping water off the 40-acre tract in an effort to mitigate the damages. He used 250 gallons of diesel fuel at a cost of 74 cents a gallon, 48 hours of labor at $7.50 an hour, and rented a water pump for three days at $200 per day. The total pumping cost was $1,145.

Claimants damages were reduced in the prior case before this Court because of his failure to clean out a culvert underneath his farm road. There was no evidence at this hearing that the culvert contributed to the flooding. In fact, the only evidence brought forth at the hearing before the commissioner of this Court was that the culvert was not the problem. Therefore, the Claimants contributory negligence in this case will be zero. The Claimant is awarded the sum of $10,251.32.


author: JANN, J.

text:
    (No. 90-CC-1939
    David Starks, Sr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 9, 1992.

    David Starks, Sr., pro se, for Claimant.
    Roland W. Burris, Attorney General (“Kay” Christine M. Giacomini, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

The Claimant filed his complaint in the Court of Claims on January 23, 1990, seeking $60,000 in damages from the State for injuries he received and for medical malpractice while an inmate in the Illinois Department of Corrections.

A trial was held before the commissioner assigned to the case on August 29, 1991. The evidence consists of the departmental report and the report of proceedings which was filed on September 17, 1991. The Claimant has failed to file a brief within the time limit set by rule, and the State has filed no brief. The Court will, however, thoroughly consider this claim without benefit of briefs and arguments.

The Court also notes that during the course of the trial, Claimant was granted 30 days to copy certain letters and file them as evidence in the case. No such letters were ever filed by the Claimant in this cause to date, and therefore said letters will not be considered as evidence by the Court based on Claimants failure to file said letters.

THE FACTS

Claimant testified that sometime in 1987 or 1988, he injured his back while at the Logan Correctional Center. He further claimed that, in 1989, while at Stateville, he was refused medical attention when he injured his back again. He claims he did see a doctor who gave him a cane but no medication. A year later he was sent to the prison in Danville. The pain was worse and he was still seeking medical attention. Defendant testified that the State owes him $50,000 for injuries to his back because it is the State’s job to protect him and give him medical assistance.

The injury is to Claimant’s lower back. He has requested medical attention but he claims none has been forthcoming. The injury itself, according to Claimant’s testimony, occurred at the prison in Logan while he was working out after boxing. He claims he was using weights and injured his back. He claims the State should have provided weight instructors. He was lifting 280 pounds.

Claimant also makes a claim against the State for medical malpractice because he has been refused medical treatment and is still being so refused. He claims $10,000 for bodily pain and mental anguish and suffering. He appeared in court for trial in chains and complained the chains caused pain.

Claimant testified he had nothing further to say about his injuries or his damages, and that they were “self-explanatory.” On cross-examination, Claimant did testily that he would still play basketball and box if he was allowed to leave his cell. Claimant also admits that no one from the Department of Corrections intentionally injured his back.

Dr. George Kuria testified for the State. Dr. Kuria is a licensed physician who provided medical care to Claimant. Dr. Kuria saw Claimant on December 1, 1989. Claimant, on that date, complained of back pain for three weeks after playing basketball. Dr. Kuria diagnosed non-serious muscular back pain. On May 18, 1990, Claimant was again seen by the doctor for knee pain. No mention of back pain was made by Claimant on that date.

In initially reviewing Claimants medical records, Dr. Kuria found no complaints by Claimant for back pain while Claimant was at Stateville. There was no record of back pain for 1987-88 for Claimant in the medical records according to Dr. Kuria. The only injuries complained of by Claimant in the medical records while Claimant was at Logan were for a twisted left ankle on June 21, 1988, while playing basketball and for something being in Claimants eye on August 25, 1988. In December of 1989, Dr. Kuria prescribed heat to back, Tylenol for pain, and back exercises for Claimant.

On September 11, 1990, Claimant complained of back pain. He also complained of back pain on February 20, 1991, on March 7, 1991, and on April 25, 1991. He was seen by doctors on all three occasions according to the medical records. On the last occasion, the records indicate Claimant refused to allow the doctor to examine him. On April 29, 1991, an X-ray report indicated that Claimant had a normal lumbar spine and had normal X rays of the back. The doctor reviewed the records further and found that on January 14, 1988, the Claimant complained of back pain from lifting weights. He was given Motrin for pain. This note corroborated Claimant's testimony and showed the doctor erred in his earlier testimony.

The departmental reports medical progress notes indicate that on January 14,1988, “received call from officer that inmate complained of back pain. When talked with inmate, he stated, T lifted a lot of weight last week and my back still hurts. I can’t hardly move.’ ” The Claimant was advised to come to sick call on January 15, 1989. He was prescribed Tylenol as needed and warm, moist heat. The medical notes further indicated that Claimant was lifting 200 pounds and his back hurt. He was seen by a nurse and a doctor was called on January 14, 1988. The doctor prescribed Motrin four times a day for three days. A doctor visited Claimant on March 24, 1989, in the segregational unit, and Claimant made “no requests.” On April 12, 1989, an intake screening was done for Claimant at Stateville. He made no medical complaints at that screening and had no physical limitations. The medical records indicate on November 27, 1989, Claimant complained of back pain and wanted to see the doctor because he hurt his back “2 weeks ago.” He had apparently hurt his back playing basketball.

While the records indicate that Claimant was seen by nurses on many, many occasions, no further mention was made of back pain by Claimant in the medical records.

The Law

Claimant presents two bases of recovery for the Court to consider. His first claim appears to be that somehow the State is responsible for injuries to his back. The second claim is a malpractice claim for being refused medical attention.

To prevail on his first claim, the Claimant must prove by a preponderance of the evidence that the State had a duty to protect Claimant from harm, that the State negligently breached that duty, and that the negligence was the proximate cause of Claimant’s injury. (Hoekstra v. State (1985), 38 Ill. Ct. Cl. 156.) The State owes a duty to prisoners, that being a duty of protection, and the State must exercise reasonable care toward the prisoners as the prisoners known conditions may require. However, the State is not an insurer of the safety of prisoners under its care. Komeshak v. State (1985), 38 Ill. Ct. Cl. 100; Reynolds v. State (1983), 35 Ill. Ct. Cl. 647.

In this case, the Claimant has failed to meet his burden of proof. The evidence indicates the Claimant may have hurt his back while lifting weights. There is absolutely no proof of any negligence on the part of the State in not providing supervision in the weight room or that a lack of supervision caused the injury. (Cooley v. State (1986), 38 Ill. Ct. Cl. 223.) The Claimant has failed to produce any evidence to support his claim. While the case may be self-explanatoiy to this Claimant, it is not self-explanatory to this Court absent any proof. Claimant was given a full and fair opportunity to present his claim and he failed to meet his burden of proof.

The second claim for medical malpractice also fails for want of proof. The State of Illinois has a duty to provide proper health treatment for inmates in the custody of the State, and the State must exercise ordinary and reasonable care for the inmates’ health and life under the circumstances of the particular case. (Peters v. State (1987), 40 Ill. Ct. Cl. 152.) Whether or not the State has failed to act in accordance with the standard of ordinary and reasonable care for the preservation of a prisoners health is a question of fact. (Desort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703.) In this case, no competent evidence was presented to indicate that Claimant was refused medical attention or that Claimant was provided inadequate medical care other than Claimants own conclusions and complaints. Claimant presented no medical expert testimony to substantiate his claim. This Court may not conclude on its own what is or is not appropriate medical care under the circumstances of this case without the aid of expert testimony. (Wood v. State (1985), 38 Ill. Ct. Cl. 9; Kennard v. State (1986), 38 Ill. Ct. Cl. 268.) In fact, the medical progress notes in the departmental report contradict Claimant and show that he was seen on numerous occasions by doctors and nurses for a litany of conditions and that he did receive treatment of some kind on most occasions. It is, however, the Claimants burden of proof to establish the standard of care and that a deviation from the standard of care was a proximate cause of his injuries. Claimant has failed to present such expert testimony and has therefore failed to meet his burden of proof and his claim must be denied. Stanley v. State (1986), 39 Ill. Ct. Cl. 107.

Wherefore, Claimants claim is hereby denied and this cause of action is dismissed with prejudice.


text:
    (No. 90-CC-2182
    De Edward Lang, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 31, 1992.

