author: Raucci, C.J.

text:
    (No. 91-CC-3181
    Genie Construction Co., Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 12, 1999.

    Sorling, Northrup, Hanna, Cullen & Cochran (Michael A. Myers, of counsel), for Claimant.
    Jim Ryan, Attorney General (Brian J. Dees, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

The Claimant, Genie Construction Co., Inc., brings this action for compensatoiy damages pursuant to the Illinois Court of Claims Regulations. (705 ILCS 505/8(b).) The Claimant asserts that it suffered damages as a direct and proximate result of a breach of contract committed by the Respondent, the State of Illinois. The Claimant is seeking a refund for liquidated damages charged for beginning work on a bridge cleaning and painting contract late, and is seeking additional compensation for alleged extra work.

The following facts are basically uncontroverted. The Claimant was the successful bidder on two contracts with the Illinois Department of Transportation, hereinafter referred to as “IDOT,” entered into on June 29, 1988. One contract was for cleaning and painting bridges in District 5, which included Champaign county, and the other contract was for cleaning and painting bridges in District 3, which included LaSalle and Bureau counties. At a preconstruction conference on July 7, 1988, at which representatives of the Claimant and the Respondent were present, it was agreed that work on the District 5 bridges was to begin on July 11, 1988. At a similar preconstruction conference, on July 13, 1988, it was agreed that work would begin on the District 3 bridges on August 15, 1988. The Claimant was only able to work on one contract at a time.

Both contracts required that paint removal be done by what is known as Method II. Witnesses disagreed on exactly what was involved in a Method II removal, apparently because the requirements for this method were changed just prior to bidding on these two projects. The differences in the views on what is required for Method II removal will be addressed later.

During the course of work on tire District 5 bridges, representatives of IDOT determined that the paint left after the initial cleaning was not adhering to the surface and had to be removed completely. The Claimant was given additional compensation beyond the contract price for this extra work. Because of this additional work, the Claimant was unable to begin work on the District 3 bridges until nearly one month after the scheduled start-up date. The Claimant was charged $4,687.50 in liquidated damages for this delay. The Claimant contends that a similar problem with paint not adhering occurred on the District 3 bridges, and that the Claimant was told to remove all of the paint. The Claimant is seeking additional compensation for this alleged extra work. The Respondent contends that this was work included in the original contract and did not qualify as extra work that would merit additional compensation. Testimony surrounding these differing contentions will be addressed below.

A hearing was held before Commissioner Stephen R. Clark, at which there was testimony from Michael Ray Wilson, part owner of the Claimant company; Bill Taylor, an employee of the Claimant; George Davis, who was the resident engineer for IDOT in District 5; Richard Wayne Hahn, who was project review engineer for IDOTs Bureau of Construction; Tom Jensen, bridge painting inspector for District 3; and Bill Flannigan, who was IDOTs bridge maintenance engineer. The Commissioner also admitted into evidence five photographs of bridges, a copy of the pre-construction conference memorandum for District 3, a copy of the authorization of contract changes for District 5, department specifications for bridge cleaning and painting,'a summary of the alleged extra costs incurred by the Claimant in the District 3 work, correspondence between the Claimant and the Respondent regarding this claim, and IDOTs departmental report. We give little weight to the narrative at the beginning of the departmental report, because it is self-serving and conclusory.

The two main issues to be resolved are whether the late start on the District 5 project was chargeable to the Claimant or the Respondent, and whether there was extra work performed that was not contemplated by the original contract for the District 5 bridges. The facts being disputed regarding this second issue are whether the work ultimately performed by the Claimant was within the requirements of a Method II removal, and whether testing performed by the Respondents employee on the District 5 bridges complied with IDOTs regulations.

The first issue can be readily disposed of because the facts are basically uncontroverted. We have held that where the evidence presented shows, more probably than not, that the Respondent should have granted reasonable extension of time for delays due to unforeseen causes beyond the Claimants control and without the Claimants fault or negligence, then the Claimant would be entitled to all retainage held by the Respondent as liquidated damages. (Davinroy v. State (1991), 44 Ill. Ct. Cl. 268, 282.) The Respondent should allow an extension where the cause of the delay is not the fault of the Claimant., Id.

In the instant case, it is clear that the delay in beginning the District 3 project was not the fault of the Claimant. The Respondent was aware that the Claimant was to work one project at a time. Before the start-up date on the District 3 project, the Respondent was aware that extra work was being required of the Claimant on the District 5 project and would cause a delay in beginning the District 3 project. There is no excuse that, because these two projects were in two different districts, the Respondents right hand (District 3) would not know what the left hand (District 5) was doing. Therefore, we find that the delay was chargeable to the Respondent and was not the fault of the Claimant, and therefore, award the Claimant $4,687.50.

The second issue-whether the work performed in District 3 was outside the scope of the original contract and should be considered extra work for which additional compensation should be awarded — is a much more difficult issue. Not only are the facts surrounding this issue controverted by the parties, but they also apparently are controverted by employees of IDOT itself. At issue here is the interpretation of a Method II paint removal. To determine what is required by this method, we must consider not only the specifications and the interpretations by the parties, but also tire course of dealing that occurred during the performance of the District 5 contract. The special provisions included in the bidding materials upon which the Claimant based its bid for the District 3 project state the following:

“CLEANING AND PAINTING STEEL BRIDGES: Existing paint shall be removed using Method II cleaning. The three coat lead and chromate free alkyd paint system shall be used for field painting of existing structural steel # 6 #
509.06(a)(6) Surface Preparation Visual Standards. Surface preparation approval shall require the preparation of test sections. The Contractor shall prepare the test section surface to the specified level in accordance with the Swedish IVA Corrosion Committee visual standards supplied by the Engineer. These visual standards shall be used to determine the degree of conformance with the appearance requirements of the prepared surface. Prior to production surface preparation the Contractor shall prepare a test section on each structure to be painted in a location which the Engineer considers to be representative of the existing surface condition and steel type for the structure as a whole. The test section shall be prepared using the same equipment, materials, and procedures as the production surface preparation. The test section shall be in the range of nine (9) to twelve (12) square feet. Only after a test section area has been approved may the Contractor proceed with surface preparation operations. The visual standards shall be used in addition to the plans and specifications to determine acceptance of surface preparation. No additional compensation will be allowed the Contractor for preparation of test sections.
509.06(b) Cleaning and Surface Preparation 5 5 0 Method I (Complete Paint Removal). The surface preparation shall remove all rust, mill scale, foreign materials, and old paint down to bare metal. Unless otherwise specified, the surface preparation shall be accomplished in accordance with the requirements of the SSPC Surface Preparation Specifications SP6, for Commercial Blast Cleaning, except the visual standard shall be as herein specified. The surface preparation shall result in a 1-3 mil blast profile as determined by the Engineer. If rust or corrosion products have formed between connected plates or shapes of structural steel, the gap between the connected parts shall be cleaned by air blasting, hand tools or power hand tools approved by the Engineer * * *.
Method II (Partial Paint Removal). The surface preparation shall remove all rust, loose mill scale and loose, checked, alligatored and peeling paint. The surface preparation shall be accomplished in accordance with the requirements of the SSPC Surface Preparation Specifications SP7 for Brush-Off Blast Cleaning, except the visual standard shall be as herein specified. In addition, visible areas of rust which remain after the brush-off blast cleaning shall be prepared to bare metal in accordance with Method I above. An area of a minimum of one and one half (1-1/2) inches between the brash off area and the complete removal area shall be feathered using a dual action sander to provide a smooth transition between the new and old coatings.
Method III (Spot Paint Removal). The surface preparation shall remove all loose rust, loose mill scale, and loose, checked, alligatored and peeling paint from those areas designated by the Engineer. It is not intended that adherent mill scale, rust, and paint be removed by this process. Mill scale, rust and paint are considered adherent if they cannot be removed by lifting with a dull putty knife. Surface preparation shall be accomplished by the use of hand held metal brashes and scrapers, or other effective means meeting the approval of the Engineer. Abrasive air blasting or power tools may be used with the written permission of the Engineer provided results are equal to the best results obtainable by hand methods.
509.06(c)(1) Complete Repainting. When the old paint is to be completely removed from an existing structure using Method I cleaning, the structural steel shall be completely repainted ” * e.
509.06(c)(2) Painting with Partial Paint Removal. When the surface is prepared for an existing structure using Method II or Method III, the structural steel shall be repainted in accordance with the requirements hereinafter specified for “Lead and Chromate Free Alkyd Paint System.
(a) Number of Coats and Minimum Thickness. Spot painting shall consist of the application of one coat of the specified primer on all areas where the old paint has been removed, feathered and/or damaged prior to, during or after the cleaning and surface preparation operations. On surfaces where small areas of steel at closely spaced intervals are exposed, the spot prime painting shall consist of a complete coating of the surface. Spot painting shall include a coat of the specified intermediate coat over all areas coated with the specified prime paint and over any badly stained or discolored areas of the old paint prior to the application of the complete coat of finish paint.
It is understood and agreed that the cost of all work or arrangements outlined above, unless otherwise specified, has been included in the bid, and no extra compensation will be allowed.”

