text:
    (No. 89-CC-1501
    Oral Wilcoxen, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 13, 1994.

    Oral Wilcoxen, pro se, for Claimant.
    Roland W. Burris, Attorney General (Terrence T. Rock, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

The Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against the Respondent, State of Illinois, in the sum of $40,000, arising from injuries allegedly sustained by the Claimant when he slipped and fell in the shower at the Graham Correctional Center in Hillsboro. The Claimants complaint alleges that in the morning of May 17, 1988, he left his cell to go to the shower. He attempted to turn the light on in the shower room, but the light would not come on. He alleges that he went to the housing unit control center and told a correctional officer that the light was not working. He contends that he was told by the correctional officer that it was known that the light was not working, but that the Claimant should still use the shower. The Claimant alleges that when he went to the shower, he stepped on a piece of soap, fell and injured his right elbow and back.

At the hearing the Claimant testified that he had just arrived at this cellhouse and had been medicated with a parasite preventative. He had been ordered to take a shower to wash the remnants of that medication off of his body.

The shower room was approximately six feet by five feet with a concrete floor and concrete walls. The floor was level, but there was a berm approximately six inches high that had to be stepped over to get into the shower. Water from the shower flowed up against the berm to prevent flooding. There was a light attached to the ceiling in the shower. The Claimant described the light as being a single bulb sticking out of the ceiling but screwed into an electrical socket.

There was no one in the shower when the Claimant went in. There were others present who had taken showers, and others were apparently waiting to use the shower. When an inmate enters the shower, he has to push a button to start the water running. Hot and cold adjustments of the shower water are done by correctional officers at some other location.

The Claimant estimated that he had used this particular shower approximately 10 times, and had not had difficulty. The Claimant was not in a hurry, but wanted to get the medication off of his body because it was itching.

The switch to the shower room was on the outside of the room, and was operated with a key. The key was like an ordinary house key. It functioned as a dual key to the inmates’ rooms and to turn the shower light on and off. This special kind of switch is found in penitentiaries so that persons cannot turn switches on and off with their fingers. As the Claimant approached the shower, the light was off. The door to the shower was open, and the light in the room was dim, according to the Claimant. The Claimant attempted to turn the light on, but failed. The Claimant “hollered” at the officers, and they heard him because they raised their hands in a salute to indicate that they had heard him. The Claimant testified that the guards told him to go ahead and take a shower.

He stepped over the berm and on to a piece of soap that threw his feet but from under him, and he fell on the concrete. He testified that he hurt his back and his right arm. Other inmates helped him to his bunk.

The Claimant contends that the correctional officers would not send him to seek medical care for a day and a night, and he testified that the next morning he went on sick call and showed his injuries to prison medical personnel. There was swelling, and x-rays were taken of the right elbow, back and head. The Claimant was taken to the doctors in Centraba, and ultimately underwent surgery on two separate occasions.

The Claimant was a sixty-year-old man who had spent most of his adult life as an inmate with the Illinois Department of Corrections. He contended that his back and right arm bothered him, and that his right arm was hurting during the hearing. He described the pain as “stinging.” He testified that he had headaches all the time, and had been treated for the headaches with Anacin and Motrin.

The Claimant contended that prior to the injury, he could lift, but he couldn’t lift at the time of the hearing. He used to drive trucks but he cannot drive trucks now because it involves sitting straight all the time. The Claimant did not believe he could work in sheet metal as he had in the past. His right arm had not been injured prior to this incident, and he had had no back injuries before this incident. The Claimant contends that the headaches he has had since the injury were greater than those he had experienced prior to the injury.

The Claimant stated that on past occasions when he had taken a shower, the shower room floor was normally wet. He had seen small pieces of soap on the floor previously. The Claimant stated that as he approached the shower room, he did not look at the floor. He stepped over the berm or curbing at the entrance to the shower room, and when he put his weight down he fell. The Claimant states that he was shown the piece of soap he fell on, and it was approximately 2 inches long and half an inch thick.

William A. Whitley was called by the Respondent as a witness for the State. Whitley is the maintenance supervisor at the institution in question. He testified that light bulbs that expire are repaired through a work order. Whitley stated that he reviewed the work orders for the month of May, 1988. Whitley testified that he had no work order for a burned out light bulb in a shower from May 15, 1988, through May 21, 1988, when asked that question by the Commissioner. Whitley testified that he could not say whether there were light bulbs burned out in the shower on the day in question.

Under questioning by the Commissioner, Whitley testified that it is not unusual for it to take five days to replace a burned out light bulb after a work order. Whitley testified that it was possible for a light bulb to go out on the eighteenth or nineteenth of May that would not be repaired until the twenty-fifth. Usually work orders are dated on the day that they are sent in. Sometimes the work orders do not bear a date. Whitley did not know how long it took work orders to get to him. When Whitley receives a work order to replace a bulb with no date, he does not know how long the light bulb had been out.

Whitley testified that all light bulbs in the shower rooms have a protective cover. Under the cover there is a single light bulb. Work orders must be utilized to change defective light bulbs. Guards are not allowed to “mess” with any of the electrical or maintenance needs of the institution. The covers on the lights in the showers can only be removed through the use of special equipment.

Correctional officer Matthew Wells was called and testified on behalf of the Respondent. Wells did not remember any incident where the Claimant claimed to have been hurt falling down in the shower. The witness testified concerning the degree of light that exists in the shower rooms. There was a window in the shower room. The witness stated that, in his opinion, there was definitely sufficient light to take a shower because “there is as much light in that shower with the light off as there is in the shower in my house at home.” Photographs marked as exhibits 1, 2 and 3, were identified, marked and admitted into evidence showing the hallway and different views of the shower room or a shower similar to the one in which the Claimant contended he was injured; but there was no indication whether the light was on or off in these photos.

On cross examination by the Claimant, Officer Wells testified that he did not remember refusing a request by the Claimant to take the Claimant to the hospital. Officer Wells did not recall the Claimant ever complaining of having been injured. Officer Wells stated that it was the policy of correctional officers, when medical attention is requested, to allow the inmate to declare a “medical emergency.” If the inmate elects to declare a “medical emergency” and this is not confirmed by medical staff, then the inmate will receive disciplinary action initiated by the medical staff. Wells testified this is the procedure he would have followed had the Claimant requested medical assistance and been willing to declare a “medical emergency.” Also, if an inmate stated that he was injured an incident report would have been made.

During the testimony of Officer Wells, it was noted that an order had been entered by the Commissioner against the Respondent to comply with a request to produce. It was further noted that the response to the request to produce did not contain a single incident report or any indication that the incident alleged by the Claimant ever occurred.

Briefs were not submitted by either party.

Though there was some confusion by the Claimant as to the date of the injury, the complaint and the testimony indicate that the Claimant was injured on the seventeenth of May. In his deposition, he stated that he was injured on the nineteenth of May — a date which he said was mistaken when he testified at his hearing.

The Department Report states that the Claimant was received at Hillsboro on May 18, and the Medical Report indicates the Claimant underwent reception lab work by the nurses on May 18. Notations on the medical notes from May 18 include “Rt. forearm.” The Claimants complaint indicates that he was injured on the seventeenth but continued to ask for treatment until the twenty-first, when he was seen. In his testimony, the Claimant said that he had medical treatment the day after the injury.

Institutional medical records submitted as a part of the departmental report indicate that on May 21, 1988, the Claimant presented himself complaining that he fell down “on the ground” and injured his elbow. The medical records are hard to interpret, but it appears that the Claimants right arm was diagnosed as having an infected wound at the right elbow with swelling. It further appears that on May 24, 1988, that x-rays were taken of the elbow which was then acutely swollen due to an acute infection of the wound and bursitis of the right elbow. On May 26, 1988, a complaint of vertigo was noted. On May 27, 1988, the medical record showed that the Claimant returned from St. Marys Hospital with his right elbow in a sling, after having arthroscopic surgery the day before. On May 31, 1988, the medical record speaks to an elbow abscess with minimal drainage. On June 13, 1988, he had a debridement of scar tissue at St. Marys Hospital. On July 22, 1988, his elbow was said to be healing well. No history, surgical notes, or hospital records were a part of the States answer to production or contained in the department report. The department report reflects a total absence of “incident reports.”

The Respondent offered no other evidence. Neither party filed a brief.

The Claimant s theory of liability is based on the facts as recalled by the Claimant. The Claimant testified that he was seriously injured because of the lack of light in the shower. He contended that he sustained injuries to his right arm, his back, his head, was knocked unconscious, and had to be assisted by other inmates back to his cell or room. The Claimant contended that when he was first able to do so, he requested medical assistance which was initially, arbitrarily denied by Officer Wells. Wells testified emphatically that any inmate requesting medical treatment had to be given the option of declaring a medical emergency. In that event, Wells testified emphatically that he would have seen to it that the Claimant was delivered to medical personnel at the institution immediately. Apparently the Claimant did not wish to declare a medical emergency, and he stated that he waited until the following day before he was given any medical attention. Although the medical records submitted by the State in its departmental report are scant, it clearly appeared that the condition for which the Claimant s elbow was treated was an abscess resulting from what was believed to be an infected wound. The abscess was subsequently drained and repaired through two separate surgical procedures. The scant medical notes reflect that the Claimants histoiy was that he had fallen to the ground, and he did complain of vertigo on May 26,1988.