    Mitchell & Allen, for Claimant.
    Roland W. Burris, Attorney General (Paul Carlson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

On March 12, 1988, at approximately 2:30 p.m., there occurred a motor vehicle accident at the intersection of 25th Street and Martin Luther King Drive in the City of Chicago. The accident occurred between vehicles operated by State Police Officer Kyron St. Clair and De Edward Lang, the Claimant.

The exit off Interstate 55, also known as the Stevenson Expressway, to Martin Luther King Drive feeds into 25th Street and during this time frame was the site of construction because of work on the Dan Ryan and Stevenson Expressways in the City of Chicago. According to the evidence presented, Officer St. Clair and another officer riding as a passenger in St. Clairs vehicle had just exited the Stevenson Expressway and were attempting to park their vehicle in a safety zone area of Martin Luther King Drive. Their purpose was to observe vehicles coming off the Stevenson Expressway and onto 25th Street. Specifically, the State Police were there to prevent people from making a left-hand turn off 25th Street and onto Martin Luther King Drive to proceed northbound. There was clearly posted a “No Left Turn” sign at that location and there were barricades erected in such a way as to funnel the turning traffic in a southerly direction on Martin Luther King Drive. Officer St. Clair, called as a witness by the Claimant, admitted that he violated the veiy same traffic law which he was attempting to enforce by his presence at that location. The State Police had knowledge that a number of accidents had occurred in that location by virtue of the fact that motorists were exiting 25th Street and making a northbound turn onto Martin Luther King Drive. For whatever reason, this maneuver was dangerous and had caused a number of accidents at that intersection. Officer St. Clair was sent to the location to prevent that problem and ended up being a statistic of the intersection because he violated the no left turn sign.

The intersection is controlled by traffic control devices and there is an issue of fact as to the color of the lights for the respective parties. The Claimant, a Chicago police officer, claims he had the right-of-way and had the green light as he proceeded southbound on Martin Luther King Drive. Officer St. Clair testified that he thought he had the green light at the time he proceeded across Martin Luther King Drive to make the illegal turn. In addition, Trooper Joiner, the passenger in St. Clair’s vehicle, testified that while he did not recall how the accident happened, he did believe the light was green for the vehicle of the State trooper. In addition, the State called Sgt. George Michael, the supervisor on duty at the time who investigated the accident. He noted the skid marks and calculated the speed of the Claimant’s vehicle as being in excess of the speed limit. However, Sgt. Michael also indicated that Officer St. Clair had told him St. Clair was making a right-hand turn to go south on Martin Luther King Drive. Physical evidence presented included certain photographs of the location. Because of the construction and the configuration of the intersection, it was difficult for either party to see the vehicle with which it would eventually come into contact until immediately before the impact. There were cement walls approximately six- to seven-feet high running in the southbound lanes on Martin Luther King Drive which prevented both the Claimant and the occupants of the State vehicle from seeing each other. It is the opinion of the Court that the State Police vehicle pulled into the intersection because the trooper could not see any vehicles coming in the southerly direction and did so against the traffic light, therefore failing to yield the right-of-way to the Claimant’s vehicle.

Claimant introduced evidence of property damage to his vehicle of $400 which was paid by Claimant. Claimant received medical care as a result of his neck and back injuries incurred in the accident. Paid medical bills in the amount of $1,428 were admitted into evidence. Claimant also lost two weeks pay in the amount of $1,350. Claimant continued to have headaches and pain associated with his injuries for about one year following the accident.

Wherefore, Claimant is awarded $4,500 in full satisfaction of this claim.


text:
    (No. 90-CC-2258
    Cleveland Ware, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 30, 1993.

    Cleveland Ware, pro se, for Claimant.
    Roland W. Burris, Attorney General (Verne E. Dentino, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

Claimant is a resident of the Illinois Department of Corrections and seeks judgment against the Department in the sum of $28.90 for the loss of a personal fan. He claims the fan'was lost or misplaced by agents at Menard Correctional Center.

On March 1, 1988, Claimant was walked from his jobsite to the segregation unit. He was not given an opportunity to pack his property. He claims that he was informed that the agents of the Department went to his cell, took his property out and left it at the sergeants desk. He also claims that he was informed that his property was taken to the personal property officer. That officer later denied ever receiving the property in question. Claimant did in fact have a cellmate at the time who was in the cell when the Claimant was placed in segregation. After being released from segregation, Claimant was placed in a different cell with a new cellmate.

Correctional Officer Martin testified that although he didn’t actually pack Claimant’s property, he remembered it being packed by Officer Roth. Officer Roth testified that he was employed at Menard in March of 1988, and recalled going to the Claimant’s cell and packing property. He did not recall there being a fan among the personal effects. He claimed that he would have to see a property slip in order to refresh his memory.

When personal property of inmates is packed, property slips are completed by the officers doing the packing. In addition to the inmate’s copy and guard’s copy, the personal property officer receives a copy. Officer Roth completed the slip in question. He testified, however, that he could not remember if he delivered the slip to Claimant, or turned it over to some other officer to deliver to the Claimant. Officer Roth did not know whether Claimant received a copy of the property slip. He also could not remember if Claimant’s property included a fan.

Officer John Guthman testified that in March 1988, he served as a personal property officer at Menard Correctional Center. He could not determine whether a property slip had been completed covering the items removed from Claimant’s cell. He did identify a personal property receipt form signed by Claimant reciting that he had received his property after being returned to Menard from another institution on February 18, 1988. At that time, there was no indication on the property receipt that Claimant had a fan in his possession.

Officer Guthman did, however, identify a document on which the Claimant reported that the fan in question had in fact been stolen from him on June 8,1989.

This hearing was held before a commissioner of this Court who had an opportunity to observe the witnesses during testimony. It is the opinion of the commissioner that the Claimants testimony was not credible. Furthermore, the Departments evidence established that Claimant did not have a fan shortly before the incident in question. Claimant offered no evidence to prove that he had acquired a fan in the interim between the time that his personal property was inventoried upon his return to the prison on February 18, 1988, and the time he claims that the fan was lost as a result of actions by agents of the Department.

We therefore deny this claim.


author: Frederick, J.

text:
    (No. 90-CC-2489
    Robert Derenski, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 31, 1992.

    Abrams & Chapman, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant in his complaint seeks the sum of $2,245 from the State for breach of contract. Claimant alleges that he entered into a contract with the Department of Conservation for the rental of a boat slip at North Point Marina for the 1989 boating season. Respondent was unable to furnish the slip at the time agreed upon due to what the State has claimed to be an act of God. The Department of Conservation has refused to refund to Claimant the $2,245 deposit made by Claimant for the boat slip.

The case was tried by Commissioner Weinberg.

The Facts

Claimant, Robert Derenski, owned a 40-foot Viking Sport Fisherman boat. He had docked the boat at the Bell Harbor Marina in Racine, Wisconsin, from the time he purchased the boat. In 1988, he received fliers regarding a proposed marina to be called North Point Marina. He also saw an advertisement in the paper about the marina. North Point Marina is in Illinois, just south of the Wisconsin border. Claimant investigated the proposed marina because it was closer to his home in Glenview, Illinois, than was the Racine, Wisconsin, dockage. Claimant contacted the North Point Marina sales office in 1988 and obtained a brochure. The brochure in its very first sentence says “North Point Marina is ready.” The brochure in two separate statements goes on to say the marina would open in April of 1989.

Claimant made an application for a slip in September of 1988. When he sent in his application, he requested a 45-foot slip and . also sent in a $200 check for the nonrefundable deposit which had to accompany the application, according to the application form. A short time later Claimant received a letter from the Department of Conservation acknowledging his application and deposit. Claimants slip assignment was noted on the receipt copy of his application which was returned to Claimant by the Department of Conservation. The slip assigned was slip No. 39. In December of 1988, Claimant made a second application as Claimant thought he would be selling his 45-foot boat and obtaining a larger boat. The second application was for a 55-foot slip and can-celled the first slip. The new slip was slip No. 17.

In December of 1988, Claimant received another letter from the Department. This letter indicated that the project was “on schedule” and an opening of April 15, 1989, was anticipated. The letter also indicated that 50% of the annual rent less the $200 deposit was due by March 1,1989.