The memorandum of the preconstruction conference on July 13, 1988, for the District 3 project stated:

"7. All bridges shall be cleaned by Method II, with the exception that the outside built up plate girders on bridge No. 10 shall be cleaned by Method I. A test patch shall be coordinated with the engineer prior to full scale cleaning. Compressors shall be oil and water free.
8. Method I requires the existing paint to be removed to bare metal. Method II requires the removal of all rust, loose mill scale and loose, checked, allegated (sic) and peeling paint. An abrasive brush-off blast is required over the entire beam. Any ridges remaining after rust is removed to bare metal shall be feathered out by a dual action sander.”

The special provisions included in the bidding materials upon which the Claimant based its bid for the District 5 project state the following:

“Cleaning: Unless specified differently in the individual bridge location and work to be performed descriptions, all cleaning shall be in accordance with method II as outlined in the attached special provision for Cleaning and Painting Steel Structures. Some areas on the structural steel involved in this project may be further deteriorated than is readily apparent and prospective bidders are invited to make close inspection so they may anticipate the effort required to'prepare the steel for painting.
Painting: The painting shall be in accordance with the attached special provision for Cleaning and Painting Steel Structures * *

The special provision for cleaning and painting steel structures, which includes the provision labeled 509.06, is identical in the bidding materials on the District 5 project, as it was for the District 3 project, as outlined above. The identical sections outlined above are surface preparation visual standards* cleaning and surface preparation, and painting with partial paint removal. The section on complete repainting that was included in- the District 3 materials was not included in the District 5 materials.

The Steel Structures Painting Council surface preparation specification SP7 for brush-off blast cleaning, which was required in the special provisions for Method II in both the District 5 and District 3 projects, states:

“2. Definition
2.1 Brush-off blast cleaning is a method of preparing steel surfaces which, when viewed without magnification, shall be free of all visible oil, grease, dirt, dust, loose mill scale, loose rust, and loose paint. Tightly adherent mill scale, rust and paint may remain on the surface.
2.2 Mill scale, rust, and paint are considered adherent if they cannot be removed by lifting with a dull putty knife.
3. Appearance of the Completed Surface
3.1 The surface shall be roughened to a degree suitable for the specified paint system.
3.2 The entire surface shall be subjected the abrasive blast. The remaining mill scale, rust, or paint shall be tight and the surface sufficiently abraded to provide good adhesion and bonding of the specified paint system.
3.3 SSPC-Vis I or other visual standards of surface preparation agreed upon by the contracting parties may be used to further define the surface.”

Michael Ray Wilson, part owner of the Claimant, testified that he was in charge of the work being performed on both bridge contracts. His understanding of a Method II cleaning was that the bridge first, would be pressure washed with water, then rusted areas would be blasted to white metal. Next, the rest of the bridge would be brushed off with a sandblaster to roughen up the surface for new paint. The remaining paint surrounding the bare metal areas would be feathered. Then, the bare metal areas would be painted with primer and feathered. Lastly, the intermediate and top coats would be applied to the entire surface. Wilson stated that, in using this method, a bridge could be cleaned and painted in four days. He testified that a Method I cleaning required that the entire surface of the bridge would be taken down to bare metal, which called for more labor, more sand, and more paint. He stated that using this method takes double the time that Method II would. Wilson also testified to the events that occurred in performing the District 5 contract. These events are basically undisputed. Wilson stated that a test pattern was performed on a rust spot. When IDOTs engineer, David Birdsong, scraped the painted area with a putty knife, the paint came off. The paint was feathered further, but the surrounding paint still came off. Seven or eight State inspectors went to the site and concluded that there was some foreign substance between the top coats and primer that was causing the paint to fail to adhere. Wilson stated that the contract was modified from a Method II cleaning to a Method I cleaning. Wilson testified that, before the August 15,1988, start date of the District 3 project, he notified District 3, via telephone, of the delays in District 5, and that he would be unable to begin the District 3 project on time. Wilson was told to put his notification in writing. He testified that, on August 18, 1988, he wrote to Tom Jensen, bridge painting inspector for District 3, informing Jensen that the start-up for the District 3 project would be late because of the delays in District 5. Wilson also requested additional time to perform the District 3 contract. In addition, Wilson stated that he talked to Jensen in early August to inform Jensen that the start-up on the District 3 project would be late. Wilson testified that Jensen said he had talked to George Davis of District 5, but that he did not remember what questions were asked. Wilson also testified that, at the preconstruction conference for the District 3 project on July 13, 1988, he informed IDOT’s representatives that the Method II cleaning was not working in District 5.

Wilson testified that, when the District 3 project began, his company ran a test pattern, as was done in District 5. Wilson stated that, instead of using a dull putty knife, or scraper, to test the adherence of the paint, Jensen used a pocket knife, which Wilson said was razor-sharp. Wilson said Jensen told him that more paint would have to be removed. Wilson’s crews removed more paint, but Jensen said that all of the paint would have to come off. Wilson testified that, if Jensen had used a dull putty knife, as required by the specifications, the paint would have adhered. Wilson stated that Jensen would not use a scraper that Wilson had offered to him, but stated that he always had used his knife and still would. Wilson testified that test patterns were performed on two or three other bridges with the same results. Wilson stated that he told Jensen that he would expect additional compensation for removing all of the paint, and Jensen said Wilson could put in a proposal, but chances were that he wouldn’t win. After the project was completed, Wilson put in a request for additional compensation, which was denied December 11, 1990, in a letter from J. K. Kehl, engineer of construction for the Department. Wilson also testified that, if all of the paint were removed from the District 3 bridges, the work could not be finished within the 40 days specified by the State as the length of the project. He stated that, because the State said the project would take 40 days, he assumed that the State was not contemplating that all of the paint would be removed from the bridges.

It is the Claimants position that the requirements of the project changed from a Method II cleaning to a Method I when Jensen told Wilson that all of the paint on the bridges had to be removed.

Jensen testified that all of the paint on a bridge surface could be removed with a Method II cleaning, if the paint happened to be brittle. Jensen stated that he did not recall inspecting the test patterns on the District 3 bridges, but he denied telling Wilson that all of the paint had to be removed. He said that, on this project, nearly all of the paint was coming off with the brush-off blast because it was brittle. Jensen also said that if all of the paint on the bridge could be removed with a dull putty knife, that still would quality as a Method II cleaning. When asked if there was a point where Wilson had thought that enough paint had been removed, but Jensen insisted that more should be removed, Jensen replied, “Only if they went over the beam with the scraper and there was additional paint coming off.” On direct examination, Jensen testified that he thought the contractor could have determined in the pre-bid inspection how easily paint would come off the bridges. However, on cross-examination, he stated that a visual inspection would not reveal whether all of the paint would have to be removed. Jensen also stated that, it was his opinion that no more energy or time was expended on the District 3 bridges than would have been expended in conducting the Method II brush-off blast.

Bill Flannigan, who was a bridge maintenance engineer in 1988, testified that he wrote the specifications in question, and that the specifications had been amended before these contracts were bid, so that Method II cleaning would require a brush-off blast of an entire bridge surface, rather than spot-removal, which was required. Flannigan stated that a Method II cleaning no longer required blasting spots and feathering the existing paint. He said Method II required blasting the entire surface, removing all loose material, and inspecting the surface to determine if all of the paint was removed that should be removed. Upon questioning by the Commissioner, Flannigan admitted that it is possible that the districts were confused with the new Method II removal specifications, and some districts would have interpreted them differently than other districts.

George Davis, who was resident engineer for IDOT on the District 5 project, testified that the Claimant was given additional compensation, because it was discovered during the project that the paint was not bonded to the bridge beams. Davis said it was determined that this situation was not something that a contractor would have been expected to recognize when he bid on the project. He stated that, if a contractor was required to remove all three layers of paint on a bridge, that would be close to a Method I removal.