There appear to be no incident reports, inmate injury reports, investigation reports, results of grievance procedures, or any other documentation tending to either substantiate or refute the Claimants testimony.

The Claimant testified there was a bare light bulb protruding from the ceiling of the shower. The maintenance engineer testified that this would definitely not be allowed to occur, and that all the shower lights were covered by protective covers that could be removed only with special equipment.

The Claimant testified that the light from outside the shower and through the small window provided little lumination, but he could dimly see the shower apparatus. Officer Wells testified that the light from outside the shower and the shower room window provided as much light as he had in his shower at home, and that there was enough light to see to take a shower.

The Claimant contended that he sustained back injuries and has had problems with unusually severe headaches since his injury was sustained. The medical records do not reflect complaints of back pain or headache pain relative to the onset of the Claimant’s complaints.

The Claimant had spent most of his adult life as an inmate, and knew the system. Officer Wells was emphatic in his testimony that he would have permitted the Claimant to obtain immediate medical treatment had the Claimant opted to declare a medical emergency. The risk to an inmate in declaring a medical emergency is that if he attends the medical unit and the medical personnel determine that the need for medical assistance was not “an emergency” a disciplinary ticket would be generated. The Claimant contended that despite serious injuries, he was simply refused medical attention.

The Claimant, additionally, made conflicting statements as to the date he was injured and how many days he went without treatment. The departmental report indicated that the Claimant arrived on May 18, though the Claimant states he was injured on May 17. Interpreting the matter in favor of the Claimant, it is possible he arrived on May 17. He stated that he went on sick call the next day, but the departmental reports and medical reports indicate that he had reception lab work by the nurses that day, which is given to all new arrivals. The report of this lab work has the cryptic note “Rt. forearm,” with no mention of treatment. No injury was noted to the Claimants elbow.

The Claimants elbow did not become an issue until May 21 when he reported that he fell on the ground and was diagnosed as having an infected wound in the elbow. He was then observed not to be in distress or pain. The presence of swelling was noted. Acute swelling was noted on May 24. The Claimant testified to acute swelling the day after his fall when he went on sick call.

There is no independent evidence that the Claimant was injured as indicated. There were no incident reports or other internal documentation of the fall. Officer Wells remembered nothing of the sort. There was no work order for the shower light readily evident, and there was conflicting evidence as to whether there would be sufficient light in the shower if the bulb was burnt out.

The many conflicts in the Claimants testimony and pleadings as to when he was injured and when he obtained medical care, coupled with there being no independent evidence of the Claimants alleged fall or of the circumstances he states, compels this Court to find that the Claimant has not proven his case.

Under the law, the Claimant bears the burden of proof. He is required to offer testimony and other evidence that would tend to prove his theory of recovery by the preponderance of the evidence. We find that the Claimant has not proven his case by the preponderance of the evidence. Accordingly, it is the ruling of this Court that this claim is denied.


source: Caselaw Access Project

author: Sommer, J.

license: Public Domain

text:
    (No. 89-CC-1874
    Silverio Rodriguez, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 21, 1994.

    Silverio Rodriguez, pro se, for Claimant.
    Roland W. Rurris, Attorney General (Christopher K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

The Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against the Respondent, State of Illinois, for injuries sustained by the Claimant in a fall at the Danville Correctional Center on November 17, 1988. The Claimant’s complaint alleges that at approximately 7:30 p.m., on the date in question, he was walking into the lower level of a shower area when he slipped on a puddle of water that had leaked from the upstairs shower. The Claimant contends that the water should have been cleaned up, but was not. He alleges that he hit the window leading to the control hub with his head resulting in “busting the right side of my head.”

The Claimant contends that the wound in his head was sutured with seven stitches. He seeks damages against the Respondent in the sum of $100,000.

At the hearing, the Claimant testified, through an interpreter, that on the date in question, he was walking in the lower level of the shower area outside of the shower. He testified that he slipped on a puddle of water that leaked from the upstairs shower. The Claimant testified that the “puddle” should have been cleaned up, but was not. He testified that he struck his head on the ground, despite the fact that in his complaint he alleged that his head struck the window leading to the control hub. At the hearing, the Claimant indicated that he had been injured on the upper portion of his forehead above the outer aspect of his right eye. He contended at the time of the hearing that he gets “dizzy” and can’t see well from his right eye.

In further testimony, the Claimant contended that the water on the floor was hard to see because the floor was waxed and shined, and that you “can barely see the water on the ground.” The Claimant was a porter and had cleaned up water in the same area before “as a porter.” He testified that there had been leaking in this location for four months and “the guy had to clean it,” and that the Administration was supposed to fix the leak.

The Claimant received medical attention consisting of the suturing of the wound and was sent back to his cell. The Claimant contends his skull was fractured but denies that any x-rays were taken. The Claimant stated that he took Tylenol as a result of problems with the injury, but he was not given any other medication.

The Claimant testified that he had not complained to a doctor at the Hardin County Work Camp because “before we see a doctor here, we have to be almost half way dead.” He had been at Hardin County eight months. He denied having headaches or getting dizzy before the injury.

The Claimant admitted that he was wearing “shower shoes” at the time of his fall. He had acquired the shower shoes at the commissaiy. He was in the process of washing his “hot pot” at a sink near the shower on the lower level when he slipped. He testified that there was water on the floor everywhere because people came out of the shower and were tracking water onto the floor. The Claimant testified he knew there was a leak and the water was coming down because he was the porter in that area, although he couldn’t see the water because the wax made the floor shine.

Although the Claimant testified that the moisture on the floor in the area of the sink and shower was difficult to see, he readily admits being aware of a water problem in the area for four months. Indeed, the Claimant testified he was a porter in the area and had been required to clean water in the area where he fell. This Court has pointed to the factor of concealment or lack of knowledge in slip and fall cases as being an important element of proof. For example, in Double v. State (1967), 26 Ill. Ct. Cl. 87, 91, this Court indicated that recovery could not be had in a slip and fall situation if the danger was, or should have been, apparent to the Claimant. As in the Double case, there is no proof in this case that the wet or damp condition of the floor was in any way concealed from the Claimant; and, indeed, the evidence strongly suggests that the Claimant was well aware of a water problem in the area where the fall occurred. Further, there is evidence that porters, including the Claimant, had been assigned to this area for purposes at least in part, to remove water from the surface of the floor. He had himself performed that task.

It is the finding of this Court that though a dangerous condition existed and the State was aware of it, the Claimant was also aware of the condition and had a duty to proceed with due care. We find that the slip and fall was more than 50% the fault of the Claimant due to his special awareness of the situation. As the Claimants negligence was more than 50% responsible for the accident, he may not recover. (735 ILCS 5/2 — 1116.) It is therefore the order of this Court that this claim is denied.


author: Sommer, G.J.

text:
    (No. 89-CC-2449
    Andray DeWalt, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 29, 1994.

    Andray DeWalt, pro se, for Claimant.
    Roland W. Burris, Attorney General (Mary Elise Walden, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, G.J.

On February 6, 1989, the Claimant, Andray DeWalt, filed a complaint seeking compensatory damages for an alleged injury sustained in a fall at the Centraba Correctional Center.

On November 24, 1988, Andray DeWalt entered the premises of the Centraba Correctional Center to visit her brother, Willie Dantzler. At approximately 2:00 p.m., during DeWalt s visit, she went to a change machine.

Near the machine was a guards platform with a desk, a chair, and a guard on top of it. There was one step approximately 8 inches high, 11 inches deep, leading to the platform, and the platform itself was visible. DeWalt testified that when she approached the change machine, “somehow or another * # * tripped up this step and fell back behind the platform.” DeWalt stated that her brother helped her after the fall. DeWalt continued her visit with her brother, and at approximately 4:00 p.m., DeWalt spoke with the Centralia Correctional Center officer, John Rolf. At this time, an incident report was filled out by Rolf. DeWalt left the Centralia Correctional Center at approximately 4:30 p.m.

The State is not an insurer required to pay for all accidents that occur on its premises, rather the State must be found negligent. (Gillmore v. State (1986), 40 Ill. Ct. Cl. 85.) To recover upon a negligence theory, the Claimant must prove by a preponderance of the evidence that the State has breached its duty of reasonable care, that the breach is the proximate cause of the Claimants injuries and that the Claimant was injured as a result of said negligence. (Acme Carrier, Inc. v. State (1977), 32 Ill. Ct. Cl. 83.) The Claimant must establish the State had actual or constructive notice of the alleged defect before recovery is allowed. Hitt v. State (1982), 35 Ill. Ct. Cl. 798; Becker v. State (1983), 35 Ill. Ct. Cl. 704.