On January 16, 1989, the Claimant signed the Illinois Department of Conservation Harbor Occupancy Agreement for North Point Marina. The Department approved the agreement on March 2, 1989. The agreement signed by the parties fails to indicate the year the rental is for and fails to state the total rental for the slip. The agreement does state that one-half payment for vessel accommodations must be remitted by March 1. If no payment is received by the State by March 1, the agreement becomes null and void and all deposits are forfeited to the State. A second payment of one-fourth of the actual fee is to be paid by May 1 and a final payment of one-fourth the total fee is to be paid by July 1. The agreement then states “Slip payments are not refundable.” The agreement also adopts the Department of Conservation Administrative Rules found in title 17 of the Illinois Administrative Code. Claimant was required to pay the initial $200 deposit, $1,650 prior to March 1, 1989, $560 by May 1, 1989, and $560 by July 1, 1989, pursuant to the agreement.

On or about March 15, 1989, Claimant received a letter from the Department that indicated the February freeze had delayed construction. The letter indicated the commercial basin would be open by April 15, with the recreational basin open soon thereafter. On or about April 3, 1989, Claimant received another letter from the Department of Conservation. This correspondence indicated that continuous basin ice conditions in February and March prevented the installation of docks in the marina and that the project was over a month behind schedule. The Department indicated a May 1989 opening for the marina for all but commercial boats. Noncommercial boats such as Claimants were further notified that slips would open after May 1, 1989, as docks were installed. However, services might not be available and boats may be given temporary slip assignments until dock installation was complete.

The marina indicated that it was understood that these events would cause people to adjust their plans. In recognition of the inconvenience, everyone in the recreational basin received an additional 10% discount on all slips. Claimant was offered a temporary slip in the commercial basin but Claimant found this unacceptable. The commercial fishermen come in at 4:00 a.m. and make noise, which would have been unacceptable for his family.

Claimants slip was in the recreational basin. His slip was not ready on May 1, 1989. The marina indicated the slip would be ready shortly but it was not made ready until some time in June, with services on the dock available some time thereafter. Because of the delay, Claimant obligated himself for another years dockage at the Bell Harbor Marina in Wisconsin for the summer of 1989 and paid that marina $2,800. Claimant did in fact pay the Illinois Department of Conservation $200 on September 10, 1989, $1,650 on March 1, 1989, and $395 on May 2, 1989, for a total of $2,245. Claimant requested the Department return to him the $2,245. The Department refused to refund the Claimants payments but offered to credit $1,850 on dockage for the 1990 boating season for a slip of Claimants choice, depending on boat length and availability. Claimant declined the marinas offer.

The Law

This is a case of contract interpretation. The State prepared the contract at issue and therefore any ambiguities in the contract should be construed against the party preparing the contract. The specific provisions of the contract will prevail over the general provisions of the contract. (Kurson, Inc. v. State (1975), 31 Ill. Ct. Cl. 78.) When the brochures were published, when the Claimant s applications were made, and when the agreement was signed, neither party contemplated that the boat slip would not be available and that construction would be delayed. (Wieboldt Stores, Inc. v. State (1976), 31 Ill. Ct. Cl. 336.) It is undisputed that the boat slip that had been assigned to Claimant was not ready for use on April 1, 1989, and was not ready until late June. For whatever reason, the State did not perform according to the understanding of the parties. The State raises an “act of God” defense. (Barry v. State (1965), 25 Ill. Ct. Cl. 121.) However, there is no proof before this Court as to whether or not ice flows were taken into account in the State’s construction schedule. For an “act of God” defense to succeed, the State must prove that the State was completely free from fault. In the instant case, the State offered no proof as to this issue of whether the State had considered ice problems in its construction schedule.

The States offer to apply the 1989 monies paid by Claimant to the 1990 boat slip fees indicates the State knew it had not performed the 1989 contract. The State’s position is that the language in the agreement stating that slip fees are not refundable is the bar to refunding the money to Claimant. However, the situation that arose (the slips being unavailable) was not contemplated by the Respondent. This Court has long held that the language of a contract is not controlling in determining the parties’ agreement when other circumstances are also relevant in determining the agreement. Child Development Centers, Inc. v. State (1984), 36 Ill. Ct. Cl. 138.

It is the finding of the Court that the nonrefundability of the slip fees clause only contemplated the situation where the slips were in existence and the Respondent attempted to back out of the agreement. Any other interpretation would be unconscionable and could even lead to situations where the State could lease the same slip to any number of boats and refuse to refund any fees.

A review of the exhibits also shows that an ambiguity exists in the nonrefundability clause. (McDonnell-Douglas Automation Co. v. State (1983), 31 Ill. Ct. Cl. 47.) The application form prepared by the Department states that “A $200.00 non-refundable deposit must accompany the application.” The contract prepared by the Department states in part, “If no payment has been received by said date (referring to the March 1 payment), this agreement will be null and void, and any deposits paid shall be forfeited to the Department of Conservation * 0 After the paragraph on forfeiture, a new paragraph with a single sentence states, “Slip payments are not refundable.” The contract does not state that slip payments are forfeited to the State as are deposits. The Claimant did make the March 1 payment. This ambiguity must be interpreted adversely to the party drafting the contract and no forfeiture is called for under the facts of this case.

A review of 17 Illinois Administrative Code, ch. 1, sec. 220.10 et seq., which were incorporated into the agreement, indicates the slips were to be generally available from April 1 to October 31. The Code also indicates only the $200 deposit is nonrefundable. (17 Ill. Adm. Code, sec. 220.60(b) (2).) The only other forfeiture provisions in the Code under section 220.30(a) (6) and section 220.30(a) (10) (A) have no factual relation to this case, as Claimant was willing to accept the slip which was first offered to him and Claimant did comply with the provisions of his permit and pay his slip fees.

The State breached the agreement by failing to provide the Claimant with the boat slip he had contracted for and an award should be made because of the State’s failure to perform the obligations of the contract. Duffy Co. v. State (1981), 34 Ill. Ct. Cl. 69.

Claimant paid $2,245 for a boat slip he did not receive pursuant to the agreement of the parties. The $200 deposit was nonrefundable. For the foregoing reasons, Claimant is awarded the sum of $2,045.


author: Montana, C.J.

text:
    (No. 90-CC-2698
    Dimas Guzman, Claimant, v. The State of Illinois, Respondent.

      Order filed July 13, 1992.

    Dimas Guzman, pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause comes on to be heard on the Respondents motion to dismiss, due notice having been given, no objection having been filed, and the Court being advised, finds:

Claimant filed this claim seeking to recover the amount of an unemployment insurance warrant issued by the Illinois Department of Employment Security. The Division of Benefit Payment Control of the Department of Employment Security holds administrative hearings to determine whether a warrant should be reissued. The claims adjudicator denied reissuance of the warrant.

Section 3 — .104 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 104) states that jurisdiction to review final administrative decisions is vested in the circuit court. The fact that the review of the decision of the Division of Benefit Payment Control is provided through administrative review in the circuit court prevents the Court of Claims from assuming jurisdiction over claims such as the instant one. Rivera v. State (1981), 35 Ill. Ct. Cl. 375; Moore v. State (1980), 34 Ill. Ct. Cl. 108; Anaya v. State (1980), 34 Ill. Ct. Cl. 161.

We further find that Respondents counsel learned that, notwithstanding and unaware of the above Court of Claims decision, attorneys for the Legal Assistance Foundation of Chicago and the Department of Employment Security entered into a consent decree before Federal Judge Prentice Marshall in a case entitled Bums. As part of such decree, the parties agreed to add language to Benefit Payment Control’s written administrative decisions that suggested that a person aggrieved by the decision should proceed in the Court of Claims. Respondent’s counsel informed both the Legal Assistance Foundation and the Illinois Department of Employment Security of the jurisdictional problem of which the signers of the consent decree were unaware. The Department of Employment Security is attempting to resolve this problem by administratively reissuing or rehearing those pending cases, such as the instant one, where review was erroneously sought in the Court of Claims, so that claimants will have enough time to seek review in the circuit court.

In the motion at bar, Respondent seeks dismissal without prejudice and with leave to file if the Benefit Control Division of the Department of Employment Security does not reissue its administrative decision. Respondent does not indicate how the Court should proceed with the case should it be dismissed and then refiled. Jurisdiction cannot be vested with a court solely based on agreement of the parties and Respondent does not suggest the cited cases are wrong.