Richard Wayne Hahn, who was project review engineer for IDOT’s Bureau of Construction in 1988, testified that he had final authority over the decision to grant the Claimant additional compensation on the District 5 project. He agreed with Davis as to the problem of paint not adhering on the District 5 bridges, and stated that part of the rationale for modifying the contract was that a visual inspection would not have revealed the problem. Hahn testified that, about a year and a half after the District 3 project was completed, he was assigned to investigate the Claimants claim for additional compensation. He stated that he never viewed the District 3 bridges in 1988, nor did he talk to Wilson in making his decision to deny the Claimant additional compensation. Hahn agreed with Jensen that, if a contractor took off 100 percent of the paint from a bridge during a Method II brush-off blast, that would not change the requirements to Method I. His interpretation of a brush-off blast was that the blast is normally done in spots, and the rest of the paint is left on the surface. Hahn said that his rationale for approving the additional compensation for the District 5 project, and denying it for the District 3 project, was that the situation in District 5 occurred early in the process when IDOT felt that there was a problem with the existing paint, and IDOT did not want to take chances with leaving paint residue, whereas, with the District 3 project, the work was apparently based on the brush-off blast which, in itself, did not create a change order. However, it should be noted that the alleged change in the scope of the work to be done on the District 3 bridges occurred as a result of the initial test blast — just as had occurred in District 5.

In deciding questions of what work is to be included in a State contract, we have held that the language of a contract is not controlling in determining the parties’ agreement when other circumstances are also relevant in determining the agreement. (Derenski v. State (1992), 45 Ill. Ct. Cl. 297, 302; Child Development Centers, Inc. v. State (1984), 36 Ill. Ct. Cl. 138,142.) Specifically, we have adopted the view that other circumstances, such as course of dealing, usage of trade, or course of performance, are also relevant to the inquiry of the parties’ bargain-in-fact. The relevance of these considerations expresses a legislative policy in favor of courts’ determining the actual agreement of the parties, and against enforcing printed contract terms in a mechanical fashion. (Child Development Centers, Inc. v. State, supra, at 142.) Furthermore, where there is an ambiguity in the specifications, where there is no evidence to indicate that a visual inspection of the project site was negligent, or that industry custom calls for a greater inspection, and where the State fails to prove by expert testimony that specifications clearly showed the work to be included in the original bid, we have found that the Claimant did not simply make a bad bid. (Larry Carlson & Associates, Inc. v. State (1988), 40 Ill. Ct. Cl. 100, 110-111.) The State impliedly warrants that work could be performed according to tire plans and specifications, that the specifications are adequate for performance of the job, and were free of material defects. (Id. at 111.) In this case, the rule of contra proferentum is applicable. A contract must be construed most strongly against the drafter. (McCarthy Brothers Co. v. State (1995), 47 Ill. Ct. Cl. 15, 35.) Under that rule, the risk of ambiguity, lack of clarity, and absence of proper warning is on the drafting party which could have forestalled the controversy. The rule pushes the drafters toward improving contractual forms, and it saves contractors from hidden traps, not of their own making. (Id.) Furthermore, there are many analogous cases decided by the Court, wherein the State has been required to pay for the services it requires and receives. (See Johnson County Asphalt, Inc. v. State (1987), 39 Ill. Ct. Cl. 36; McCarthy Brothers Co., supra; and Harrison F. Blades, Inc. v. State (1975), 30 Ill. Ct. Cl. 388.) In these cases, errors in plans or specifications by the State caused delays or increased costs that this Court found were to be borne by the State.

In the instant case, it is clear that there is much confusion about the interpretation of a Method II cleaning, even among IDOTs own employees. For example, Flannigan, who wrote the specifications, stated that, with a Method II cleaning, there would be no spot removal and feathering. However, this seems to be in direct conflict with the specifications themselves, which, in section 509.06(b), state:

“* ° “ visible areas of rust which remain after the brush-off blast cleaning shall be prepared to bare metal in accordance with Method I above. An area of a minimum of one and one half (1-1/2) inches between the brush off area and the complete removal area shall be feathered using a dual action sander to provide a smooth transition between the new and old coatings.”

In addition, there were inconsistencies within Jensens testimony. Foremost is Jensens testimony that he did not order all of the paint to be removed after the test blast, in spite of his testimony that he did not recall what occurred in connection with the test blast. Furthermore, Jensens opinion that no additional time or energy was expended on the District 3 bridges is at odds with the evidence submitted by the Claimant as to how much additional time and materials were expended than had been anticipated in the original bid. An additional 455 gallons of red oxide paint, 1,000 bags of sand, usage of tools and vehicles, and payroll, apparently were necessary to complete the job. Although the Respondent objected to this evidence, it presented no evidence — aside from Jensens opinion — to refute, or rebut, these contentions. From this evidence, and the testimony of Wilson that the work actually done could not have been completed in the required 40 days, it is apparent that there was more work involved than what was contemplated in the original contract.

We find that the districts were, in fact, confused as to the interpretation of the new Method II requirements. In light of such confusion, greater weight should be given to the course of dealing between the parties in the District 5 project. The undisputed facts show that, in District 5, existing paint failed to adhere after the test blast. Representatives of the State then changed the scope of the contract to require that all of the paint was to be removed from the District 5 bridges, which merited the award of additional compensation. It is IDOT’S responsibility to uniformly interpret its specifications. Two districts within tire same department should not be allowed to interpret the same specifications differently. If the two projects experienced the same difficulties, it is up to IDOT to ensure that the difficulties are dealt with in the same manner in both districts. Therefore, it must be determined whether identical difficulties arose in both projects. If so, then the Respondent should be held to the standards set forth in its course of dealing with the Claimant in the District 5 project, and the Claimants award should be granted.

The basic facts regarding both projects appear to be identical. In both cases, it was determined after the initial test blast that additional paint had to be removed. Under the course of dealing set forth by the events that occurred in the District 5 project, requiring removal of all paint from bridge surfaces merits additional compensation. Therefore, the Court finds that the scope of the work under the District 3 project was increased, just as it was in District 5, and, thus, the Claimant did perform extra work beyond the scope of tire original contract.

Even if the problems that arose in District 3 were identical, the Claimant must prove that the extra work was properly authorized. “Where the State vests a person with apparent authority to order services, the Claimant reasonably relied upon his apparent authority to bind the State, and the Claimant performed the services, the State cannot deny that the person had actual authority to bind the State.” Child Development Centers, Inc. v. State, supra, at 142-143.

In the .instant case, Jensen was vested with apparent authority to order services. It is clear that the Claimants work had to conform to the inspectors requirements. It is the inspectors job to ensure that work is done in conformity with the contract and the States standards. The apparent procedure — as inferred from the events surrounding the District 5 project — is that, if the test blast revealed that more paint would have to be removed, the engineer or inspector would call in higher authorities from IDOT to determine whether the scope of the work should be changed. Jensen did not do this. Because Jensen could not recall what occurred during the test blast, the only credible evidence of what occurred comes from Wilson and Taylor. Both said Jensen required that all of the paint be removed. This Commissioner finds, as fact, that Jensen did order the Claimant to remove all of the paint from the District 3 bridges. The consequences of the failure of Jensen to seek advice from his superiors should not be borne by the Claimant. Therefore, we find that Jensen had apparent authority to request the additional work and, therefore, bind the State by his actions.

We address the Claimants contention that the test performed on the District 3 bridges was improper. This issue is pertinent because, if the contention is true, the. Claimant was required to perform unnecessary work at the behest of IDOT and should be reimbursed for such.

Bill Taylor, an employee of the Claimant who worked on the District 3 project, supported Wilsons version of the events that occurred on the District 3 project, as explained above in Wilsons testimony. Taylor also testified that Jensen refused to use a scraper, but instead used a pocket knife that Taylor had seen him repeatedly sharpening.

Jensen, however, testified that he did not recall inspecting the test pattern, but added that he usually would use a scraper handed to him by the painter. He stated that he never used a pocket knife as a test tool, but he might have used one to lift a small piece of paint that had been overlooked. However, the Claimant introduced deposition testimony to impeach Jensen. In the deposition, Jensen said he has used a pocket knife in inspecting the paint on a bridge. When asked whose pocket knife he used, Jensen replied, “I usually use my own.”

In light of Jensens failure to recall the specific facts surrounding the District 3 test blast, and his inconsistent statements regarding his use of a pocket knife to perform testing, the only remaining credible evidence of what occurred during the District 3 testing is the testimony of Wilson and Taylor. There is also no dispute, according to the specifications and testimony of Department employees, that a pocket knife is an improper tool for testing the adherence of paint. The test was not performed according to specifications. The Court should add this fact to the balance in weighing the evidence. The Claimant should not be held responsible for extra work that was ordered as a result of improper actions by an agent of the Respondent.

Finally, regarding the amount of damages due the Claimant, evidence of the extra materials, equipment, and labor used on the District 3 project were presented. Although the Respondent objected to this evidence, the Respondent failed to produce contrary evidence.

In conclusion, we award the Claimant $4,687.50 for the improperly withheld liquidated damages, and $19,089.04 for extra work performed.