The Claimant was legally on the premises, therefore, the State owed a duty of reasonable care and caution in keeping the premises reasonably safe for use by such persons, including the duty to exercise reasonable care in discovering defects or dangerous conditions existing on the premises. Owens v. State (1989), 41 Ill. Ct. Cl. 109.

before the State can be held liable for injuries caused by an alleged defective condition, there must be evidence showing the unsafe condition existed and that the State had notice of that condition. Pigott v. State (1968), 26 Ill. Ct. Cl. 2521; Moore v. State (1991), 43 Ill. Ct. Cl. 204, 205.

The Claimant testified that the guard platform was large enough to hold a desk, that the step up to the platform was approximately 8 inches high and 11 inches deep, and that the platform was visible. The Claimant did not establish that the placement of the guard platform was unsafe. In fact, the Claimant stated that “somehow or another, I tripped up this step,” unaware of how or why she fell. There is no hidden defect that would make this platform unsafe. There is no evidence showing an unsafe condition existed.

Further, there appears to be no apparent danger that would give the State actual notice of an unsafe condition, nor was there evidence of a hidden defect that could have been discovered by reasonable care, so as to put the State on constructive notice.

The Claimant failed to establish by a preponderance of the evidence that an unsafe condition existed, that the State had notice of an unsafe condition, or that the State breached its duty of reasonable care to the Claimant.

Further, the Claimant has failed to establish that her alleged injuries were caused by the fall at the Centralia Correctional Center.

Generally, when proving a prima facie case of proximate cause in a negligence action alleging personal injuries, medical testimony is not required when there is a causal connection between the Respondent’s act or omission and the injuries sustained by the Claimant. (Harris v. Day (1983), 115 Ill. App. 3d 762, 770.) The causal connection, however, must be clearly apparent from the injuries and the circumstances attending them. Id.

It is unclear as to what, if any, injuries the Claimant sustained. The Claimant testified that she went to the Gateway Community Hospital in Centralia, Illinois and the Bonita Chiropractic in California. The Claimant testitied only that she had problems with her neck, back and knee.

The alleged injuries do not create a clearly apparent causal connection with the placement of the guard platform or the Claimants fall near the platform.

“Where the injury complained of is remote in time from the accident or the condition is one that is shrouded in controversy as to origin ° ° ° layman testimony may be insufficient to establish a prima facie showing of a causal relationship.” Harris v. Day (1983), 115 Ill. App. 3d at 770; Hyatt v. Cox (1965), 57 Ill. App. 3d 293, 299.

The Claimant failed to establish a connection, let alone a causal connection between her alleged injuries and the States maintenance of the Centraba Correctional Center visiting room. The Claimant was the only witness who testified at the evidentiary hearing. No medical evidence as to her injuries was produced. Medical evidence of causation was necessary in the Claimants case.

The guard platform was large, apparent to the naked eye and not a hidden defect. The Claimant failed to use reasonable care so as not to injure herself on the readily apparent guard platform.

The Claimant has failed to prove by a preponderance of the evidence, any of the elements needed to recover upon a negligence theory. The Claimant has not shown a breach of duty, that a breach of such duty was the proximate cause of her injuries, and that she in fact had injuries caused by the incident complained of. For these reasons, the Claimants claim is denied and dismissed.


author: Frederick, J.

text:
    (No. 89-CC-3635
    Donald Sickles, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 13, 1994.

    Appleton & McHugh (Gregory J. McHugh, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Christopher K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant filed his complaint in the Court of Claims on June 2, 1989, seeking damages for alleged damage to a well of Claimant by the Illinois Department of Transportation during the construction of Highway 34. The case was tried before the Commissioner assigned to the case.

Claimant, Donald Sickles, is a farm owner, possessing land in Warren County, Illinois, approximately one mile from Monmouth, Illinois. Claimant has owned the land which is the subject of this litigation since 1972. At the time of purchase, Claimant testified that the land contained four working wells.

In 1976, the Respondent, through the State of Illinois Department of Transportation, entered into negotiations to purchase a right-of-way for road project 404 from Claimant. The completed project is now known as Highway 34. The road project encompassed land contained within the boundaries of that owned by Claimant. Claimants land is both north and south of the highway project. On April 9, 1976, negotiations were completed between Claimant and Respondent after which both parties entered into a contract for warranty deed and temporary easement. The negotiated price was $33,500 for the easement. The parties signed the agreement. Among the terms of the “Receipt for Warranty Deed and Temporary Easement” was incorporated the language which gives rise to this claim, “In the event that the well adjacent to the ROW (right-of-way) is adversely affected during or as a result of construction damages will be paid for same by the department.” This language was incorporated into the agreement because Mr. Sickles had concerns his well might be damaged as it was close to the construction. The allegedly damaged well, referred to as well number 2 by the parties, is approximately 36 feet off the right-of-way purchased by the State.

Claimant testified to the existence of two distinct wells contemplated by the contract. These wells were most likely developed when coal miners lived in the area. Well number 2 allegedly fell within the actual area under construction and was lost to construction, according to Claimant. Illinois Department of Transportation Cite Engineer David Clark was in charge of this section of construction. Mr. Clark oversaw construction in the area. The area where well number 1 allegedly existed was given close work and attention because of old tires and debris in the vicinity. This work was done by bulldozers. According to Mr. Clark, no well was ever encountered in the right-of-way over which the highway now runs. Mr. Clark testified that had a well been located in the highway’s right-of-way, it would have been brought to his attention so that special construction precautions could be taken. Mr. Clark also testified that the excavation of earth in that area was completed between July and October, 1984.

According to Claimant, well number 1 was a main well with good water that Claimant used for spraying on the farm. It was a stone well over 25 feet deep. Well number 2 was stone but not as deep. Construction of the road started in the late 1970s and into the 1980s. Claimant testified that when well number 2 was covered over by the road that well number 2 almost immediately lost its water. He testified that prior to construction the well always had water but afterwards it was dry.

Gordon Benson also testified for the Respondent. Mr. Benson was a former I.D.O.T. employee, having retired in 1983. Mr. Benson testified that he had begun his I.D.O.T. employment as an assistant to the district soils engineer, later becoming foundation engineer and chairman of the State Soils Committee. He incorporated his background education in geology and worked on related problems in various I.D.O.T. districts. In regard to his knowledge of wells, witness Benson testified that he had done considerable work on problems of seepage and internal drainage and had personally inspected well number 2.

Mr. Benson indicated that well number 2 was approximately 36 inches in diameter and measured 12 feet deep. The well was located on a ridge and was hand dug and hand laid with limestone. The well was not covered which could allow an accumulation of foreign material resulting in the well becoming shallow to the point of being above the water table. Mr. Benson indicated that he believed the well to be approximately 90 years old and long abandoned when he observed the well.

Prior to construction, I.D.O.T. generated a cross section survey of the land in question. The cross section established a centerline for the survey along the area that was relevant in the building of the improvement. The cross sections represent a vertical slice down through the ground extending to either side of the center line of the survey. The cross section shows the character of the ground in a traverse direction to the roadway, demonstrating what the surface of the ground looked like along the centerline of the roadway surveyed. Mr. Benson testified to the approximate location of well number 2 and indicated no earth was moved within 80 feet of the well.

The centerline profile is a soil survey. The centerline profile indicates that holes were made at intervals of 100 feet alternating from the left to the right of the proposed centerline with each hole approximately 44 feet out from the centerline. These borings extend well below the depth of the improvement to see what types of soils will serve as the foundation for the roadway. The ground water level at the approximate site of the Claimants well in 1975 was 714 feet above sea level. The bottom of the Claimant’s well did not extend below 729 feet above sea level. These measurements were made in 1975 when the area had experienced an excessively wet period. Mr. Benson testified that an excessive amount of precipitation would affect ground water levels by raising the water table.

Alternatively in 1987, the approximate time Claimant’s well was alleged to have dried up, the Monmouth area was approximately 10 inches below the average annual precipitation level. Mr. Benson testified that the lack of precipitation very definitely could cause a well to go dry. Mr. Benson also testified that the ground water could once again be reached by merely digging a 20-foot-deep well.

Claimant called as his witness water driller Roger Acker. Mr. Acker testified that he personally inspected well number 2. The well appeared to be approximately 15 feet deep containing roughly 2-3 feet of water on the date of inspection. Mr. Acker testified that it was “possible” that cutting the angle of the hill down could have disturbed the natural water flow, but he had no knowledge of the land prior to the excavations. Mr. Acker also acknowledged that he was merely stating a general principle, that excavation resulted in a change in water flow. Mr. Acker indicated that the well was hand dug and fed by ground water, very possibly percolating from the north from a vein of sand. He also testified that in 1988 he experienced an increase in his local well-digging business as a result of drought. However, Mr. Acker testified that it is more likely true than not that well number 1 and well number 2 were connected by the water table.

As a replacement for the allegedly damaged 15-foot-deep well number 2, Mr. Acker proposed drilling a 200-foot-deep well at $15 per foot and attaching a pump for $1,350. This proposed well could produce 8-10 gallons of water per minute. Well number 2 had previously been used only sparingly for water to mix with chemicals and spray on crops or for providing Claimants cattle with a secondary source of water when an adjacent creek went dry. Mr. Acker testified that a decrease in rainfall will often cause more shallow wells to go dry.