Wherefore, it is hereby ordered that this claim be, and hereby is, dismissed for lack of jurisdiction and without leave to refile.


author: Montana, C.J. Frederick, J.

text:
    (No. 90-CC-3227

      In re Application of Janet M. Luce, Claimant.

      Opinion filed November 19, 1991.

      Order filed May 13, 1993.

    Mark A. Pazzanella, Ltd., for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This claim is before the Court by reason of the death of William J. Luce, who was a police officer with the City of Chicago Police Department. The decedents surviving spouse, Janet M. Luce, seeks compensation pursuant to the terms and provisions of the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 281 et seq.), hereinafter referred to as the Act.

The Court has carefully considered the claim for death benefits submitted by the Claimant, together with the written statement of Officer Luce’s supervising officer and documentation submitted therewith, the medical examiner’s certificate of death, and the report of the Attorney General.

The record reveals that Officer Luce allegedly suffered radiation contamination while participating in a special Chicago police training seminar at Argonne National Laboratory on August 27, 1980. The participants in the seminar were testing nightvision rifle sights which contained a radioactive isotope called Promethium 147. The capsule containing the isotope apparently broke in one of the sights, directly exposing a number of the testers, including Officer Luce, to the radiation. Officer Luce died almost nine years later, on August 14, 1989. The medical examiner’s certificate of death indicates that Officer Luce was pronounced dead on August 14, 1989, at Michael Reese Hospital in Chicago. The cause of death is listed as metastatic parotid carcinoma.

For an award to be granted pursuant to the Act it must be shown that the officer was killed in the line of duty as defined in the Act. Section 2(e) of the Act provides, in relevant part, that

‘“killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer * * " if the death occurs within one year from the date the injury was received ° *

The record before this Court indicates that Officer Luce allegedly suffered his injury on August 27, 1980. His death did not occur until almost nine years later, on August 14, 1989. Since section 2(e) of the Act requires that the death must occur within one year from the date the injury was received for an award to be granted, we have no alternative but to deny this claim.

Based on the foregoing, it is hereby ordered that this claim be, and hereby is, denied.

ORDER

Frederick, J.

This cause coming on for hearing on Claimants petition for rehearing, and the Court having considered the arguments of counsel, and the Court being fully advised in the premises,

Wherefore, the Court finds:

1. That the Claimant filed her claim for death benefits under the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics and Firemen Compensation Act on May 31,1990.

2. The Attorney General filed his report on July 10, 1990, and made no recommendation in this matter.

3. This Court entered its opinion denying the claim on November 19,1991.

4. Claimant filed her petition for rehearing on December 13,1991.

5. Oral arguments were held on the petition before the Court on March 23, 1992.

6. That the Claimants decedent was allegedly injured on August 27, 1980. The record reveals that Officer Luce allegedly suffered radiation contamination while participating in a special Chicago police training seminar at Argonne National Laboratory. The participants in the seminar were testing nightvision rifle sights which contained a radioactive isotope. The capsule containing the isotope apparently broke in one of the sights, directly exposing Officer Luce to radiation.

7. Officer Luce died on August 14, 1989, of metastatic parotid carcinoma.

8. Officer Luce discovered his cancerous condition on December 7, 1988.

9. Section 2(c) of the Act provides, in relevant part, that

“killed in the line of duty means losing one’s life as a result of injury received in tire active performance of duties as a law enforcement officer • 0 ° if the death occurs within one year from the date the injury was received ° °

Therefore, it is the opinion of the Court:

A. That the petition for rehearing is denied.

B. This Court must find that the injury was received by Officer Luce on August 27, 1980. There is no other evidence before the Court that would indicate another date for the receipt of the injury. Claimant urges us to adopt and use a date of the discovery of the injury rule. To do so would be to amend the statute which specifically states “if the death occurs within one year from the date the injury was received.” We do not have the authority to amend the statute, as much as we may want to make an award on this case. The Court of Claims has no jurisdiction over claims sounding in equity. Wil-Freds Inc. v. State (1989), 41 Ill. Ct. Cl. 44; In re Application of Ward (1981), 35 Ill. Ct. Cl. 398.

In reviewing this case, this Court must find an injury which occurred within a year of the injury which caused the death to grant a recovery. While coverage under the Act is not limited to healthy people, we still must find an injury which occurs within the year. (In re Application of Parchert (1980), 33 Ill. Ct. Cl. 312; In re Application of Sparling (1983), 36 Ill. Ct. Cl. 353.) There is no evidence of an injury being inflicted within a year of Claimants decedents death in the present case. Discovery in 1988 of the prior injury in 1980 does not fulfill the requirement of the Act.

In the heart attack cases we have decided, we have always looked for something unusual that has occurred within the job that precipitates the heart attack before allowing recovery. (In re Application of Gidley (1983), 36 Ill. Ct. Cl. 350.) No unusual job-related circumstances within a year of the death have been related to the Court in this case. If there had been, we certainly would have considered an award. The Claimant has the burden of proof in this case of proving Claimants decedent was killed in the line of duty within the meaning of the statute. (In re Application of Lopez (1987), 39 Ill. Ct. Cl. 315.) Unfortunately, the burden of proof has not been met.

This Court has been consistent in holding that the death must occur within one year from the date the injury was received and that the injury must arise from violence or other accidental cause. (In re Application of Berg (1984), 36 Ill. Ct. Cl. 370; In re Application of Waliczek (1983), 35 Ill. Ct. Cl. 929.) This Court has previously denied a claim where cancer was the cause of death. In re Application of Findlay (1977), 32 Ill. Ct. Cl. 369.

As harsh a result as this may seem, it is the proper result under the evidence and law of the case. For the foregoing reasons, it is the order of this Court that the request for rehearing is denied and the claim is dismissed.


text:
    (No. 90-CC-3373
    Dorothy Hill, Claimant, v. The State of Illinois, Respondent.

      Order filed July 21, 1992.

    Dorothy Hill, pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause comes on to be heard on the Respondents motion to dismiss, due notice having been given, no objection having been filed, and the Court being advised, finds:

Claimant filed this claim seeking to recover the amount of an unemployment insurance warrant issued by the Illinois Department of Employment Security. The Division of Benefit Payment Control of the Department of Employment Security holds administrative hearings to determine whether a warrant should be reissued. The claims adjudicator denied reissuance of the warrant.

Section 3 — 104 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 104) states that jurisdiction to review final administrative decisions is vested in the circuit court. The fact that the review of the decision of the Division of Benefit Payment Control is provided through administrative review in the circuit court prevents the Court of Claims from assuming jurisdiction over claims such as the instant one. Rivera v. State (1981), 35 Ill. Ct. Cl. 375; Moore v. State (1980), 34 Ill. Ct. Cl. 108; Anaya v. State (1980), 34 Ill. Ct. Cl. 161.

We further find that Respondents counsel learned that, notwithstanding and unaware of the above Court of Claims decision, attorneys for the Legal Assistance Foundation of Chicago and the Department of Employment Security entered into a consent decree before Federal Judge Prentice Marshall in a case entitled Bums. As part of such decree, the parties agreed to add language to Benefit Payment Controls written administrative decisions that suggested that a person aggrieved by the decision should proceed in the Court of Claims. Respondents counsel informed both the Legal Assistance Foundation and the Illinois Department of Employment Security of the jurisdictional problem of which the signers of the consent decree were unaware. The Department of Employment Security is attempting to resolve this problem by administratively reissuing or rehearing those pending cases, such as the instant one, where review was erroneously sought in the Court of Claims, so that claimants will have enough time to seek review in the circuit court.

In the motion at bar, Respondent seeks dismissal without prejudice and with leave to file if the Benefit Control Division of the Department of Employment Security does not reissue its administrative decision. Respondent does not indicate how the Court should proceed with the case should it be dismissed and then refiled. Jurisdiction cannot be vested with a court solely based on agreement of the parties and Respondent does not suggest the cited cases are wrong.

Wherefore, it is hereby ordered that this claim be, and hereby is, dismissed for lack of jurisdiction and without leave to refile.


text:
    (No. 91-CC-0082
    Billy Jackson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 6, 1992.