It is therefore ordered, adjudged and decreed that Claimant, Genie Construction Co., Inc., is awarded twenty-three thousand seven hundred seventy-six and 54/100 ($23,776.54), dollars in full and complete satisfaction of this claim.


source: Caselaw Access Project

author: Mitchell, J.

license: Public Domain

text:
    (No. 91-CC-3580
    Irene S. Anson, Claimant, v. The State of Illinois, Respondent.

      Order filed January 13, 1998.

    Sandman, Levy & Petrich (Nancy A. Thrill, of counsel), for Claimant.
    Jim Ryan, Attorney General (Jonathan C. Green, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This cause comes before the Court on the complaint at law of Claimant, Irene S. Anson, against Respondent, State of Illinois, seeking compensation for injuries sustained in a motor vehicle accident that occurred on June 21, 1990. Claimant alleged that an agent and servant of Respondent negligently operated a motor vehicle owned by Respondent on the day in question. Claimant asserted that she was driving her motor vehicle in a southerly direction on Cicero Avenue, Chicago, Illinois, and Respondents negligence was the proximate cause of a collision between the two vehicles, causing her injuries. The complaint requested $50,000 for pain and suffering and $12,573.54 as compensation for specifically itemized damages listed in her bill, of particulars.

A hearing was conducted on December 20, 1996, at which the following three witnesses were presented: Irene S. Anson; Frank Anson, Claimants husband; and Mark Ashbrook, an Illinois State trooper. Claimants exhibit nos. 1 through 15, 15(A)-(K) and 17 were admitted into the record. Claimants exhibit no. 16 was ruled to be inadmissible. Respondents exhibit nos. 3 and 5 through 8 were admitted. Respondents exhibit no. 1, the departmental report, was admitted with the exception of an affidavit. Respondents exhibit no. 2 was ruled inadmissible. There was no Respondents exhibit no. 4.

Claimant, Irene S. Anson, testified that on June 21, 1990, she was traveling south on Cicero Avenue, enroute from work, a route she had taken many times over the last 15 to 18 years. She was involved in an accident near the intersection of Cicero and Peterson Avenue (an east-west street). At the intersection, Cicero has three southbound lanes, a curb lane, a center lane and a left turn lane. When she first turned onto Cicero she was traveling in the left lane, next to the center line. She then moved into the curb lane. Her speed did not exceed 20 miles per hour. It was a beautiful day and the streets were diy. She then moved her car into a “lane” to the right. The lane, “is where cars are parked” and this lane opens up and widens for a half block immediately preceding Peterson. It is wide enough for a vehicle. Where the lane widens there is a car wash, then a motel, an alley and a service station. This lane is not marked by any lines. Claimant characterized the location as being similar to four lanes southbound on Cicero. The intersection is controlled by traffic lights. When she first saw the light, it was red. When she first got into the far right “lane” (referred to as “right turn lane” by Claimant without objection), there were vehicles in front of her in that lane. When she entered the right turn lane, there were vehicles stopped in front of her in the left and curb lanes. She was proceeding in the right turn lane at approximately ten miles per hour and intended to turn right onto Peterson. While proceeding in the right turn lane, she “noticed from the side of [her] left side that there was a vehicle just a couple inches away from [her] car and [she] got hit and knocked into a pole.” She later learned that the vehicle was a State police car. About two seconds elapsed between her first noticing the vehicle and the impact. She did not hear anything, such as horns, screeching brakes or sirens, and the vehicle did not have its mars lights on.

Claimant s vehicle was hit on the left driver s side and rear by the front of the State troopers vehicle. The front of her vehicle struck a pole near a gas station. She felt a bit of pain in her chest. Both impacts were heavy. She was wearing her seat belt. Her arms were sore, she could not speak and the whole three quarters of her right breast was bruised. The ambulance transported her to Swedish Covenant Hospital.

Claimant identified 11 photographs as accurately depicting the condition of her vehicle after the accident. She believed exhibit no. 15(1) best depicts the area where the first impact occurred with the troopers vehicle and exhibit no. 15(E) best depicts the area where the second impact occurred.

While in the emergency room at Swedish Covenant Hospital, Claimant complained about her chest, neck, arms and back. She stayed in the hospital for three days. She felt like a tractor had rolled over her and she could not lie flat. She had pain in her neck, back, arms and breastbone. The pain medication helped alleviate some of the pain.

After being discharged from the hospital, Claimant still experienced soreness and stayed home from work, off her feet, for five and a half weeks. She was not able to attend to her regular duties and functions. The bruise on her chest stayed for about two months. She saw her doctor, Dr. John Casería, at Holy Cross Hospital. She saw him on a regular basis. She experienced pain in her chest for five or six weeks. She is still taking pain medication for her neck. When the weather changes, three or four times a year, she feels pain in her chest. She continues to see Dr. Casería. When she turns her head it feels like there is “gravel or crystals” in her neck. She cannot tilt her head back and when she turns it to either side she feels pain. Her arms are “terrible, especially during the night.”

Prior to the accident, she had not injured her neck and not experienced pain or problems in her arms. She cannot cut the lawn, carry heavy groceiy bags or mop the floor like she did before the accident. She cannot put pressure on her arms to get out of the bathtub and has trouble hanging laundiy because of the pain in her arms. She slept on a love seat for a year and a half because she had to sleep in a confined space due to the pain in her arms. She could not even be a wife to her husband. She is an accounts payable clerk and she cannot move boxes, files or big piles of checks with lots of invoices. She cannot romp with her grandchildren or stand for more than 15 minutes before experiencing pain in her shoulders and neck. She experiences pain, at different times and in different degrees, in her arms and neck. She takes Darvocet two or three times a day based upon a prescription from Dr. Kalinga. She tried going without pain medication for a week or two but the pain was really bad.

At the time of the accident she was earning $375 a week, and at times earned overtime. She estimated overtime to be an average of $25 to $35 per week. She had a cleaning service and earned $350 per month cleaning the office twice a week. She could not continue cleaning. She hired a friend to do the cleaning and paid her $180 a month.

Claimant offered into evidence medical bills identified as Claimants exhibit nos. 3 through 14. Respondent did not object to any medical bills for services rendered prior to December 31,1990. However, all bills for services rendered after December 31, 1990, were objected to because they were not included in the complaint and Respondent did not have notice. The following documents, or portions thereof, were admitted without objection: Claimants exhibit no. 3; the portion of Claimants exhibit no. 4 prior to December 31, 1990; and Claimants exhibit nos. 5 through 10. Respondent objected to Claimants exhibit nos. 11 through 14 and the portion of Claimants exhibit no. 4 for services subsequent to December 31, 1990. All of the exhibits were admitted into the record.

On cross-examination, Claimant acknowledged that she was looking at the traffic light as she was going down the curb lane. When she entered the right turn lane she saw three or four cars stopped in the lanes to her left. She agreed that the impact with the troopers vehicle started at her front left fender, then proceeded to her door and then to the left rear fender. Claimant was treated for carpal tunnel syndrome in 1989. She was taken to the hospital after an accident in May of 1995, and later visited Dr. Casería. In December, 1994, and July, 1995, she experienced slipped discs in the bottom of her back and visited Dr. Kalinga.

On redirect examination, Claimant stated that her vehicle was completely within the right turn lane and she had traveled two. or three car lengths before the impact. In 1989, her hand to her elbow bothered her and she had surgery to release pressure on a nerve. She had no pain or problems after her hand surgery. The pain she described in her arms after the subject accident was different from the problem she had in 1989. After the accident in 1995, she was checked at the emergency room and was released. She did not experience any pain. In relation to her slipped disc in July, 1994, she experienced pain in her lower back, and from her right knee up to her hip.

Claimants husband, Frank Anson, testified that he was not a witness to the accident. When he arrived at the hospital, he observed that his wife was pale, white and had been crying. Prior to June, 1990, his wife never had problems with day-to-day functions. Since June 21, 1990, she complains about her neck and back pain constantly. She cannot hang his flannel shirts and he has to help her out of the bathtub. She walks slower. In the 18 months after the accident she was not a wife to him.

Mark Ashbrook testified that he was an Illinois State trooper on June 21,1990, and had been for five years. On the day in question, he was on patrol with a probationary trooper. The probationary troopers name was Chong S. Lim, and he did not go by the name' “Nirnson,” or any different last name. Ashbrook did not remember whether Trooper Lim testified at a subsequent traffic Court proceeding conducted as a result of the accident. Ashbrook only heard this trooper referred to as “C. S. Lim.”

The accident happened at 5:07 p.m. He was assisting a disabled vehicle. An emergency response vehicle (ERV) was also present. His intention was to assist the disabled vehicle, experiencing mechanical problems to the engine, from the Edens Expressway to the Amoco station on Cicero and Peterson.