The evidence is clear that prior to the construction of Highway 34, Claimant had a working well on his land, known as well number 2. Claimant was concerned enough about the proximity of this well to the construction project that he asked for and received contract language drafted by Respondent that stated if the well is adversely affected during or as a result of construction, damages would be paid for same by Respondent.

The issue in the case is whether well number 2 was adversely affected during or as a result of construction. While there are questions about the existence of well number 1, there is no question concerning the existence of well number 2. There is also no question that well number 2 had water in it prior to the construction and during the construction was adversely affected by going dry. We find that it is more probable than not that the damage was caused by the construction and resulting change in the land than by a drought or because of the natural water table. The broad contract language allows for a recovery by Claimant as this language must be construed least favorably to the Respondent as they drafted the contract. McDonnell-Douglas Automation v. State (1983), 36 Ill. Ct. Cl. 46.

The issue of damages, however, is not as clear. Well number 2 was a 15-foot hole and only provided a small amount of water for limited agricultural purposes. The damages to this very old well are not properly measured by paying for a 200-foot well requiring a $1,350 or more pump. Mr. Benson testified ground water could be reached by digging down 20 feet. Such a remedy of finding ground water would put this well in the same condition it was in prior to the construction. By using the formula of Mr. Acker and giving some leeway for the time that has passed since the well went dry and the need to dig deeper than 20 feet, we would believe that an award of $640 is appropriate under the facts of this case.

Based on the foregoing, Claimant, Donald Sickles, is hereby awarded the sum of $640 in full satisfaction of his claim.


text:
    (No. 89-CC-3755
    Keith J. Sennstrom, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 27, 1993.

    Keith J. Sennstrom, pro se, for Claimant.
    Roland W. Burris, Attorney General (Cynthia Wood, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Keith J. Sennstrom, brought this claim before the Court of Claims seeking recovery for $1,200 of services he allegedly rendered to the Respondent. Claimant alleged that the Department of Conservation refused to pay him on the grounds that funds appropriated for such payments had lapsed. A hearing was held on June 16, 1992, before the Commissioner assigned to the case, for which there is no transcript, the parties having agreed to waive the need of a transcript.

Claimant testified that an individual named John Brooks operated a hotel and restaurant concession at Illinois Beach State Park in Zion, Illinois. The concession was granted from the State of Illinois by agreement with Brooke Inns of Lake Forest. Claimant was the general manager for Brooke Inns, the concessionaire. The concessionaire ultimately filed for bankruptcy and went out of business.

Subsequent to the closing of the concessionaire’s business, Claimant testified that he had a conversation with Bob Grosso, the site superintendent for the Illinois Department of Conservation, wherein Mr. Grosso agreed to pay him $10 an hour to help clean up the premises and wrap up the business affairs. Claimant moved into the hotel to help protect it from vandalism and to be available to meet with potential tenants or concessionaires. Claimant did not establish the exact nature or the extent of the work that he performed.

Claimant stated that he worked from January 3, 1988, through February 11,1988, for a total of 120 hours. Claimant testified that on February 12, 1988, Bob Grosso told Claimant that a check would be forwarded to him.

Claimant presented one document, which was admitted into the record. Claimant’s exhibit is a handwritten note to Claimant from Bob Grosso stating that “the only way to resolve [the dispute] is through the Court of Claims.”

On cross-examination, Claimant stated that he did not enter into a written contract with Bob Grosso or the State of Illinois. Claimant agreed that he did not receive any document that would indicate that he was an employee of the State and had not received any checks from the State.

At the hearing, Respondent presented two documents, which were admitted into the record. One document is a March 6, 1991, memorandum from Bob Grosso, wherein he opined that Claimant, “® 6 * remained after the bankruptcy ® ° ® to represent the interests of John Brooks.”

The Claimant seeks recovery on the basis of an oral contract of employment, or in the alternative, on the basis of quantum meruit.

For the Claimant to prevail on a contract theory, he must first prove the existence of a contract of employment. (Dilbeck v. State (1990), 42 Ill. Ct. Cl. 222.) In the case at bar, as in Dilbeck, supra, Claimant has presented no competent evidence to establish an employment contract, oral or written. If Claimant had been employed, at the very least a W-4 form would have been filled out. No W-4 form was presented in evidence. Claimant also failed to prove that authority existed for Mr. Grosso to employ Claimant for the State. Claimant also failed to prove the nature and extent of the work he was to perform. The State has denied a contract of employment with Claimant. Based on the authority of Dilbeck v. State, supra, Claimants claim of an enforceable oral contract must fail.

Claimants claim in quantum meruit must also fail as this Court has steadfastly recognized it does not have equitable jurisdiction. Ward v. State (1981), 35 Ill. Ct. Cl. 398; Melvin v. State (1989), 41 Ill. Ct. Cl. 88.

This may seem to be a harsh result for Claimant but it is the correct result. Claimant failed to meet his burden of proving an enforceable oral contract of employment. Those dealing with the State are presumed to know the law and deal with the State at their own peril. Potter v. State (1983), 36 Ill. Ct. Cl. 26.

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


author: Sommer, C.J.

text:
    (No. 90-CC-0741
    Glenn Smith, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 21, 1994.

    Glenn Smith, pro se, for Claimant.
    Roland W. Burris, Attorney General (Verne E. Denting, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

The Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against the Respondent, State of Illinois, in the sum of $40.60 for the value of a Panasonic radio which the Claimant contends was lost or converted through the fault or neglect of the State of Illinois. The Claimants complaint alleges that on January 26, 1989, he was possessed of the radio. On that date, he was transferred from the Illinois State Penitentiary at Joliet to the Illinois State Penitentiary at Pontiac. Thereafter, the Claimant alleges that the Respondents agent advised him that his property had been stolen from the personal property room, and could not be returned to him.

At the hearing, the Claimant testified that he had purchased the radio for $40.65 at Stateville Correctional Center, and that it could be expected to last four or five years. The radio was successfully transferred because the Claimant testified that he saw the radio after arriving at Joliet. The radio was taken from his possession at Joliet due to disciplinary problems. As a result of the Claimants grievance, he was reimbursed the sum of $27.20 by the Respondent in spite of the fact that the Claimant had paid $40.65 for the radio. Upon hearing, the Claimant moved that his claim should be reduced to the sum of $13.40 due to the States reimbursement of the Claimant in the amount of $27.20.

Upon cross-examination it was determined that at the time of the loss, the radio was approximately 12 months old, having been purchased in June of 1988. The Claimant testified that the estimated useful life of the radio was three to four years or possibly longer. The Claimant testified that in the five years preceding the hearing he had purchased three or four radios. The Claimant admitted that the State had apparently computed the amount of his damages by depreciating the value of the radio approximately 33 1/3%.

It appears, from the evidence at the hearing, that the Claimant has been compensated for the loss sustained by him through the voluntary action of the Respondent. The useful life of the radio is admitted to be three to five years. The Respondent paid the Claimant two-thirds of the purchase price of the radio.

This Court has previously ruled that some reasonable depreciation may be taken into account when considering the value of lost property of inmates. (Hamilton v. State (1993), 45 Ill. Ct. Cl. 324.) This depreciation depends upon the circumstances of the claim and should not be confiscatory. (Seats v. State (1993), 46 Ill. Ct. Cl. 418.) We find in this claim that the depreciation assigned by the department was reasonable and not confiscatory.

Accordingly, it is the judgment of this Court that this claim be denied.


author: JANN, J.

text:
    (No. 90-CC-0989
    Herman L. Johnson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 7, 1994.

    Hamm & Hanna (Ronald Hanna, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Robin L. Schmidt, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

A hearing was conducted by Commissioner Parsons on the above-captioned matter on February 10, 1993, in Peoria, Illinois. Case No. 90-CC-2825, titled Trinity Insurance Subrogee of Herman L. Johnson v. State was previously consolidated into this cause.

This case arises from an accident which occurred on August 2, 1989, on Route 24 in Peoria County, Illinois. Claimant was driving a 1988 Honda automobile when a grain auger being towed by a Department of Conservation vehicle broke loose from its hitch and struck Claimants windshield. Claimant suffered injuries to his wrist, thigh, neck and back and substantial property damage to his auto.

Two stipulations were introduced into evidence at trial. The first was a letter from Assistant Attorney General Robin L. Schmidt to Mr. Lawrence Newman, representative of Trinity Insurance Co., the insurer of Claimant’s auto. The letter confirms that the State will pay property damages to the insurer in the amount of $7,037.43. The second stipulation, signed by the parties, states that Respondent admits liability in the case and that Claimant has incurred the following damages:

Fulton County Ambulance $ 240.00

St. Francis Medical Center 548.40

Western Avenue Clinic 1,483.00

Central Neurological Services 325.00

$2,596.40

Insurance Deductible 250.00

Car Rental 783.20

Lost Wages 1,400.00

$2,433.20

Claimant testified as to the facts of the accident, his injuries, treatment and lost earnings. The discovery deposition of Dr. Ronald L. Smith, Claimant’s treating physician, was admitted into evidence by stipulation of the parties. The Assistant Attorney General raised objections to the stipulation made by her predecessor assigned to the case. We find the stipulation by Respondents counsel that Dr. Smiths deposition be admitted without previous objection acted as a waiver of any objection to the evidence contained therein at trial. (See Gomez v. Resolute Insurance Co. (1971), 2 Ill. App. 3d 180, 257 N.E.2d 69.) The stipulation by the parties that this cause be submitted on the issue of damages only estops either party from arguing issues of whether evidence was properly admitted. The stipulated admission of Dr. Smiths deposition does not establish the weight to be afforded the evidence. LaRenta v. Mutual Trust Life Insurance Co. (1955), 4 Ill. App. 2d 60, 123 N.E.2d 165.