    Billy Jackson, pro se, for Claimant.
    Roland W. Burris, Attorney General (Rorert J. Irsuto and Margaret Marcouiller, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Frederick, J.

This cause comes before the Court on a complaint filed by Claimant, Billy Jackson, on July 12, 1990, seeking the sum of $1,530 pursuant to section 89(d) of the Court of Claims Act (Ill. Rev. Stat. (1989), ch. 37, par. 439.8(d)). Billy Jackson was incarcerated in the Illinois Department of Corrections. The case arises out of an incident that occurred on April 18, 1990, when water flowed into Claimants cell, which allegedly damaged personal property owned by Claimant.

The case was tried by the commissioner assigned to the case. Billy Jackson appeared at a hearing conducted on September 6, 1991. Claimant offered Claimant’s Exhibit No. 1, which was admitted into the record without objection by the Respondent. The Exhibit is a diagram of Claimant’s cell, No. 2A-04, indicating the location of the personal property in question in his cell. This was a cell in segregation where Claimant was in a 24-hour lock up.

Claimant testified that his cell was flooded with the water coming from the ceiling. He brought this fact to the guard’s attention but it took about one-half hour to shut the water off. It was another one-half hour before Claimant was given a mop to get the water out of the segregation cell. He was told that a pipe had broken in the upper galley. He was lying on his bed in his cell at the time of the flooding. He said the water flowed into his cell for one-half hour. Claimant offered Claimant’s Exhibit No. 2, which was admitted into the record without objection by Respondent. The exhibit is a written statement purportedly signed by Correctional Officer Greenwald, Badge No. 20, stating that the signatory witnessed Cell No. 2A-04, and the property in the cell, being flooded from a leak from the roof on April 18,1990.

Claimant’s claim for damages to his personal property is detailed as follows:

$ 150.00 for a Pioneer stereo receiver

210.00 for a Panasonic color television

70.00 for a Realistic cassette tape player

100.00 for a Technics turntable

1,000.00 for transcripts of prior legal proceedings

$1,530.00 Total

Claimant offered four documents into the record as Claimant’s Group Exhibit No. 3, which was admitted without objection. The exhibit contains four personal property permits: for a Panasonic color TV, a Pioneer stereo receiver, a Realistic cassette deck, and a Technics turntable.

The sums claimed for the property were estimated by Claimant. He arrived at the estimates by setting the value below the original purchase price. He was unsure what the cost would be to replace the transcripts. There were 1,546 pages of court transcripts. On cross-examination, Claimant stated that all of the property could have been repaired for $100. He could not afford the repairs. The property sat in his cell until it rusted. He gave the turntable and cassette deck to his wife. No receipts or other documents stating value or cost were provided. Claimant stated that he purchased the items from the commissary. He purchased the television for $259 over a year before the incident. He purchased the stereo for $220 in 1987.

The stereo equipment and the television were 2Vz to 3 feet off the floor on top of a desk. The water dropped from the ceiling onto the property. The water on the floor was IVz to 2 inches deep.

There were four additional documents that were attached to the complaint and these were offered into the record by Respondent as part of a larger group exhibit. The group exhibit was withdrawn after it was indicated that the four documents were part of the record by virtue of their attachment to the complaint. The four documents are as follows:

1. Formal inmate grievance dated April 18,1990;

2. Institutional Grievance Board decision dated June 7,1990.

3. Administrative Review Board Committed Persons Grievance Form dated June 15,1990; and

4. Letter of decision to Claimant dated June 26,1990.

The June 7, 1990, decision of the Institutional Grievance Board includes a statement that Correctional Officer Greenwald told the Board the property in question was damaged from a leak caused by another inmate. The Board found that the flooding was caused by another inmate and concluded that staff negligence was not involved and the grievance had no substance.

The June 26, 1990, decision of the Administrative Review Board denied the Claimant’s grievance. The Board indicated that, “there is not sufficient evidence or documentation that the Stateville administrative and/or staff was negligent.” While these documents were part of the record, they were not evidence in the case as the State failed to properly file a departmental report (74 Ill. Adm. Code 790.140). Claimant testified that the cell above him was not occupied.

Claimant cites Newsome v. State (1986), 38 Ill. Ct. Cl. 299, in support of his claim. In Newsome, the claimant’s toilet overflowed and destroyed his trial transcript and the Court ordered an award. There was no evidence presented by respondent of another inmate causing the flooding and the Court was of the opinion that Newsome’s loss was occasioned by the facilities of respondent and their failure to maintain their equipment. The management of the plumbing facilities in the cells housing inmates of facilities of the Department of Corrections is clearly the responsibility of the State of Illinois. (Wassinger v. State (1988), 41 Ill. Ct. Cl. 68.) Furthermore, when damages have been caused by something under the management of the Respondent and the damages are such that, in the ordinary course of events, the damage would not have happened if Respondent had exercised proper care, the incident itself affords reasonable evidence, in the absence of an explanation that the damages arose out of the Respondents want of due care. Childress v. State (1985), 37 Ill. Ct. Cl. 269.

It is clear in this case that Claimant did nothing to cause the damage to his own property. It is also clear Claimant brought the defective condition of the leaking water to the attention of Respondent and it took Respondent a half an hour to stop the leak and another half an hour to give Claimant a mop to try to clean up the water in his cell. Claimant was told that the cell above him was unoccupied. Respondent s attempted use of the Administrative Review Board decision as an explanation is insufficient. Respondent is therefore liable for damages proven by Claimant from the leaking water. The Claimant has the burden of proving his damages and absent such proof, no award may be entered. Harris v State (1989), 41 Ill. Ct. Cl. 184.

In this cause, Claimant presented no evidence as to the cost of the transcript. His claim for $1,000 was nothing more than a guess. Claimant presented no receipts or cancelled checks for the other items of personal property. His values for the stereo and panasonic television, while based on when they were purchased and the purchase price, were admittedly estimates by Claimant. The most credible evidence presented by Claimant was that everything could have been repaired for $100.

Accordingly, it is hereby ordered that the Claimant be, and hereby is, awarded the sum of $100 in full and final satisfaction of this claim.


text:
    (No. 91-CC-0177
    Regugio Raygoza and Allstate Insurance Co., as Subrogee, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 31, 1992.

    Simon, McClosky & Scovell, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This claim sounding in tort was brought for property damages to Claimant Raygozas automobile arising out of a collision with Illinois State Police Officer, Ivan Martinez, on August 3, 1989.

Claimant was northbound on Damen Avenue, Chicago, Illinois, and Officer Martinez was eastbound on 23rd Street. Officer Martinez testified that he was pursuing an alleged offender in a vehicle which had failed to stop at the stop sign on 23rd Street at Damen Avenue. Officer Martinez was driving an unmarked police car and stated he had activated a mars light which he had placed and held on the dash prior to arriving at the intersection in question. He testified that as he entered the intersection, he thought Claimant was going to yield even though there was no traffic control signal applicable to Claimant.

Claimant testified he saw a white vehicle come into the intersection from 23rd Street without making a complete stop. The white car cut in front of him and proceeded north on Damen. This vehicle was the object of Officer Martinez’ pursuit. Claimant slowed down to avoid colliding with the errant vehicle before crossing the intersection. He slammed on his brakes but was unable to avoid the collision with Officer Martinez’ car which was in pursuit of the white car. Claimant never saw the flashing mars light prior to the collision.

Evidence of property damage to Claimant’s vehicle was presented. Repairs totaled $1,254.19. Claimant was paid $754.19 by Allstate Insurance Company and paid a deductible of $500.

Assuming, arguendo, that Officer Martinez was displaying the mars light on his dash immediately preceding the collision, it is still the responsibility of the police officer to make sure that a vehicle operating legally with the right-of-way is going to stop before entering an intersection. The cause of this collision was the officer’s failure to yield the right-of-way to Claimant’s vehicle. Claimant’s property damage was the proximate result of Respondent’s negligence.

Wherefore, Claimant is awarded $500 for the deductible amount of his insurance policy and Allstate Insurance Company, as subrogee, is awarded $754.19 for repair of the vehicle.


text:
    (No. 91-CC-0390
    Malcolm Whitehead, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 17, 1992.