Ashbrook followed the disabled vehicle south on the roadway shoulder immediately right of the travel lanes of the Edens Expressway. The vehicle exited on the ramp to proceed eastbound on Peterson. They proceeded east on Peterson and made a left turn (or north) on Cicero. Ash-brook followed the disabled vehicle to the comer of Cicero and Peterson. After the vehicle turned north on Cicero, he went to the right of the vehicle and went north on Cicero. It was his intention to assist the disabled vehicle in making a left turn off Cicero into the gas station. He was going to cross the southbound lanes of traffic at Cicero. He pulled north beyond the southbound left turn lane of Cicero and blocked the southbound center and curb lanes. He could not entirely block the extended right turn lane. He believes the disabled vehicle was in the process of entering the gas station at the time of impact. He does not know whether it had already crossed Claimant’s lane at the time of impact. He was stopped blocking traffic approximately three minutes.

Ashbrook agreed that the front end of his vehicle struck the left side of Claimant’s vehicle, and the front end of her vehicle struck the pole. He denied that his car was moving, and that he did not have sirens or mars lights on at the time of the impact. He did not see Claimant’s vehicle before the impact. At the time he blocked traffic, his partner stayed in the vehicle.

On cross-examination, Ashbrook stated that his partner stayed in the vehicle because it was not reasonable to exit the vehicle due to traffic conditions. On redirect examination, Ashbrook stated that it was reasonable to block the lanes of traffic during msh hour.

The evidence deposition of Dr. John Caserta was admitted into the record (Claimant’s exhibit no. 15). The medical records from Dr. Caserta and Swedish Covenant Hospital were admitted (Claimant’s exhibit nos. 1 and 2, respectively). Respondent objected to those portions of Dr. Caserías records subsequent to December 31,1990.

Dr. Caserta testified that he is a general practitioner and that Claimant has been one of his patients. He examined Claimant a few days after her accident and noted that she had multiple contusions, a strain of the neck muscles and an injury to her sternum. The symptoms were rather acute and Claimant complained bitterly of pain in the chest, sternum and neck, which affected her hands. He gave her a prescription for Tylenol 3 for pain control. He saw her once a month through November, 1990, except for seeing her twice in September.

The x-rays indicated that she had a fracture of the eighth rib on the right side. He saw her about once a month during 1991. The symptoms and signs of neck pain radiating over her shoulder and weakness in her hands were present every time he saw her. He ordered an electromyelogram in 1991 to determine whether there was nerve damage. He referred her to a neurologist and determined there was nerve irritation involving the arms. An MRI was performed and it showed that there were degenerative changes of the cervical spine at C-5, C-6 and C-7, and spinal stenosis. Stenosis is a constricture of the nerve sheath which causes pressure on the individual nerves. The condition is caused by some kind of trauma. He opined that Claimant’s stenosis condition, shown in the MRI report dated October 29) 1991, was caused by the automobile accident of June 21, 1990. The MRI also showed herniated disks at C-4, C-5, C-6 and C-7. He opined that the herniated disks were caused by the same automobile accident.

Claimant continued to see him about once a month during 1992 and 1993. He recalled seeing her during 1994, 1995 and 1996, at which times she continued complaining about her neck and arms. She had an MRI taken in October, 1996, and the findings were consistent with the MRI findings in August, 1991. She still had herniated disks in her neck. Her symptoms will continue, and the only thing that can be done is to control the pain. He opined that her condition is permanent. He opined that all of the injuries he previously described were caused by the automobile accident in question.

On cross-examination, Dr. Casería acknowledged that he treated Claimant for carpal tunnel syndrome for her arm and wrist, and that some of the arm and wrist pain could have been caused by her problems of carpal tunnel syndrome.

Claimant was not willing to wear a collar or followup on therapy, which may have possibly increased her pain and suffering. The degeneration of the spine could be caused by arthritis and aging.

Claimant offered into evidence the transcript of the purported testimony of Trooper Lim, Ashbrooks partner, made at a traffic Court hearing. Trooper Lim was deceased at the time of the hearing of the case at bar. Respondent objected. The transcript identifies the witness as “C. S. Nimson.” Respondent argued that Ashbrook testified that Lim did not use that name, the entire transcript was not produced and the hearing was for a limited purpose. Respondent waived the need to file a certified copy.

The Court ruled that Deere v. Chicago Transit Authority (1948), 72 Ill. App. 3d 729, the case cited by Claimant, would allow the admission into the record of the testimony of a witness that was unavailable. However, it was ruled that the transcript identifies the witness as “C. S. Nimson,” and there was no evidence presented that would demonstrate that.C. S. Nimson and C. S. Lim are the same individual and, in fact, there was evidence to the contrary: Claimant believes the name to be a typographical error because the purported testimony shows that it was Ashbrooks partner that testified (Claimants exhibit no. 16). Claimants exhibit no. 16 was not admitted. Claimant made an offer of proof that the witness testified that Trooper Ashbrooks vehicle was stopped for only 30 seconds and that the disabled vehicle was already in the gas station before the impact occurred.

Prior to the presentation of Respondent’s case in chief, Respondent made an oral motion for directed verdict, which the assistant attorney general indicated would be briefed. The Respondent did not subsequently file a written motion, did not reassert the motion in its brief, nor present any argument in support of the motion. The Court denied the motion. The evidence in this matter construed in a light most favorable to Claimant supports the denial.

Respondent moved for the admission of the departmental report (Respondent’s exhibit no. 1), a document that is estimated to be several hundred pages, without pagination or any other organizational scheme. Claimant objected to the police report and to the affidavit of Thomas Beasley, labeled “Voluntary Statement,” as hearsay and not admissible pursuant to section 790.140 of the Court of Claims Regulations. (74 Ill. Adm. Code 790.140.) Claimant objected based on relevancy and beyond the scope of section 790.140, to the document entitled notice of motion, with numerous attachments in relation to case no. 92-L-7025 in the circuit court of Cook County.

It was ruled that:

“a. The police report was prepared by Illinois State Police Officer(s) and is therefore within the meaning of Section 790.140 and is admissible.
b. Thomas F. Beasley is not an employee or officer of the State and the portions of his affidavit prepared by a State Police Officer are admissible, but the handwritten statement by Mr. Beasley within the affidavit is not admissible pursuant to Section 790.140.
c. The documents produced in relation to the Circuit Court case, including those prepared by the Attorney General, the Circuit Court and the Appellate Court are admissible pursuant to Section 790.140.”

Trooper Mark Ashbrook thoroughly reviewed his 1014 years of training and experience with the Illinois State Police and the awards and commendations he received. The policies and procedures for assisting disabled vehicles is to identify hazards that may be present on the roadway and take necessary steps to alleviate hazards that may be present, including blocking traffic. The guidelines used for blocking traffic are to place the squad car in the way of danger, using the vehicle as a barricade between the danger and the vehicle or persons the officer is attempting to protect. The officer uses his discretion as to how to place the vehicle. He is familiar with the intersection of Cicero and Peterson.

On June 21, 1990, Trooper Lim and he were southbound on the Edens Expressway north of Peterson. He observed a vehicle occupied by two elderly subjects on the right-hand shoulder. They stopped and talked to the individuals and assessed that the individuals had developed a mechanical problem, possibly an overheat. He called for an emergency patrol unit to provide assistance with regard to the vehicle to see if mechanical repairs could be made. It was determined that aid could not be rendered and it was his and Trooper Liras decision with regard to the traffic conditions and the volume of traffic on the roadway and the incumbent time of day and the age of the subjects, that the clearest and safest thing to do was to escort them off of the highway to the nearest safe location for possible repair of the vehicle or to have other arrangements made.

He instructed the driver of the disabled vehicle to proceed down the shoulder and he would remain behind the vehicle while the emergency patrol unit would stay in front of the vehicle. The car was cutting out, the power was intermittent and the vehicle had difficulties reaching 20 miles per hour. He had his lights and siren on. They exited 1-94 expressway at Peterson. There are no safe shoulders on Peterson or on the expressway, and they intended to escort the disabled vehicle to the gas station at the northwest comer of the Cicero and Peterson intersection.

Respondent produced a diagram purportedly of the intersection (Respondents exhibit no. 2), and Claimant objected to its admission. Trooper Ashbrook could not attest to the accuracy of the diagram. It was mled inadmissible because it included depictions of vehicle locations that were not included on the diagram in Respondents exhibit no. 1, after which it was purportedly modeled.

When they were proceeding east on Peterson, they did not turn into the Amoco station on the left (north) because there was a raised curb median between the east and west bound lanes of Peterson. When the disabled car turned left onto Cicero, it came to a halt and Ashbrook went around and in front of it. There are two driveways into the Amoco station. He had instructed the driver of the disabled vehicle to enter the first driveway (closest to the intersection) after Ashbrook had stopped all oncoming traffic. Ashbrook attempted to stop the traffic north of the second driveway. There was approximately 90 feet between Ashbrooks vehicle and the disabled vehicle. Ash-brooks vehicle was approximately 111 feet from the edge of the intersection.