The evidence indicates that Claimant suffered injuries requiring significant medical care. He was under doctors care for over three months. Claimant testified that he continues to have pain in his neck, back and wrist. He further stated that he cannot perform certain tasks of daily life and in his occupation as an operating engineer as well as he could before the injury. Claimants joint instability and degenerative spinal condition were exacerbated by the injury. He exhibits a loss of dexterity and agility and decreased strength and stamina in his daily activities.

Based upon the foregoing, we hereby award Claimant Herman Johnson $2,596.40 in medical expenses, $2,433.20 for lost wages, auto rental and insurance deductible and $25,000 for pain and suffering and potential future medical expenses. Claimants total award is $30,029.60.

Claimant Trinity Insurance is hereby awarded $7,037.43 in property damage pursuant to the stipulation previously referenced herein.


author: Patchett, J.

text:
    (No. 90-CC-2426
    Todd Andrew Schmiedl, Claimant, v. The Board of Trustees of the University of Illinois, Respondent.

      Opinion filed June 23, 1994.

    Pelini & Sheffler (Gregory E. Pelini, of counsel), for Claimant.
    Thomas, Mamer & Haughery (William Brink-MANN, of counsel), for Respondent.
   OPINION

Patchett, J.

As a result of an automobile accident in 1980 in which he sustained serious, head and other injuries, the Claimant, Todd Andrew Schmiedl, hereinafter referred to as “Todd,” is a quadriplegic. For about a year following the accident, Todd experienced hallucinations which he was advised might be the result of seizure activity. He took seizure medication. Todd cannot walk, has very little use of his hands and arms, and is confined to a wheelchair. He sits in a peculiar manner as a result of the specific nature of his injuries, and his upper body is unstable because of a tendency to sway or lean forward. Quadriplegics continuously shift their weight in order to prevent skin breakdown. The only way Todd can do this is to lean forward. Occasionally he will lean too far and is unstable to right himself. The leaning could cause a muscle spasm to intensify. Patricia Joseph, the attending nurse at the Beckwith Living Center, hereinafter referred to as “Beck-with,” indicated that both she and the aides at Beckwith were aware of Todds instability. Todd also suffers from chronic spasticity. When Todd suffers muscle spasms, only one part of his body is affected, such as his foot or head, and the spasms do not radiate to other parts of his body. Todds spasms are fairly regular and mild. Patricia Joseph indicated that when Todd experienced a muscle spasm — which she characterized as a “fine shake, a fine tremor” — it was his habit to shift his weight and lean forward.

In April 1989, Todd was a junior majoring in psychology at the Urbana-Champaign campus of the University of Illinois. He resided at Beckwith, a university-affiliated residence hall. Beckwith houses disabled students and hires live-in, non-skilled aides who attend to the needs of the residents. An in-house nurse is also available. In April 1989, the in-house nurse was Patricia Joseph. The rooms at Beckwith are single occupancy and similar to regular dormitory rooms. The exception is that adjoining rooms share an intervening bathroom. Beckwith provides shower chairs for disabled residents to take showers. A shower chair is similar to a regular wheelchair; however, it is smaller and less bulky. A person has less mobility and stability in a shower chair. Shower chairs are not electrically powered and contain hand rests on the back for manual pushing. While they have foot rests, they do not have straps or restraints. At Beckwith these chairs are left in the hallway for use by anyone. Beckwith did not provide any specific training to aides with regard to the use of shower chairs.

The live-in aides, usually pre-med or medical students, receive free room and board. They assist disabled residents in daily activities, such as dressing, feeding, and bathing. Weekly schedules assigning aides to residents are prepared by the resident nurse. An aide is assigned to one or two residents for three or four days out of the week.

On April 27, 1989, the aide assigned to Todd was Steve Gordon, hereinafter referred to as “Gordon.” The Board of Trustees of the University of Illinois admits that it employed Gordon as an aide at Beckwith. Todd had known Gordon since Gordon came to Beckwith in August 1988. Gordon had previously been assigned to Todd and assisted him with daily activities (dressing, eating, etc.). This included, on several occasions, showering.

Some time between 9:00 p.m. and 9:45 p.m. on April 27, 1989, Gordon approached Todd to determine where Todd was going to take a shower. Because the person who occupied the adjoining room was using the shower, they decided that Todd would take a shower in Gordons room. Gordons room was about 50 to 60 feet away. Todd drove down to Gordons room in his electric wheelchair, and Gordon followed with the shower chair. Once in Gordons room, Gordon assisted Todd in undressing. He lifted him into the shower chair, and wheeled him into the shower. Nothing was done to fashion a restraint on the shower chair.

When Todd finished showering, he was draped in a towel. Gordon pushed him in the shower chair back to his room. Typically, Todd was transferred directly from the shower chair to bed. Gordon left to retrieve Todds electric chair. Todds door was left open, and Todd was about six feet inside the door of his room, facing his window with his back to the door.

In a couple of minutes, Gordon returned with Todd’s electric chair. Gordon tried to swerve the electric chair around the right side of the shower chair so that he could close Todds door. He stood behind the electric chair and leaned over. He was therefore behind and to the right of Todd. He used the joystick in an attempt to move the electric chair. In attempting to swerve around the shower chair, he accidentally bumped the right rear wheel of the shower chair with the left foot rest of the electric chair, causing the shower chair to lurch forward. Todd felt the shower chair lurch. He had a muscle spasm in his legs. He felt his legs slipping under the shower chair. He tilted forward but was able to right himself. He told Gordon to stop because he was going to fall. Gordon saw Todd tilt forward. He was aware that by continuing to try and swerve the electric chair around the shower chair, the shower chair might be bumped. Nonetheless, he continued in his efforts to swerve around the shower chair, thereby bumping the shower chair five to eight times with the electric chair. Gordon saw the shower chair lurch and Todd tilt forward with each successive bump. Todd heard the click of the electric chairs joystick, and he experienced a series of lurches. He finally fell out of the shower chair.

Todd isn’t sure what he hit when he fell. He ended up on his left side, the left side of his head and his left shoulder hit the floor almost simultaneously. He immediately experienced sharp pain in his head, left shoulder, neck, and the side of his leg. He was bleeding from an open gash in his left forehead. His left leg and left arm were bruised, and he felt like he had pulled some muscles.

Gordon called for help. He and Alison Gaughan, Todd’s girlfriend, attempted to turn Todd on his back so that he would be more comfortable. After one or two minutes, the attending nurse at Beckwith, Patricia Joseph, hereafter referred to as “Joseph,” arrived. The three of them managed to lift Todd onto his bed. Joseph examined the gash in Todds head and told him that he needed stitches. Alison Gaughan drove Todd to the emergency room at Mercy Hospital in Urbana. Stitches were inserted to close the gash in his head, and he was given a days supply of Tylenol 3 for pain and soma compound, a muscle relaxant. Todd incurred medical expenses of $290.49 for this treatment.

The following day, Todd experienced constant pain in his head, neck, shoulder, and all down his left side. In the week following, Todd saw the physical therapist at the Rehabilitation Education Center on three or four occasions and received diathermy treatment. This is the therapeutic use of high-frequency current to generate heat within the body. Laypersons commonly refer to diathermy as heat treatments.

About a week after the fall, the stitches were removed. Todd continued to experience pain, mostly in his neck and shoulder, although the pain had subsided. While some of the pain dissipated after about ten days, Todds head and left shoulder hurt for a long time. He could not turn his head in a normal manner.

On June 19, 1989, Todd fell at Champion Federal, hereinafter referred to as “Champion.” He was going down the ramp at Champion Federal when he became disoriented and lost voluntary control of his body. He fell. Since he was wearing a chest and waist strap, he did not fall out of his electric wheelchair. The wheelchair tipped over. He landed on his left side and hit his head. He also received some scrapes on his back and elbow. That evening his girlfriend, Alison Gaughan, drove him to the emergency room at Mercy Hospital. X-rays were taken, and he was advised that he was okay. He was told to return if he experienced any nausea or vomiting. He was not given any medications or prescriptions. The medical expenses incurred by Todd with regard to this treatment were $267.84.

Soon after the fall at Champion Federal, Todd again fell while upstairs at Beckwith. He was backing up his electric chair and experienced the same type of disorientation and loss of voluntary control. He lost control of the wheelchair and fell against a wall. He received some scrapes, but he did not desire medical attention. According to Todd, on both occasions he had experienced an uncontrollable twitch in his left hand which radiated up his arm and throughout his body. He also experienced dizziness as if he were falling, loss of voluntary bodily control, and a sense of loss of touch with reality. Todd had never previously experienced these sensations.