    Malcolm: Whitehead, pro se, for Claimant.
    Roland W. Burris, Attorney General (Diann Marsalek and Steven Schmall, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

JANN, J.

The substance of Claimants complaint is that during his incarceration at Logan Correctional Center, his feet were in a constant and continuous painful condition as a result of:

a) improperly sized boots issued to him (Claimant wears a size 12-E and prison boots are issued only in standard sizes — with no special width determination);

b) the boots that were issued to him were defective; and

c) the medical care he sought for his painful feet was inadequate.

The testimony is clear that throughout Claimants incarceration, he continuously complained of painful feet and, as a result of those complaints, he was seen by two different staff doctors on at least six occasions. At each of those visits to the staff physicians (Dr. Feinerman and Dr. Ulrich), his feet were examined. On more than one occasion, Dr. Ulrich removed callouses from Claimants feet. Eventually Claimant was issued a slow walkers pass — so that he would not be punished for being late to various details — and ultimately the medical staff assisted Claimant in obtaining a specially-ordered, low-cut second pair of prison shoes.

Claimant contends that since his feet were not properly attended to, he has been unable, since his release from Logan, to obtain a job in his chosen field (house painter) and claims lost wages in an amount of at least $10,000. Further, Claimant seeks an additional $5,000 for aggravation.

The Respondent contends that while Claimant was an inmate at Logan Correctional Center, he was properly and continuously attended to. Indeed, the records indicate that in the six-month period from December 1989 to July 1990, he visited the clinic 34 times. They point out that Claimant was in poor physical health, having suffered a stroke in 1987, which left his whole left side weak. He also suffered from acute hypertension, diabetes and obesity (weighing in the neighborhood of 350 lbs.). The State contends, on balance, that the cumulative effect of Claimants overall ill health was basically the reason that his feet hurt. Respondents contention is supported by medical records from Claimants hospitalization in 1987 which indicated that Claimant showed “extensive callous formation at the feet bilaterally” and “patient has decreased heel-to-shin on the right because of difficulty moving the weight.”

The Claimant contends that the shoes first issued to him at Logan were defective. He testified that the alleged defect in a plastic toe cap of the shoe caused his condition which will now require a surgical procedure. Claimants allegation of defect is not supported by objective testimony or medical records made a part of the record at hearing.

Claimant testified that upon his release he sought further treatment at a private foot specialist, Dr. Hugh D. Russell, Chatham Foot Specialists. Claimant testified that it was Dr. Russell’s opinion that the ill-fitting shoes caused injury to his feet. However, the records subpoenaed and introduced into evidence from Dr. Russell make no indication of the cause of his condition resulting from shoes. The records again make note of Claimant’s obesity, hypertension and the presence of bunions and callouses.

No proof of improper medical care was presented other than Claimant’s conclusory testimony. Claimant must establish a breach of duty through expert testimony to establish that Respondent deviated from the required standard of care. Davis v. State, 39 Ill. Ct. Cl. 185.

There is simply insufficient evidence that the shoes issued to Claimant are the cause of his current condition. An award cannot be based on mere conjecture, but it must be proven more probably true than not true that the State’s negligence was in fact at least a probable cause of the Claimant’s injury. Walter v. State, 42 Ill. Ct. Cl. 1.

The record indicates that Claimant received continuous care during his incarceration. Claimant has failed to prove that Respondent breached its duty of care to Claimant.

Wherefore, this claim is hereby denied.


author: Sommer, J.

text:
    (No. 91-CC-0630
    Ronnie Hamilton, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 29, 1992.

    Ronnie Hamilton, pro se, for Claimant.
    Roland W. Burris, Attorney General (Gregory T. Condon, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This claim is before the Court on a motion for summary judgment filed by the Claimant and a counter-motion for summary judgment filed by the Respondent. The parties have presented various documents with their motions, and the Claimant has provided by affidavit certain information requested by this Court s order of July 24, 1992.

The facts of this claim are agreed. When the Claimant was moved from Menard Correctional Center to the Dixon Correctional Center in April of 1990, his television arrived at Dixon in a nonworking condition. The television had been working when it left Menard. The Claimant states that “the picture tube and the circuit boards and other inside components, were permanently broken.”

The Claimant went through the prison administrative procedures and was awarded $49.12. He contends that a similar television costs $242, and that he should receive the difference between $242 and $49.12, which is $192.88.

The State contends that the Claimant accepted $49.12 in full and complete satisfaction of his claim, and that he signed an agreement releasing the State from liability for damage of his personal property.

It is our opinion that the State’s contentions are faulty. The signed release is a part of the Claimant’s 1986 permit to have the television. The Claimant had no choice but to sign; and if such presigned releases were effective, no prisoner would ever recover for damage to his property. This Court has consistently held that prisoners can recover for damage to property held exclusively in the possession of the State. Additionally, the State contends that the Claimant is bound by the administrative decision to award him $49.12 and the fact that he accepted the money. In matters such as this, monies awarded from the tort claim fund are placed in the prisoner’s trust account. We do not believe that the placing of the money in the trust fund amounts to a full satisfaction and accord agreed to by the Claimant.

The question remaining is whether the amount of $49.12 is adequate. This figure was arrived at by assigning substantial depreciation. In this case the Claimant either has a working television set or he has nothing, and as the Claimant is a pauper, his being able to raise the entire remaining $192.88 to buy a new set is problematical. The prison administrative procedure may not make low awards and claim such to be binding, thereby depriving the prisoner of his property.

In this claim we believe the administrative award to be so low as to deprive the Claimant of his property. We award the Claimant $175, allowing for some depreciation. It is therefore ordered that the Claimants motion for summary judgment is granted and the Respondent’s countermotion for summaiy judgment is denied, and the Claimant is awarded $175.


text:
    (No. 91-CC-0796
    Rosemarie Krolik, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1993.

    Rosemarie Krolik, pro se, for Claimant.
    Roland W. Burris, Attorney General (Margaret A. Marcouiller, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant seeks compensation for damage to her 1972 Pontiac Grand Prix which allegedly occurred on August 10, 1989, when the car was towed off of Interstate 55 by an Illinois Department of Transportation (IDOT) tow truck. Claimant ran out of gas near the Kedzie Avenue exit ramp and the California Avenue entrance ramp on the Stevenson Expressway. Claimant testified that she pulled the car off the roadway onto the shoulder and that it was not an impediment to other traffic. Claimant left the vehicle and went to purchase fuel.

Respondent’s employee, Charles LoCoco, an IDOT tow truck operator, testified that Claimant’s vehicle was left unattended in the roadway and was obstructing traffic. Mr. LoCoco testified that it is IDOT policy to move abandoned autos out of the roadway to the nearest safe location in as expedient a manner as possible. Mr. LoCoco further stated that as this incident occurred during rush hour at a point where there was no shoulder to the roadway, the vehicle presented a particularly dangerous situation. Mr. LoCoco towed the auto to a safe area.

Claimant claims the auto was negligently towed over the curb line which caused damage to the vehicle, rendering it inoperative in its present condition. Claimant seeks damages in the amount of $1,122 for alleged damage to the frame and transmission of her car.

Although a number of factual matters are disputed by the parties, the record is clear that Claimant left her auto unattended on or near a public roadway. Pursuant to the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 9514, par. 4 — 203(f), which in pertinent part reads as follows:

“Any law enforcement agency in the case of a publicly owned real property may cause any motor vehicle abandoned or left unattended upon such property without permission to be removed by a towing service without liability for the costs of removal, transportation or storage or damage caused by such removal, transportation or storage.”

Assuming each and every allegation made by the Claimant is true and correct, the legislature has provided immunity for the State during the course of such removal and the Claimant has provided no facts which place her outside the scope of this immunity.

Wherefore, Claimants claim is hereby denied and this cause of action is dismissed with prejudice.


text:
    (No. 91-CC-1047
    Steven Karry, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 20, 1992.

    Steven Karry, pro se, for Claimant.
    Roland W. Rurris, Attorney General (“Kay” Christine M. Giacomini, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

The Claimant brings this claim for personal injuries he alleges he received as a prisoner in the Illinois Department of Corrections. The Claimant alleges that on June 14, 1990, water flooded his cell and hallway outside his cell and that he slipped on the wet floor and injured himself. He also alleges the prison medical staff was negligent in the treatment of his injuries. Further, he claims a denial of due process in that the Court refused him appointed counsel.