At the time lie began stopping traffic, his emergency lighting and siren were already activated and he was using the left spotlight in a turning motion back and forth to alert, and get the attention of, oncoming traffic. He was in a Chevrolet Caprice squad car with six-inch wide 3M reflectorized type markings, amber in color, and bordered by reflectorized brown and white stripes that run the length of the vehicle side. The squad car had the wig-wag headlights that flash intermittently. It was equipped with red and blue internal grill lights. It had a rotating flashing blue light mounted to the right of the rear view mirror in the front windshield. It had two rear deck lamps mounted and suspended from the rear header facing the back glass, one red and one blue. It had four-way hazard flashers. No mars lights were mounted on top. It is a “semi-marked” unit.

He explained the method used to stop the traffic as follows:

“Q. Now, as you were stopping traffic, could you describe the method that you used in stopping the traffic near that second driveway?
A. Yes, sir. As I came to stop ahead of the disabled vehicle traveling in the northbound lanes, in the center line closest to the center median, I utilized the spotlight to alert attention along with the other use of the lighting and the sirens of the driver in the lane that was southbound nearest to the center coming toward me.
Once I had gotten his attention visually eye to eye with him and alerted him I was going to move into his lane with an actual physical hand sign to stop, I am coming over, I moved the vehicle one way over. I continued to utilize the spotlight and the other emergency equipment and get the attention visually on eye contact with the driver in the lane which would be to the right of the first driver to ensure that he comes to a complete stop also and then bring the vehicle into his lane of travel maintaining angularity of the vehicle to provide the optimum visibility for myself, of the impending hazard coming toward me, but also to allow me the opportunity to see the disabled vehicle and clear him into the drive to clear him from the roadway.
Q. Now, as you proceeded in that fashion to the right end of the roadway, did you have to block the left-hand turn lane?
A. The rear of my squad, the position and the configuration of the roadway with regard to the left-hand turn lane was just to the rear of my squad. It was not actually protruding into that lane of travel.
There was a vehicle who had also come to stop that would have continued on to make a left-hand turn but that driver acknowledged my presence and the need to stop and remained stationary until the roadway was clear.”

There were at least three units stopped in a line in each lane, for a total of six or seven vehicles.

At that location, where his grill was protruding, the roadway widens. He put the car in park. From the time he started to prohibit movement of traffic until the accident, three minutes elapsed. He sat in the final position with the car in park approximately 30 to 45 seconds. Once he placed his unit in park, he motioned for the disabled vehicle to move across. Just as the rear quarter of the vehicle was leaving the roadway, Ashbrook s attention on it was broken by the sound of the impact and the sensation of something striking the squad car. The impact started on the right front bumper. Claimants car came to rest against the light pole to the south of the second driveway, just slightly to his left.

Ashbrook stated that the policy is not to exit the vehicle in a hazardous situation. Four Polaroid photographs (Respondents group exhibit no. 3(A)-(D) and four other photographs (Respondents exhibit nos. 5 through 8) were identified by the witness as accurately depicting the intersection. All were admitted without objection.

On cross-examination, Ashbrook stated that he could not identify the specific sections in which the policies, of which he had testified, were contained. There are no policies or guidelines that specifically set forth how an officer is to proceed when coming across a disabled vehicle. The Amoco station had a contract with the State as a repair vendor. He knew the owner, Tom Beasley.

He did not recall whether Trooper Lim testified at the traffic Court proceeding. He had no recall whether any other trooper testified at the traffic Court proceeding.

He came across the disabled vehicle 100 yards north of the Peterson overpass. The emergency patrol unit actually came to the scene before Ashbrook arrived. The emergency patrol unit did not exit the expressway with the disabled vehicle and Ashbrook, but instead continued south. He acknowledged that, at his deposition, he said that approximately three minutes elapsed from the time he came to a complete stop to the time he was struck. He conceded that it was possible that a vehicle could fit in the “extended area of the curb lane” (right-turn lane) if Ashbrook was stopped in a fashion to block the left turn, center and curb lanes of southbound Cicero. He had witnessed cars using the right turn lane to make a right turn on Peterson.

He did not know how far the sirens could be heard. His siren was not on the entire time he was stopping traffic because it would be interrupted by his use of the public announcement system.

Claimant argues that Trooper Ashbrook failed to exercise reasonable care which a reasonably prudent person would have exercised under the circumstances in the operation of his motor vehicle. (Long v. Illinois Power Co. (4th Dist. 1989), 187 Ill. App. 3d 614, 543 N.E.2d 525.) As a direct and proximate result of Respondents negligence, Claimant was injured and sustained serious and permanent injuries.

Claimant asserts that Ashbrook violated Illinois traffic laws when he turned left across traffic and struck Claimant’s vehicle. He violated sections 11 — 601 and 11 — 902 of the Illinois Vehicle Code (hereinafter the “Code”) for failing to decrease his speed and yield the right-of-way to Claimant’s vehicle. (625 ILCS 5/11 — 601, 902.) These violations are prima facie evidence of negligence. The points of impact on the two vehicles show that Respondent’s vehicle struck Claimant’s vehicle.

The troopers assistance to the disabled vehicle is not an emergency situation within the meaning of the emergency exception. Section 11 — 205 of the Vehicle Code (625 ILCS 5/11 — 205) permits the driver of an emergency vehicle to disregard regulations governing directions of movement or turning when responding to an emergency call or when in the pursuit of an actual or suspected violation of the law or when responding to a fire alarm.

Assuming arguendo that the emergency exception applies, the trooper must still exercise due regard for the safety of all persons. (Mayfield v. City of Springfield (4th Dist. 1982), 103 Ill. App. 3d 1114, 432 N.E.2d 617.) Claimant cites Bauman v. State (1981), 34 Ill. Ct. Cl. 140) for the proposition that Trooper Ashbrook would be in violation of his duty to act with due regard if he was not using his lights and siren at the time of the accident. Section 12 — 601(b) of the Vehicle Code requires the use of sirens by vehicles on an emergency call to warn drivers of the approach thereof. (625 ILCS 5/12 — 601.) Claimant testified that she did not see lights or hear a siren. Ash-brooks testimony is not believable. Regardless of whether he used his lights or sirens, the manner in which Ash-brook violated the traffic laws was unreasonable.

Claimant asserts that the Court should admit into evidence the transcript of the traffic Court proceeding. If admitted, it would show that Ashbrooks partner testified to facts differently than Ashbrook.

The medical bills totaled $10,839.33. Claimant missed 35 days from work with a wage loss of $2,975 and had to pay someone $180 to perform her cleaning job. As a result of the accident, Claimant will spend another 21 years in pain and receiving treatment or medication. She should receive $175,000 for past pain and suffering and loss of normal life and $300,000 for future pain and suffering and loss of normal life. Claimant seeks a total of $448,994.33. .

Respondent acknowledges that troopers are held to the general standard of due regard for the safety of others, even though they may be given some exceptions to the general traffic laws. However, Respondent contends that Trooper Ashbrook did not breach any duty owed to Claimant. Respondent cites various statutes and other material to support its argument that Trooper Ashbrook had a “duty” to help remove the disabled vehicle. Respondent asserts that Ashbrooks conduct demonstrates that he exercised ordinary care with due regard for the safety of others.

Respondent contends that the transcript of the traffic Court proceeding should not be admitted because Claimant cannot verify that tire testimony was given by the person alleged to be C. S. Lim. In the event the testimony is admitted, it supports the testimony of Ashbrook in some respects, including his claim that lights and sirens were activated at the time of the accident, and that the “contradictions” claimed by Claimant do not exist.

In the alternative, Respondent argues that Claimant was more than 50% contributorily negligent. (735 ILCS 5/2- — 1116(c).) Claimant violated her duty to keep a proper lookout for other vehicles and to drive within her lane. (625 ILCS 5/11 — 709(a).) She must use every reasonable precaution to avoid a collision with an automobile. Katzenbergerv. State (1991), 43 Ill. Ct. Cl. 218 (1991).

Respondent reasserts that its diagram (Respondents exhibit no. 2) should be admitted because a proper foundation was laid.

Respondent argues that the requested damages are exaggerated and should be limited to those pled in the complaint and bill of particulars. She did not attempt to mitigate her damages by going through surgery or therapy. Her damages were not all related to the accident in question. In the alternative, should Claimant be awarded damages, the award should be reduced by the percentage of fault attributed to her. Marquis v. State (1985), 37 Ill. Ct. Cl. 221; 735 ILCS 5/2 — 1116(c).