Todd suffered more such episodes. In July 1989, soon after his second fall at Beckwith, he was maneuvering his electric chair down the sidewalk when he suddenly experienced a sensation of loss of control. This experience lasted thirty to forty seconds. He lost control of the left side of his arms, and his fingers twisted badly out of control. The following November, he started losing control of his arm while talking with a group of friends in front of Beckwith. The sensation, which lasted a minute to a minute and a half, radiated throughout his body. He asked those present to hold onto him so that he would not fall out of his wheelchair.

In January 1990, Todds left arm started twitching badly while he was laying down and trying to go to sleep. He asked his girlfriend to hold onto him so that he would not fall out of bed. The sensation lasted about a minute.

After this last episode, Todd went to see Dr. Samuel Young, a neurologist at Christie Clinic in Champaign. Todd related that he had experienced two or three of the episodes. He told the doctor that the jerking began in his left hand before radiating to his left arm and leg. He also informed Dr. Young that at some prior time, he had taken seizure medication. Dr. Young, however, saw no evidence that Todd had experienced any seizures since his accident in 1980.

Dr. Young was of the opinion that Todd was experiencing focal motor or Jacksonian seizures. He felt that they were probably due to some irritation of the right side of his brain. According to Dr. Young, focal motor seizures can be of varying duration and intensity. They can progress from one part of the body to another. They can, however, remain focal or localized, involving only one side of the body, as opposed to progressing into a grand mal seizure. Dr. Young recommended that Todd begin taking daily doses of Tegretol, an anti-convulsant. Dr. Young was of the opinion that Todd should remain on anti-convulsant medication, although it is his practice to taper a patient suffering idiopathic seizures off anti-convulsants if the patient is seizure free for two years. Idiopathic seizures are seizures of unknown etiology or cause. Dr. Young admitted, however, that tapering off anti-convulsant medication, or eliminating it altogether, entails a risk. Consequently, he restricts the activities of patients in such circumstances, and he cautions them to be very careful because of increased risk. In addition, he indicated that the probability of a complete cessation of medication is not better than fifty-fifty.

Todd also saw Dr. Kenneth S. Aronson, a neurologist at Carle Clinic in Urbana, Illinois. Dr. Aronson was also of the opinion that Todd had suffered focal motor seizures. He believed that Todd was predisposed toward seizure disorder as a result of the head injuries he had suffered in a car accident. He believed, however, that the actual seizure activity commencing in June 1989 was triggered by Todds fall and injuries in April 1989 after the shower. He explained that some people who are predisposed to seizure disorder, such as those who have preexisting brain injuries, may experience head injuries without any adverse effect. In others, such injuries may activate actual seizure activities. The type or severity of head trauma necessary to trigger such activity will vary depending on the persons stability and predisposition. In someone who is very unstable, a very minor head injury not involving loss of consciousness, may spark seizure activity. Dr. Aronson was of the opinion that since Todd was experiencing seizures, he would require anti-convulsant medication indefinitely.

Alan E. Dillingham, a Professor of Economics at Illinois State University in Normal, indicated that the present value of Todd’s anti-convulsant medication expenses over the course of his anticipated lifetime is between $4,821 and $7,707. Both medical doctors agreed that the use of anti-convulsant medication would not guarantee that Todd would not suffer further seizures.

Up until the time of the hearing, the anti-convulsant medication had succeeded in stopping the twitching and sensation of loss of control. If Todd fails to take the medication, he experiences muscle twitching, becomes dizzy, and feels like he is flying. Todd has continuously been prescribed and taken such medication since seeing Dr. Young in January 1990.

Todd still suffers episodes of being disoriented, although not as bad as before. Because of the episodes in which he experienced loss of voluntary control and seizures, Todd has altered his lifestyle. He does not go out as much as before, and he restricts his activities for fear that he will have a seizure in public. He also takes pains to insure that he is accompanied by someone who is aware of his condition and knows what to do in the event he suffers a seizure.

Todd has exhausted all applicable administrative remedies and sources of recovery on this claim. No payment or other action to compensate Todd has been taken on this claim by the Board of Trustees of the University of Illinois.

This court has exclusive jurisdiction to hear all claims sounding in tort against the Board of Trustees and the University of Illinois. The Claimant, Todd Andrew Schmiedl, complied with all applicable notice and statute of limitation requirements.

Steve Gordon was an employee of the Board of Trustees for the purposes of this claim. As such, Gordon was under duty to exercise ordinary due care for the safety of Todd.

Gordon failed to exercise ordinary care and breached his duty by causing Todd to fall out of the shower chair. As a result and proximate result of that negligence, Todd was seriously injured. Those injuries are severe and appear to be permanent. Todd has suffered pain and suffering, medical and medication expenses, and will have future medication expenses. In addition, the degree of his disability has been increased significantly as a result of this accident.

For that reason, we find liability to exist and set damages at the sum of fifty thousand dollars ($50,000).


text:
    (No. 90-CC-1512
    Janice Ryan, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 6, 1994.

    Joseph V. Roddy Law Offices (Thomas J. Pleines, of counsel), for Claimant.
    Roland W. Rurris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim is before the Court by reason of the death of Randall M. Ryan, a sergeant with the Chicago police department. The decedents widow, Claimant, Janice Ryan, seeks compensation pursuant to the terms and provisions of the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat. (1987), ch. 48, par. 281 et seq.), hereinafter referred to as the “Act.”

On February 21, 1991, this Court entered an order remanding the cause to a Commissioner to conduct a hearing to determine whether Sergeant Ryan was “killed in the line of duty” as required and contemplated by the Act. The Court and Attorney General had been unable to determine if Sergeant Ryan had been killed in the line of duty. The case was tried before Commissioner Fryzel.

The Facts

On January 27, 1989, Sergeant Randall M. Ryan of the Chicago police department died of ventricular arrhythmia due to, or as a consequence of, coronary artery disease after playing basketball in the Department gymnasium. Sergeant Ryan was on duty as a training officer. He usually taught some classes and had some clerical duties. Sergeant Ryan was very concerned about physical fitness and the Department indicated physical fitness was a necessity. Sergeant Ryan played basketball in the gym and then collapsed. He was taken to the hospital but was pronounced dead. The application for benefits indicates Janice Ryan is the surviving spouse. There was no designation of beneficiary. A medical certificate of death was filed with the application. There is nothing in the record to indicate that Sergeant Ryans death was caused by willful misconduct or intoxication.

The Law

Section 2(e) of the Act (Ill. Rev. Stat. (1987), par. 282e) defines “killed in the line of duty” to mean “losing ones 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 and if that injury arose from violence or other accidental cause * " In the present case, Sergeant Ryan was involved in a physical fitness activity while on duty when he had a heart attack.

This Court has considered a similar issue of whether a fireman was killed in the line of duty while playing football while on duty. (In Re Application of Winchester (1991), 44 Ill. Ct. Cl. 232.) In that case, the Court found that firefighters were encouraged to take part in physical activity since it helps maintain the physical conditioning necessary in that line of work. Firefighter Winchester was on duty at the time of his fatal accident. While waiting for instmction, he became involved in a scrub football game. While attempting to catch a pass, he lost his footing, fell and struck his head on the concrete resulting in his death. We made an award pursuant to the Act.

In determining whether an officer was killed in the line of duty when the fatal injury suffered was a heart attack, this Court has been consistent in its determinations. In cases where the decedent has been on active duty and has been performing strenuous physical activity at the time of the attack, the Court has consistently granted awards. In cases where the decedent was not performing strenuous physical activities when the heart attack was suffered, the Court has often denied such claims after closely examining whether the circumstances surrounding the decedents performance of duties prior to the time of the fatal heart attack was suffered may have precipitated the attack. (In Re Application of Cardwell (1991), 44 Ill. Ct. Cl. 288.) Based on the foregoing, we find that Sergeant Randall M. Ryan was killed in the line of duty, that all requirements of the Act have been met by Claimant, and that this claim is therefore compensable.

It is therefore ordered that an award of $50,000 be, and is, hereby awarded to Janice Ryan, the surviving spouse of decedent, Sergeant Randall M. Ryan, a Chicago police officer who was killed in the line of duty.


text:
    (No. 90-CC-1548
    Glenn Jones, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 4, 1994.

    Glenn Jones, pro se, for Claimant.
    Roland W. Burris, Attorney General (Wendell Derek Hayes, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Glenn Jones, an inmate with the Illinois Department of Corrections, seeks damages against Respondent, State of Illinois, in the sum of $100,000 for injuries sustained by Claimant by the actions of a correctional officer. Claimant’s complaint contends that on September 21, 1989, Claimant was returning from the chow hall when he was struck and injured by a correctional officer for no reason.