In February 1990, the Claimant was incarcerated at the Centraba Correctional Center. He was placed in a cell next to a shower. The shower curtain was at least a foot above the floor, so water from the shower came out into the wing of the prison. The porters would mop up the water periodically. The Claimant complained and requested his cell be changed. The Claimant then was moved to a different cell but it, too, was next to a shower. He encountered the same water problem.

The Claimant testified that on June 14, 1990, he was returning to his cell from his GED class. As he walked into the corridor of his wing, he found water on the floor. He went into his cell and changed his clothes. He left his cell and went to his graduation. He returned two hours later. He changed his clothes in his cell. He was told by an officer to report to the kitchen. When he came out of his cell, he slipped and fell in the water and hit his head. When he tried to get up, his leg and back were painful and he couldn’t move. Another inmate eventually helped him into his cell where he went into a deep sleep. He was taken later to the medical unit in a wheelchair. He was given two Tylenol pills and told to walk back to his unit. When the Claimant told the nurse he could not walk, he was told to return to his unit or be written up for violating a direct order. It took him 20 to 30 minutes to walk back to his cell because he was in so much pain. He did not get to see the doctor but was given a three-day lay-in slip by the nurse. He saw the doctor on June 18, 1990. The Claimant was X-rayed and given Advil. The Claimant was told the X rays were negative.

On August 5, 1990, the Claimant was transferred to the prison at Danville. He saw the doctor at Danville on August 17, 1990. The Danville doctor put the Claimant on heat treatment and gave him pain medication and muscle relaxers. He was given a CAT scan. The Claimant contends it showed that his spine, at L4 and L5, was compressed and the cartilage in the middle was swollen. At the time of trial, the Claimant was still under the doctor’s care and wore a back brace. He was taking medication and periodic heat treatments.

The Claimant’s complaint is that the officials at Centraba knew the shower curtains were too short to prevent water from staying in the shower and that they did not take any steps to make a hazardous condition less hazardous. The Claimant testified as to various options available. The officials could have put on a longer shower curtain. They could have put a drain in the hall closer to the shower. They could have had the porters mop the floor more often or had each inmate mop the floor as he finished a shower.

The Claimant testified that in prison he has no choice as to where he lives. He must follow orders. He could not have refused to go to the kitchen through the water when he was so ordered.

The Claimant is a concrete maintenance worker by trade and now that his back hurts he contends that he may not be able to do that work. He believes he should be compensated for his anguish, pain and suffering.

The State’s evidence was that the shower curtains are short for security reasons, so that officials could determine if more than one inmate is in the shower stall. The Claimant partially rebutted this contention by pointing out there is a window for the guard to look into the shower. There is a four-inch curb outside the shower stall which is supposed to keep excess water from going into the inmate cell area.

The Claimant’s medical progress notes in. the departmental report corroborate his testimony. The June 15, 1990, notes indicate “I slipped in the water outside my cell,” and that the Claimant complained of back pain. On June 18, 1990, the Claimant was seen by a nurse and complained of pain and numbness. The Claimant saw the medical staff in regard to his back on August 5, 6 and 18, 1990. On August 18, 1990, he complained the back was affecting his left leg. He again was seen on August 20 and 31 and September 1, 4 and 17, 1990, and complained of lower backaches and back pain. The medical records indicate the CAT scan in September of 1990 and many visits to the medical unit for back pain through the end of 1990. The CAT scan indicated minimal bulging of the disc at L4-L5. There was also moderate herniation of the disc at L5-S1 on the left side. At the end of 1990, the medical records indicated some improvement in the Claimants condition. At the time of the trial, the Claimant s back was much better, though he claimed it still seized up from time to time.

In the present case, the State was responsible for the water being in the hallway and knew of the condition. Even with the security reasons for the short shower curtains, the State had a duty to protect its prison inmates from a dangerous condition known to the State. All of the possible safeguards propounded by the Claimant were reasonable and inexpensive and could have been implemented in some combination to lessen the chance of persons slipping on the wet floor. It was foreseeable that an inmate would slip, fall and injure himself on this wet floor. Therefore, we find that the State was negligent.

The Respondent has raised the issue of contributory negligence in this claim and has cited LeMasters v. State (1981), 35 Ill. Ct. Cl. 90, a prison slip and fall case, for the proposition that the Claimants failure to exercise due care while walking on a wet floor should defeat his claim.

This Court believes that the LeMasters case, supra, represents a precomparative negligence standard, while Conners v. State (1988), 40 Ill. Ct. Cl., represents the application of the comparative negligence standard. The Claimant in Conners, supra, was walking on a wet floor when he fell, and he knew the floor was wet and slippery. In fact, the Claimant in Conners, supra, walked off of a protected area. His negligence was found to be 50% of the proximate cause of the accident.

In this claim, the Claimant was aware of the wet condition, but he had no choice but to walk through it. This Court finds that the Claimant did fail to use due care at the time of his fall, but that his negligence would not be as great a percentage of the total fault as in Conners, supra. We find that the Claimant’s failure to use due care was 25% of the proximate cause of the accident.

The Claimants claim of medical negligence must be denied. There was no proof presented as to the standard of care or that the Respondent deviated from the standard of care. There was no expert testimony presented.

The Claimant’s argument for appointed counsel must also fail as there is no provision in the law for appointed counsel in the Court of Claims. It is also obvious from the record that the Claimant has presented a case worthy of a licensed attorney.

The permanency of the Claimant’s condition and whether it would present a loss of use in future years is speculative. Evidence tends to establish that the Claimant’s condition had improved substantially by the time of trial and the prognosis was good. The Claimant was incapacitated for a period of time and did have pain and suffering and may have some small residual pain in the future. We find that the Claimant suffered damages in the amount of $6,000, which shall be reduced 25% to $4,500 because of the Claimant’s contributory negligence.

It is therefore ordered that the Claimant is awarded the sum of $4,500.


author: Burke, J.

text:
    (No. 91-CC-1131
    Donald Tackett, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 23, 1993.

    Donald Tackett, pro se, for Claimant.
    Roland W. Burris, Attorney General (Diann K. Marsalek, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

On November 8, 1989, Claimant was an inmate at Pontiac Correctional Center. Following a dental examination, it was determined that Claimants third molar, No. 17, should be extracted. The oral surgery was performed by Dr. Frederick Craig, a board-certified oral surgeon. Dr. Craig was assisted by Dr. Jacqueline Mitchell.

Dr. Craig advised Claimant of possible post-surgical complications prior to the surgery, including the possibility of numbness. The location of the tooth required that it be cut and then removed in sections to eliminate pressure and possible fracture of the jaw. The surgery was performed without complication. On the day following surgery, Claimant was unable to open his mouth. Dr. Mitchell advised Claimant that it was a normal side effect of the surgery and prescribed a muscle relaxant, a pain medication and a liquid nutrient.

Twelve days after the surgery, Claimant was examined by Dr. Craig. Claimant complained of numbness to his tongue, sensitivity to hot and cold, and a tingling sensation to his tongue. Dr. Craig advised Claimant that the sensations he was experiencing could be temporary or permanent because the lingual nerve, the nerve through the tongue, may have been affected by the removal of the molar. Dr. Craig stated that the post-operative side effects which Claimant experienced were normal, though not common, complications of the surgery.

The issue before this Court is whether the agents of the State of Illinois were negligent in rendering medical treatment to Claimant. The Respondent has a duty of care with respect to the proper health treatment of inmates in the custody of the Illinois Department of Corrections. The State is required to exercise ordinary and reasonable care for the preservation of a prisoners life and health. (Peters v. State (1987), 40 Ill. Ct. Cl. 152, 153.) Allegations of improper medical care are allegations of medical malpractice and must be proved by expert testimony. (Woods v. State (1985), 38 Ill. Ct. Cl. 9, 26; O’Donnell v. State, 34 Ill. Ct. Cl. 12; Porter v. State (1965), 25 Ill. Ct. Cl. 62.) The Court may not conclude on its own what is or is not appropriate medical care under the circumstances of the case without the aid of expert testimony. Peters v. State (1987), 40 Ill. Ct. Cl. 152, 153-54.