For the Claimant to recover against the State, she must prove by a preponderance of the evidence that negligent acts or omissions of the States employee were the proximate cause of the Claimants injuries. Bellamy v. State (1990), 43 Ill. Ct. Cl. 337; McCoy v. State (1985), 37 Ill. Ct. Cl. 182. There are certain facts that are not disputed. The State trooper involved in the accident was assisting a disabled vehicle. He blocked, or attempted to block, multiple lanes of southbound traffic on Cicero Avenue. Claimant was utilizing an extended area of the southbound lanes commonly used as a right turn lane. Claimants and the troopers vehicles came into contact, and as a result of the impact and the subsequent impact with a pole, Claimant suffered personal injuries.

It is the circumstances surrounding the disputed facts that portend the outcome of this case. Claimant testified that she was traveling at 10 miles per hour in the right-hand turn lane when the trooper struck her car without warning. She testified that she did not hear a siren, or other noises, and did not see the semi-marked patrol car, or any emergency lights. It would be arguable that two moving vehicles could collide without either driver hearing or seeing the other. The Court could then apportion cause based upon the duty each driver owed to the other, as determined within the framework of the evidence.

The determination in this case is complicated by Trooper Ashbrook’s testimony that his vehicle not only had its siren and emergency lights operating, but that his vehicle was not moving at the time of impact. He testified that he placed his vehicle in “park” prior to the accident. No occurrence witnesses testified, although there apparently were numerous persons who might have witnessed the occurrence or nonoccurrence of certain key facts. Trooper Lim was unavailable, having predeceased the hearing. The purported traffic Court testimony was ruled inadmissible because it expressly referenced a witness by a different name (Nimson). A Mr. Beasley purportedly witnessed the incident; however, his affidavit was ruled not admissible pursuant to section 790.140 of the Court of Claims Regulations. The occupants of the disabled vehicle, or of the southbound vehicles, may have disputed or corroborated certain facts; however, no one was presented. Although photographs of Claimants vehicle were provided, no one presented photographs of the troopers vehicle. No accident opinion witnesses were presented. The absence of evidence turns this case into a classic dispute characterized by a type of “yes I did,” “no you didn’t,” point and counter-point.

Due to the absence of objective nonbiased information available to assist in the factual determinations, the credibility of the witnesses is a key element. Both witnesses appeared to be credible witnesses. Neither party impeached the credibility of the other party’s essential witness. In two minor points, it is believed each witness’s credibility was scratched but not destroyed. Claimant testified on direct examination that she never had problems with her arms; however, on cross-examination she acknowledged having surgery the prior year for carpal tunnel syndrome affecting one arm. The trooper testified to at least two additional facts in his cross-examination that were not provided in his direct testimony. In his direct examination he said the emergency response vehicle traveled in front of the disabled vehicle; however, he did not testify that the ERV did not exit the expressway until he was questioned on cross. On cross, he also acknowledged that he used his public address system at times, and the siren did not work when the PA system was used.

The Court finds that Claimant has proven a prima facie case of neghgence sufficient to overcome a motion for directed verdict; however, she has not proven neghgence by a preponderance of the evidence. She has not refuted, by a preponderance of the evidence, Respondents evidence that the troopers vehicle was stationary and that it had its sirens and emergency lights operational. A review of Respondents exhibit no. 1 indicates that both of these essential facts were asserted on the day of the accident and no evidence was presented at the hearing, other than Claimants testimony that the troopers vehicle “struck” Claimants vehicle. Because of this we determine that Bauman v. State (1981), 34 Ill. Ct. Cl. 140 is distinguishable.

The applicable portions of the statute cited permits a trooper to disregard traffic laws when responding to an “emergency call.” (625 ILCS 5/11 — 205.) Although Trooper Ashbrook could not cite specific guidelines to cover his conduct in assisting the disabled vehicle, nothing has been provided to indicate that the situation does not fall under the meaning of responding to an emergency call. In fact, he testified that he thought the conditions were such that it was necessary to escort the vehicle to a safe place. No evidence was provided to dispute the conditions which the trooper testified led to his conclusion.

The Court finds that Claimant has not proven by a preponderance of the evidence that the troopers vehicle was moving and that the sirens and lights were not operating. Her failure to do so supports a consistent finding that the trooper acted with due regard for the safety of others within the meaning of the statute and the claim is denied.


author: Epstein, J.

text:
    (No. 92-CC-0416
    Orlandis Bolden, Claimant, v. The State of Illinois, Respondent.

      Order filed March 11, 1999.

    Orlandis Bolden, pro se.

    Jim Ryan, Attorney General (Michael A. Wulf and Lori L. Crenshaw, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Epstein, J.

Claimant Orlandis Bolden, an inmate of the Illinois Department of Corrections (“IDOC”), brought this claim seeking $80 for damage to personal property, i.e. his television set, which he alleges he suffered due to the negligence of IDOC.

The Trial Record: The Facts

On March 29, 1991, while Claimant was watching television in the Stateville IDOC facility, the electrical power went out. Claimant asserts that this outage was due to an inmate placing electrical wires together in a neighboring cell, causing a short in the system. Claimant alleges that up to 15 days before the incident, IDOC staff were aware of the electrical problem in cell number 2A04. Claimant also contends that IDOC personnel were aware that that cell had no safeguard on the electrical outlets, and contends that the activities of the other inmate in the unsafeguarded cell caused the electrical problem that destroyed his television set for which he claims a value of $80, based on its purchase price.

Claimant testified that he was assigned to segregation at the time of the incident. He also acknowledged that power outages occurred at Stateville over a period of two or three months. Claimant contends he told IDOC agents that there were power problems that might damage his television, and that he had observed the problem and that there were two wires sticking out of the wall in the other cell that had not been repaired.

The gravamen of Claimants complaint appears to be that IDOC allowed occupancy of a cell that had electrical problems, and that as a result of placing an inmate in that cell the Claimants television set was destroyed.

However, the Claimant acknowledged that, in his grievance that he filed with the Institutional Review Board, he had stated that “the new inmate placed the two wires together, and they blew out grievants television.” Claimant contends that despite the direct cause of his damage by the other inmate, he had made the condition of the cell perfectly clear to the staff and an inmate should never have been put in that cell “in the first place.”

Opinion

The Court accepts Claimants assertion that there was an electrical problem in plain view in the neighboring cell number 2A04 at the time of this incident, which is essentially undisputed. Claimants statement that no prisoner “should have been allowed” to occupy that cell until the electrical problem was remedied is also uncontradicted, but is a matter of opinion, not of fact. Third, we find no evidence contradicting the testimony of the Claimant that he had made the electrical problem known to IDOC staff prior to the incident in question, and that despite that knowledge, they had placed a prisoner in the cell and the electrical surges caused by cross-wiring destroyed Claimants television set.

However, on close analysis, there is no evidence as to what occurred in the other cell to cause this electrical outage, nor is there direct evidence that something that happened in that particular cell was, in fact, the cause of the particular outage that destroyed Claimants T.V. Claimant was not there. Although, based on the prior circumstances to which Claimant testified, there is surely reason to suspect that crossed wires in the other cell are a prime suspect as the cause of the destructive electrical short, this simply has not been proven or evidenced. Respondent, offering no evidence, concedes the point that the power surge or “short” damaged or destroyed Claimant’s television set, but the ultimate cause remains unproven. This leaves open the possibility that Claimant suggests: that another inmate’s actions (deliberate or negligent) caused the power short.

In Pughsley v. State (1991), 43 Ill. Ct. Cl. 284, this Court addressed an inmate’s claim for damage to his television set as a result of a power surge caused by the wrongful act of another inmate. Judge Patchett, speaking for the Court, stated:

“At the hearing “ ° “ Claimant testified that the incident in question occurred while he was housed in the segregation unit * e at Menard Penitentiary. At approximately 8:00 p.m. on the day in question, there was ‘an electrical power surge' caused by another inmate several cells away from Claimant’s cell. The Department Report ° ° ° indicates that the power surge was caused as a result of another inmate tampering with an electrical outlet. Thus, the damage to the claimant’s property appears to have occurred as a result of the wrongful act of another inmate. It was not the fault of the Respondent or its agents.”

This Court went on to hold that the State was not an insurer of the property of inmates and that no evidence had been presented by the Claimant in the Pughsley case to indicate that the Respondent or its agents failed to exercise due care with respect to the property of the Claimant.

There is some distinction between the Pughsley case and the case at bar. In the case at bar, Claimant contends that Respondents negligence was grounded in the fact that Respondent knew that there were exposed electrical wires in a cell which could be manipulated to cause power surges, and yet they placed an inmate in the cell notwithstanding that prior knowledge. Nevertheless, it is our view that Pughsley governs here. It may have been negligent of the IDOC staff to leave the wires exposed in an occupied cell, as Claimant contends, but it is also true that the exposed wires are an obvious hazard that any reasonable person can recognize as such, and that the control of the hazard was as much in the hands of the other inmate as in IDOC s hands.