At the hearing before the Commissioner, Claimant testified that on September 21, 1989, Claimant was an inmate with the Illinois Department of Corrections. The institution was on deadlock but the inmates were allowed to leave their cells to eat. Claimant testified that when he was returning from eating, a correctional officer stopped the line and put his arm up and told Claimant to hold on and then hit Claimant in the mouth with his elbow. Claimant testified that he then pushed the officer back, was sprayed with mace, and was then later attacked by the same officer in the company of additional officers. Claimant contends that he was beaten while handcuffed. Claimant testified that he could not tell if the blow with the officers elbow was deliberate because Claimant said he “wasn’t even paying no attention to him, you know.” No words had been exchanged. Claimant admitted that it could have been an accident. The blow to Claimant’s head by the correctional officer’s elbow did not cause any injury. Claimant contends that after receiving the blow, Claimant just pushed his hand down and said to the officer, “watch what you’re doing.” Claimant contends that he did not push the officer’s hand down violently. Claimant had no previous problems with this particular correctional officer. Claimant testified that after he pushed the officer’s hand down, the officer went for his mace. Claimant contends that after the initial incident, he was beaten and kicked by multiple officers. After the incident complained of, Claimant was given medication when medical personnel came to his cell to see him which continued for a week. Claimant contends that he does not suffer from his injuries.

Claimant received discipline by being placed in segregation for a year.

On cross-examination, Claimant testified that the officer whose elbow struck the Claimant was simply doing his job by directing the line traffic. On cross-examination, Claimant admitted that the correctional officer had accidentally struck Claimant with his right elbow in the nose. Claimants nose did not bleed nor did he suffer any fracture, nor was the skin in his face injured. Claimant contends that when he pushed the officers arm down, it was simply a “common reaction.” Claimant admits that Claimant was not supposed to come in physical contact with an officer. Claimant further admits that when he touched the officer he, in a sense, assaulted the officer.

Claimant explained that his complaint arose not so much from the fact that he could have been written a disciplinary ticket for pushing the officers arm down but that he was thereafter beaten or handled roughly by the officer in question and other officers.

Correctional Officer Raymond Hall was called to testify by Respondent. Officer Hall testified that on the date and time in question he had been instructed to move inmates upstairs. Inmate Jones was one of the inmates. Hall testified that he told the inmates to “take it upstairs.” None of the inmates moved so Hall advised the inmates if they were not going to move, he was going to have to use chemical agents. Hall testified Claimant tried to “break past me.” Hall extended his right arm out and Claimant pushed it down. Claimant then grabbed Hall by the hair and started hitting Hall about the face and head. At that time, the rest of the inmates jumped Officer Hall. Another officer “up on the catwalk” fired a shotgun warning shot. At that time, Hall jerked away from Claimants grip while Claimant still retained a hold on Hall’s hair. Hall gassed the Claimant and every other inmate who was in the flag area with his chemical agent. Hall testified that Claimant broke and ran down the gallery and up a back staircase. Hall went looking for the Claimant and another inmate named Michaels who had assisted Claimant in assaulting Hall. When Hall found the Claimant, Hall attempted to restrain the Claimant with cuffs and Claimant struggled. Hall testified that necessary force was used to subdue the Claimant, get him cuffed, and remove him from the unit. Hall escorted the Claimant for medical treatment, advising medical personnel that Hall had sprayed Claimant with a chemical agent. Hall testified that following this incident, he was off work from nine months to a year with back and head injuries.

Hall testified that he had had no previous encounters with the Claimant.

Claimants “version” of the incidents from which Claimant contends he was injured are substantially refuted by clear and credible testimony offered by Respondents witness, Officer Hall. Indeed, not only was Claimant not injured in the manner alleged, but instead, Claimant was the aggressor against Officer Hall. There is absolutely no credible evidence to support Claimant’s allegations.

The issues in this case are not complex. The evidence offered by Claimant is directly contradicted by Officer Hall. Claimant was impeached on cross-examination. Under the circumstances, we believe that the testimony of the correctional officer was more believeable than that of the Claimant. (Peters v. State (1987), 40 Ill. Ct. Cl. 99.) The Claimant has the burden of proof and we conclude he has not sustained his burden of proof. Ball v. State (1989), 42 Ill. Ct. Cl. 247.

It is therefore ordered that this claim is denied.


text:
    (No. 90-CC-2016
    Terry Doll, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 26, 1994.

    Terry Doll, pro se, for Claimant.
    Roland W. Burris, Attorney General (Verne E. Denting, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against the Respondent, State of Illinois, in the sum of $100,000 for injuries allegedly sustained by the Claimant on January 12, 1988, as a result of an attack by other inmates.

During the trial of this claim, the Claimant testified that on January 12, 1988, he had just returned from the library to his cellhouse. He was on the flag leading upstairs to the gallery. An inmate walked up behind him and stabbed him in the back. When the Claimant turned to face the inmate, he saw a sharp object coming toward him. He raised his arm and was stabbed in the left arm.

Claimant contends that he was attacked by gang members known as “Latin Disciples.” He further contends that the situation in which he was involved was a riot, and it apparently started sometime in the morning while he was at the library. The Claimant was assisted by agents of the Department of Corrections to a secure area. In that area, he observed some of the same inmates attack other employees of the Department of Corrections.

Claimant testified that he could not identify his assailants. He was taken to the hospital for medical attention and transferred to the Chester Hospital, where he remained for several days for treatment.

Claimant argues that he should not have been allowed back into the cellhouse by the officer working the door because he “presumes” that the officer knew there were problems in the cellhouse. He himself learned of the conditions in the cellhouse after he had been stabbed and taken to the hospital, by overhearing corrections officers and inmates discuss the situation. He claims that if he had not been admitted to the cellhouse during a time of danger, his injuries would not have occurred. He further testified that most guards carry radios and problems are immediately announced over the radio network, allowing the guards to know of the situation. He testified that the radios work a “majority of the time,” but had no idea if the radio possessed by the guard in question was working on the day in question.

Claimant testified that he had scars from his wounds and demonstrated the scars to the Commissioner of this Court. He denied that he was prevented from doing anything that he could do before the injury. He did however complain that he had constant back pain since he was stabbed in the kidney. He has been taking Tylenol and muscle relaxants that have not given him relief.

A departmental report was admitted into evidence pursuant to rules of the Illinois Court of Claims. Various employees of the Department of Corrections have prepared reports which were part of the departmental report. In light of the departmental report, the Claimants testimony is not persuasive. The weight of the evidence established by the Department of Corrections employees is that the chain of events which ultimately led to the Claimants injury began long after the Claimant had returned to the cellhouse. The officer who allowed the Claimant back into the cellhouse was attacked and seriously injured subsequent to the time he let the Claimant in. The Claimants own testimony established that Officer Derickson who checked his “cell pass” did not appear to be upset or agitated at the time he was let back into the cellhouse. Since the attack on Officer Derickson obviously took place after the Claimant was let back into the cellhouse, a significant amount of time had to pass between the time the Claimant was readmitted and the attack on him. The Claimant has failed to prove any negligence on the part of the Department of Corrections.

Furthermore, the Respondent is not responsible for acts of third parties under circumstances such as presented here. (Mitchell v. State (1989), 41 Ill. Ct. Cl. 124.) Neither is the State an insurer as to the safety of an inmate in its custody. (Petrusak v. State (1987), 39 Ill. Ct. Cl. 113.) Neither the Claimant or the State had any advance information which would have put the State on notice that the Claimant was likely to have been attacked.

Therefore, the State is not guilty of negligence and the claim is denied.


author: Jann, J.

text:
    (No. 90-CC-2137
    Leland Shalgos, d/b/a Illinois Broodmare, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 22, 1994.

    Leland Shalgos, pro se, for Claimant.
    Roland W. Burris, Attorney General (John Morrissey, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

This matter came to be heard for trial on or about February 1, 1991. After the hearing, both parties submitted briefs in the order selected by the parties.

At the hearing, the evidence was the following:

Leland Shalgos, doing business as Illinois Broodmare, contacted James Ferguson, an individual who trains, breeds and owns horses, to train a racehorse named “Don’t Delay.” In 1989, Mr. Ferguson trained horses in his stables at the Du Quoin State Fairgrounds. Mr. Ferguson moved his stable from the Du Quoin State Fairgrounds to the Springfield State Fairgrounds in April or May of 1989. Mr. Ferguson's wife signed a lease agreement with the Illinois Department of Agriculture to lease space to stable his horses at the Springfield State Fairgrounds. One of the particular bams he leased space in was bam number 42. The lease was admitted into evidence. Mr. Ferguson took possession of the horse “Don’t Delay” to train her to mn in state races in Illinois, however, prior to taking possession of the horse, he inspected the horse. Mr. Ferguson concluded that the horse was a high quality two-year-old filly. Because the horse was Illinois bred, she was eligible to compete for 14 million dollars in potential winnings in Illinois.

On May 20, 1989, Mr. Ferguson was in Springfield training horses including “Don’t Delay.” After training the horses, he left Springfield for Marion, Illinois. However, prior to leaving bam 42 he noticed that a wire from a telephone pole had come off the bam and was on the ground emitting sparks. The other end of the wire was attached to a telephone pole. Mr. Ferguson contacted the security department regarding the sparking wire. On May 21, 1989, Mr. Ferguson received a telephone call in Marion, Illinois that bam 42 in Springfield was on fire. “Don’t Delay” was badly injured in the fire and had to be destroyed on May 23, 1989.