In the instant case, the record does not indicate improper or negligent medical care was afforded to the Claimant other than the conclusions of the Claimant. Claimant failed to offer any expert testimony to support his conclusion that he could have been treated differently or that the post-surgical complications from which he. suffers could have been avoided.

Wherefore, it is hereby ordered that Claimant failed to meet his burden of proof and the instant claim is denied.


author: Patchett, J. Patchett, J.

text:
    (No. 91-CC-1330
    Arthur Nikelly, Claimant, v. The Board of Trustees of the University of Illinois, Respondent.

      Opinion filed December 9, 1992.

      Order filed March 30, 1993.

    Marvin Gerstein, for Claimant.
    Fred Heinrich, for Respondent.
   OPINION

Patchett, J.

This matter comes before the Court upon the motion to dismiss filed by Respondent, and the objections to said motion filed by the Claimant. Claimant filed a tort cause of action alleging intentional interference of contract and intentional infliction of emotional distress in the Sixth Judicial Circuit, Champaign County, Illinois. The act giving rise to the tort cause of action occurred on or before October 9, 1987, and Claimant commenced his action in the circuit court well within the two-year statute of limitations period as required by Ill. Rev. Stat. (1991), ch. 37, par. 439.22(h).

The Circuit Court for the Sixth Judicial District dismissed Claimants cause of action for want of jurisdiction. The Illinois Court of Appeals for the Fourth District upheld the order of the circuit court, and dismissed Claimants complaint for want of jurisdiction on October 25, 1990. During the pendency of this action, the two-year statute of limitations expired on October 9,1989.

It is Claimants contention that under Ill. Rev. Stat. (1991), ch. 110, par. 13 — 217, he had one year from the time of dismissal to file his cause in the Court of Claims.

The facts show that the circuit court of Champaign County dismissed this case involuntarily for want of jurisdiction, and the fourth district affirmed after the statute of limitations expired. Under Ill. Rev. Stat. (1975), ch. 83, par. 24(a), a plaintiff whose suit was dismissed involuntarily could commence a new action within one year of the dismissal order, if the statute expired during the pendency of the suit. The statutory basis under the old statute was the language: “* * ° or, if the Plaintiff has heretofore been suited or shall be non-suited.” The Illinois General Assembly subsequently amended this statute, and excluded from the amendment the language allowing for the refiling of an involuntary dismissal. (Ill. Rev. Stat. (1977), ch. 83, par. 24(a).) Three cases are cited by Claimant, two of which occurred before the change in the statute in 1976. The third case, Edwards v. Safer Foundations, Inc. (1988), 171 Ill. App. 3d 793, 525 N.E.2d 987, adopts the pre-amendment case law in the first district.

In light of the recent supreme court decision in DeClerck v. Simpson (1991), 143 Ill. 2d 489, 577 N.E.2d 767, this Court cannot adopt the rationale of the first district. In DeClerck, the Illinois Supreme Court refused to take an expansive view of section 13—217. They refused to read into the statute an exception for improper venue. This indicates the Illinois Supreme Courts reluctance to extend section 13—217 beyond its statutoiy limits.

This Court reaffirms its holding in Gunderson v. State (1980), 33 Ill. Ct. Cl. 297, that section 13—217 affords protection only to plaintiffs whose lawsuits are voluntarily dismissed. Its protection is unavailable to plaintiffs whose actions are involuntarily dismissed.

Since the statute of limitations expired prior to the time of filing in the Court of Claims, it is the opinion of this Court that under section 13—217 of the Illinois Code of Civil Procedure, Claimants objections to Respondents motion to dismiss are incorrect.

It is hereby ordered that Respondent s motion to dismiss be sustained, and Claimants motion to strike Respondents motion to dismiss be denied. This cause is dismissed.

ORDER

Patchett, J.

This cause comes on for hearing upon the petition for rehearing filed by the Claimant. An opinion was issued on this case on December 9, 1992, dismissing the claim. On January 7, 1993, the Claimant filed a petition for rehearing and a request for oral argument. The Respondent filed an objection to petition for rehearing on January 13,1993.

The Court has carefully reviewed the petition for rehearing and the objection to petition for rehearing. The petition for rehearing cites no new authoriiy or new arguments for the proposition that a rehearing should be granted. It does include arguments that the Courts opinions have somehow denied the Claimant due process, equal protection, or that the Illinois Code of Civil Procedure is unconstitutional.

This Court lacks jurisdiction to rule on the constitutionality of Illinois statutes. In addition, there is no citation of authority to bolster the Claimants position that the prior opinion of this Court somehow violated the Claimants constitutional rights.

Therefore, we see no reason for giving oral argument. We hereby deny the petition for rehearing.


text:
    (No. 91-CC-1755
    Mamie Blakely, Individually and as the Administrator of the Estate of Robert D. Morris, Claimant, v. The State of Illinois, Respondent.

      Order filed June 25, 1993.

    Bresler, Brenner, Moltzen & Harvick, for Claimant.

      Roland W. Burris, Attorney General (Barrington D. Baker, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Frederick, J.

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

The Court finds that the claim herein seeks damages for personal injuries allegedly sustained by Robert Morris during an incident which occurred while he was an inmate at the Joliet Correctional Center in Joliet, Illinois. Based upon this incident, the Claimant alleges wrongful death. According to the Claimants complaint, it was the negligence of the Department of Corrections which caused the plaintiff these alleged injuries. We note that section 25 of the Court of Claims Act (Ill. Rev. Stat. 1989, ch. 37, par. 439.24 — 5) and Rule 6 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) require that any person who files a claim before the Court of Claims shall exhaust all other remedies and sources of recovery whether administrative, legal or equitable.

The leading case regarding the Court of Claims exhaustion of remedies requirement is Doe v. State (1991), 43 Ill. Ct. Cl. 172, which is dispositive of the case at bar. In Doe, claimant, a patient at John J. Madden Health Center, brought suit against the State after she had been sexually assaulted by another Madden patient. The claimant sued the State but did not file an action against her assailant. Accordingly, Respondent moved to dismiss for failure to exhaust remedies pursuant to section 25 of the Court of Claims Act and Rule 6 of the Court of Claims Regulations. This Court, in Doe, followed the reasoning set forth in Boe v. State (1984), 37 Ill. Ct. Cl. 72, where we held that claimants “must exhaust all possible causes of action before seeking final disposition of a case filed in the Court of Claims.” (Emphasis in original.) The language of section 25 and Rule 6 clearly makes the exhaustion of remedies mandatory rather than optional. To quote our prior watershed exhaustion of remedies case, Lyons v. State (1981), 34 Ill. Ct. Cl. 268, we stated:

“The requirement that claimant exhaust all available remedies prior to seeking a determination in this Court is clear and definite in its terms. It is apparent to the Court that claimant had sufficient time to both become aware of his other remedies and to pursue them accordingly. The fact that claimant can no longer pursue those remedies cannot be a defense to the exhaustion requirement. 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. We believe that the language of Section 25 of the Court of Claims Act (cite omitted) and Rule 6 of the Court of Claims quite clearly makes the exhaustion of remedies mandatory rather than optional.” 37 Ill. Ct. Cl. 76; 34 Ill. Ct. Cl. 271-72.

These principles were most recently used in our dismissal of the case of an inmate who had allegedly been attacked by his cellmate. We held that claimant failed to exhaust his remedies by not pursuing a civil action for damages against the assailant. Lutz v. State (1989), 42 Ill. Ct. Cl. 124.

We find as we did in Doe and Lutz, that the instant Claimant had an affirmative duty to exhaust all remedies available before seeking damages in the Court of Claims. Thus the Claimant has failed to comply with section 25 of the Court of Claims Act, supra, and Rule 6 of the Regulations of the Court. Rule 9 of the Court of Claims Regulations provides that failure to comply with the provisions of Rule 6 shall be grounds for dismissal. 74 Ill. Adm. Code 790.90.

In the past we have excluded from section 25 those incidents wherein the other tortfeasor was unknown. However, in the present case, the Claimant specifically names the other alleged tortfeasor and fails to state that a suit for wrongful death was filed against that known tortfeasor.

If there is a known tortfeasor, the claimant must seek his remedy first against that known tortfeasor. The case in the Court of Claims would be placed on general continuance until the State court claim is concluded. The Claimant in this case has failed to follow our precedents and the law.

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