There is no basis, therefore, to claim that the exposed wires, by themselves, caused the shortage. In the absence of such evidence, or something similar, there is no basis for concluding on this record, that IDOC s negligence was the proximate cause of the short and thus of the destruction of Claimants T.V. set. Moreover, although supporting evidence is lacking, Claimant takes the position that the power surge was caused by the wrongful activities of another inmate in cell number 2A03. That allegation essentially kills this claim against IDOC, because it claims an intervening cause between negligence of the Respondent and the damage to Claimants television. Accordingly, this claim must be denied for lack of proximate cause.

Conclusion

For the reasons set forth above, this claim is denied and forever barred.


author: Epstein, J. Sommer, C.J. Sommer, C.J.

text:
    (No. 92-CC-0589
    Stupp Brothers Bridge & Iron Co., Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed May 26, 1998.

      Order filed July 23, 1998.

      Order filed July 24, 1998.

    Crowder & Scoggins, Ltd. (Alan G. Pirtle, of counsel), for Claimant.
    Jim Ryan, Attorney General (Kelli L. Gidcumb, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Epstein, J.

This construction contract claim, which seeks recovery of $95,000 withheld by the Department of Transportation (“IDOT”) as liquidated delay damages on a 1989 steel fabrication contract — for an F.A.I. Route 90/94 (Dan Ryan Expressway) reconstruction project — is before the Court on the Respondents motion pursuant to section 2 — 619q of the Code of Civil Procedure (735 ILCS 5/2 — 619) to dismiss on exhaustion grounds. Respondents motion is supported by evidentiary material, primarily correspondence. Claimants opposition is supported by affidavit. We take the motion on the papers filed.

Respondents Exhaustion Motion

Respondent asserts that the Claimant failed to exhaust a potential alternative recovery from a third party— a mandatory condition of recovery from the State, under section 25 of the Court of Claims Act (705 ILCS 505/25) and our Rule 60 (74 Ill. Admin. Code 790.60) — which bars this claim. Respondent asserts, and Claimant concedes, that Claimant has not filed suit against the (former) U.S. Steel Corporation (“USS”), now USX, which was Claimants supplier of the steel for its fabrication work for IDOT in this case. Respondent cites correspondence between Claimant and USS in which the Claimant demanded recompense from USS for its delivery delays and blamed USS delays for causing, or contributing to, its tardiness in delivering its fabricated work product to IDOT, which generated the contractual delay damages (at $2,500 per day) that were imposed by IDOT.

Claimants Arguments in Opposition

In response, the Claimant (a) denies that it had any contract or other legal basis for suing USS for any “delay” in its delivery of the raw steel, (b) denies that USS was contractually obligated to a delivery deadline, (c) contends that Respondent has misconstrued and taken out of context its correspondence with USS, and (d) blames IDOT delays in its contract bidding-and-awarding process as the cause of the delay in obtaining the steel from USS and ultimately as the cause, or a cause, of Claimants late performance. Supported by the affidavit of its vice president, R. Philip Stupp (exhibit 1 to Claimants “Memorandum of Law in Opposition to Motion to Dismiss,” hereinafter “Stupp af£”), Claimant asserts, and Respondent does not dispute, that there was no written contract between USS and the Claimant, and that the oral order or agreement with USS for the manufacture of the steel did not include a commitment to a firm delivery deadline.

Claimant also points out, again supported by affidavit, that the practice in the steel industry generally, as well as for USS, is to manufacture steel episodically on regularly- and pre-scheduled steel “rolling” dates — called “rolling schedules” — that each mill has established and that are not subject to alteration or supplementation to accommodate special orders from individual customers. (Stupp af£, pars. 15-18.) Claimants position, essentially, is that it missed the critical USS December, 1989, “rolling schedule” due to IDOT’s timing of the contract award, without “fault” of its own, and that USS bears no liability for delays because its production and delivery of the steel were within industry standards in light of the order date and the pre-established rolling schedules.

Claimant also emphasizes, somewhat inconsistently, that it ordered the steel from USS before it was contractually bound to do so — i.e., before the contract was signed or even awarded to Claimant, and even before Claimant received a “notice of intent” from IDOT to award the contract to it — and that IDOTs notice was not issued until after the USS order deadline for the December, 1989, “rolling schedule” had already passed. Stupp af£, pars. 11,13,14,17; exhibit G.

Analysis

We do not address the incipient dispute as to the ultimate cause(s) of the Claimants delayed performance in this case, as between Claimants fault (IDOTS position), USS s fault (IDOTs view of Claimants prior position) and IDOTs fault (Claimants position), which is neither evidenced on the current record nor before us. However, on the present undisputed record, it is clear that no factual or legal basis has been advanced by Respondent to support a viable claim of liability against USS for delay in its supply of steel to Claimant. Review of the Claimant-USS correspondence advanced by Respondent fails to show any cognizable legal basis for USS delay liability and, remarkably, fails to show that the Claimant asserted otherwise.

It is not enough to point to an involved third-party to invoke this Courts exhaustion requirement as a bar to recovery. It is inadequate merely to say, as Respondent does here, that someone else said or admitted that a third-party may have some liability. A showing of potential liability must be made. The alternative-source exhaustion requirement is not a doctrinal procedural obstacle. The requirement to exhaust alternative sources of recovery before recovering from the State serves the purpose of making the State the payor of last resort and the payor of the least possible portion of any shared culpability for damages. As Claimant observes, this Court has applied this statutory exhaustion principle strictly, but not unreasonably.

Our precedents do not reflect a mechanical application of the rule divorced from its underlying practical purpose. This Court has declined to require Claimants to bring “exhausting” actions against third parties where such action is legally baseless or barred (see Blumstein v. State (1995), 47 Ill. Ct. Cl. 186, 191) (potential third-party source of recovery immune); or where the Claimant could not timely know of the third-party s potential liability (see McKee v. State (1978), 33 Ill. Ct. Cl. 58); and in a number of cases we have refused to dismiss claims where the putative third-party recovery source was shown to be unpursuable or judgment proof. This Court has consistently applied the rule to require the Respondent to carry the initial burden of showing that there is a viable cause of action under established or provable facts against the putative third-party source. {See, e.g., Tunk v. State (1988), 40 Ill. Ct. Cl. 1.) In appropriate circumstances, where distinct damage elements are involved, this Court has applied the exhaustion rule to bar or limit a particular element of recovery, rather than to bar all recovery on a multi-element claim. Guarantee Electrical Co. v. State (1991), 43 Ill. Ct. Cl. 35.

Conclusion and Order

The Respondents motion fails to establish a reasonably likely basis of recovery from USS, or any legal basis for this Claimant to sue USS. Respondent has not carried the burden of showing the existence of a likely source of alternative recovery. We will not require litigants to file baseless or frivolous suits as a precondition of litigation in this Court. The motion to dismiss will be denied without prejudice to raise this issue as an affirmative defense or to renew it by motion in the event that facts later adduced give rise to a genuine issue of third party liability.

It is therefore ordered: The Respondents motion to dismiss for failure to exhaust alternative sources of recovery is denied without prejudice.

ORDER

Sommer, C.J.

This cause comes before the Court on the parties’ joint stipulation for settlement which states: “This claim arises from a claim of liquidated damages resulting from a contract entered into between the parties in the above entitled cause of action.”

The parties have investigated this claim, and have knowledge of the facts and law applicable to the claim, and are desirous of settling this claim in the interest of peace and economy.

Both parties agree that an award of eighty-five thousand dollars and 00/100 ($85,000) is both fair and reasonable.

Claimant agrees to accept, and Respondent agrees to pay Claimant eighty-five thousand dollars and 00/100 ($85,000) in full and final satisfaction of this claim and any other claims against Respondent arising from the events which gave rise to this claim.

The parties hereby agree to waive hearing, the taking of evidence, and the submission of briefs.

This Court is not bound by such an agreement but it is also not desirous of creating or prolonging a controversy between parties who wish to settle and end their dispute. Where, as in the instant claim, the agreement appears to have been entered into with full knowledge of the facts and law and is for a just and reasonable amount, we have no reason to question or deny the suggested award.

It is hereby ordered that the Claimant be awarded eighty-five thousand dollars and 00/100 ($85,000), in full and final satisfaction of this claim.

ORDER

Sommer, C.J.

This cause coming on for hearing on Respondents motion to substitute general release and joint stipulation for settlement and the Court being fully advised in the premises:

It is hereby ordered that Respondent’s motion is hereby granted allowing Respondent to substitute the originals for the fax copies of the general release and joint stipulation for settlement.