The fire in barn 42 was investigated by the State Fire Marshall’s Division of Arson Investigation. The fire marshall determined that the fire started due to a malfunction in an electrical outlet in the area of stall number 40, bam 42 as a result of conduit overheating which led to the outlet.

The contract executed by the Illinois Department of Agriculture and the Fergusons stated in summary that individuals leasing space in the buildings and on the premises of the Illinois State Fairgrounds are notified that the buildings and premises have been declared unsafe and in violation of code by the Illinois Fire Marshall. The lease agreement further states that the signature of the lessee “specifically acknowledges that even in the face of these warnings and code and structural violations and occupancy violations, he is/are assuming the risk and is/are going to occupy the premises anyway.”

The parties stipulated that the total out-of-pocket expenses incurred by Leland Shalgos d/b/a Illinois Broodmare for the breeding, feeding, training, etc. of “Don't Delay” were $6,947.28 to the date the horse was humanely destroyed.

The primary issue in this matter is whether the State of Illinois by the Department of Agriculture is liable for the loss of “Don’t Delay” or whether the claim is barred by the doctrine of assumption of risk. Briefly, the State produced evidence that the lease agreement for the bam at the State Fairgrounds in which “Don’t Delay” was lost explicitly informed the lessee that, in summary, the bams were unsafe, that the State Fire Marshall had found that bams were unsafe and that if the lessee rented the bams, he did so at his own risk. The State further argues that Mr. and Mrs. Ferguson were the agents of the Claimant since the Claimant put “Don’t Delay” in their hands to train and house. As a result, the State argues that the claim must be denied. Claimant responds by essentially arguing that first, the Fergusons were not his agents and their conduct in knowingly housing the horse in an unsafe bam cannot be imputed to him; and second, even if the Fergusons were his agents, the State cannot avoid liability by invoking the defense of assumption of risk because that defense has been removed in Illinois by statute, specifically section 1 of the Lessor’s Liability Act. 765 ILCS 705/1.

The statute states in relevant part:

"Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property, exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his or her agents, servants or employees, in the operation or maintenance of the demised premises ° ° ° shall be deemed to be void as against public policy and wholly unenforceable.”

An examination of the annotations to this statute does not indicate any exception for buildings owned or operated by the State of Illinois or its agencies. The plain language of the statute states that disclaimers of liability and waivers of liability in connection with leases are void as against public policy. The obvious rationale behind such a statute is to prevent a landlord from leasing property and avoiding liability by disclaimers in the lease. The statute forces the landlord to maintain the property or not to lease it. The State offered no other defense such as lack of notice or lack of proximate cause. The evidence demonstrated that the State was on notice of the unsafe condition of the barns. This is evident from the States lease in which it acknowledges that the premises are defective and that the State Fire Marshall has found them to be in violation of the law. In addition, Claimant produced evidence that prior to the fire, a malfunction in the electrical wiring was brought to the attention of State personnel. There has been no argument by the State that it does not have an obligation to use reasonable care in the maintenance of its property. Finally, the State provided no evidence and made no dispute that the duty of reasonable care was not breached. The State maintained that all legal duties normally imposed on it were waived by the assumption of risk clause in the lease.

Claimant has the duty to prove that the State was negligent and that the State s negligence was the proximate cause of his damages. (Hoekstra v. State (1985), 35 Ill. Ct. Cl. 156, 159-160; Hipka v. State (1982), 35 Ill. Ct. Cl. 581.) In this case, there is no dispute that Claimant has met his burden. The State failed to maintain its property and left it in a negligent condition. As a result of the States negligence, the Claimant suffered a loss.

The evidence presented by the parties as to damages varied greatly. The States expert witness Carl Becker, gave his opinion that “Don’t Delay” was worth $300 to $1,000 at auction. Claimant’s evidence put “Don’t Delay’s” value at $40,000 to $60,000. Claimant’s evaluation was based upon the horse’s pedigree, conformation, i.e., the horse’s physical attributes, and the evaluation of the horse’s trainer, Mr. Ferguson. Based upon all of the facts, the evaluation by William Rosenthal, an insurance broker and owner of a horse sale company, appears to be the most accurate. He valued “Don’t Delay” at between $40,000 and $50,000 based upon the horse’s pedigree, conformation and the trainer’s assessment of her, unfortunately, untried racing ability. The State’s expert admitted that two-year-old racehorses sold at auction are generally assumed to be defective and therefore sell for very low prices. All of the experts, including the State’s Mr. Becker, agreed that Mr. Ferguson is a competent and knowledgeable trainer who would have the best insight into “Don’t Delays” potential as a racehorse and broodmare.

Based upon the foregoing, we hereby award Claimant $20,000 for the loss of his racehorse due to Respondent’s negligent conduct.


author: Mitchell, J.

text:
    (No. 90-CC-2446
    Gerald Hunter, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 18, 1994.

    Gerald Hunter, pro se, for Claimant.

      Roland W. Burris, Attorney General (Christine M. Giacomini, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Mitchell, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against Respondent, State of Illinois, for injuries sustained by Claimant in an attack by other inmates. Claimants complaint contends that Claimant was injured by an unprovoked attack upon his person by other inmates on March 20, 1989. Claimant contends that Respondent negligently neglected to provide for Claimants health and safety. Claimant seeks damages in the amount of $10,000.

At the hearing, Claimant testified that on March 20, 1989, he was incarcerated at Menard Correctional Center. At approximately 2:00 p.m. on that date, he was in the gymnasium putting on his clothes after having played basketball. While Claimant was dressing, he was attacked by unknown assailants. Claimants injuries consisted of a broken left cheekbone, and a cut under his eye on the right side of his face.

Claimant testified that there were a lot of people present, but no correctional employees. Yet, Claimant testified that a shot was fired and Claimant heard Officer Bowles come up and say “break it up,” and arrested one of Claimants assailants. The shot fired was a warning shot.

Claimant was taken to the hospital and some stitches were put under his eye. He was given something for pain. Claimant was taken to an outside hospital where reconstructive surgery was done on his cheek. Claimant contended that he had scars under his eye, but the Commissioner could not, from a distance of 4 to 4Vz feet, see the scars. Claimant received no additional treatment after he left the hospital, and has never complained to any physician concerning problems after that.

Claimant’s theory of recovery is that Respondent does not have a strong enough visible presence at the gymnasium under circumstances where so many prisoners are at one time in a central location, and that the security is inadequate.

On cross-examination, Claimant stated that he was aware of only one correctional officer present at the time of the fight, and “the man in the tower” who did the shooting. Claimant testified that “there was no employees right there by the basketball court” when the first punch was thrown.

Respondent called a correctional employee named Jack Carlock. Carlock was working “in the tower” on the date of the occurrence. Carlock testified that it was the time of day to clear the gym of all inmates. After Carlock saw the fight start he fired the shot. He saw Officer Bowles and Officer Pearson on the floor separating the fight. Also a leisure-time activity employee named Miller was present. Carlock fired his gun instantly when he saw the fight. It looked to Carlock like it was a regular fist fight. Officer Bowles was at the door letting inmates in and out. When Carlock fired the shot, Bowles and Miller were present to break up the fight. Miller came from the office 15 feet away from where the fight started.

In Dorsey v. State (1977), 32 Ill. Ct. Cl. 449, this Court held that the State is not an insurer of the safety of persons under its control. In Dorsey, the Claimant was seriously injured by being struck by another inmate with a baseball bat in an area used for recreational purposes. As in the case at bar, in Dorsey the record was devoid of any indication of a dispute between the individuals involved in the matter, and no evidence of any kind to show that there had been an argument or previous fight between the two men. As in the case at bar, in Dorsey, neither of the individuals involved had shown any propensity for violence or causing trouble. The circumstances present in the Dorsey case show that there were between 100 and 125 inmates assigned to the area where the assault took place, and that there were approximately eight guards. In the case at bar, it is unclear how many inmates were present except through Claimants testimony that there were “maybe 50, 100.” Multiple guards were present, one of whom was in a tower with a loaded shotgun, and another was approximately 15 feet from where Claimant was assaulted.

The rule of the Dorsey case was followed in Bock v. State (1991), 43 Ill. Ct. Cl. 299, 305. In the Bock case, Claimant was injured in an unprovoked attack by another inmate as he was walking down a hallway intending to go to the “dayroom” in the cellhouse. Claimant contended, among other things, that his injuries were the fault of the Respondent for the reason that there had previously been several violent offenses in that area of the prison, and there were insufficient staff present. There was no evidence that anyone had ever complained about inadequate security. The Claimant contended that if there had been more correctional officers present, his injury would have been avoided. Following Dorsey v. State, supra, this Court held that liability could not attach to Respondent due to the fact that the attack on the Claimant was without warning, and was committed by a man that the Claimant barely knew. The State could not foresee the assault.

Upon the record in this case, and under the authority of the cases above cited, this claim is denied.