text:
    (No. 94-CC-0027
    Ray Hoye, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 27, 1997.

      Opinion filed October 2, 1997.

    Thomson & Weintraub (Kevin P. Fitzgerald, of counsel), for Claimant.
    James E. Ryan, Attorney General (Gregory T. Riddle, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This is a claim for personal injuries allegedly sustained when Claimant dove from a boat into a portion of Clinton Lake, a conservation facility which Respondent has leased from Illinois Power Company. The amended complaint pleads ordinary negligence on the part of Respondent in allegedly fading to post warnings and properly supervise the area where Claimants diving accident occurred.

Of import to the present status of the litigation is paragraph 2(e) of the amended complaint:

“That at said time, the Respondent, the State of Illinois, Department of Conservation, charged a fee to persons using the Lake for recreational purposes, including the beach and swimming area.”

Respondent has filed a motion to dismiss grounded on the Recreational Use of Land and Water Areas Act, 745 ILCS 65, which provides in pertinent parts:

“Section 3. Except as specifically recognized by or provided in Section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational or conservation purposes, or to give any warning of a natural or artificial dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
#»#
Section 6. Nothing in this Act limits in any way liability which otherwise exists:
#0#
(b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof * * See 745 ILCS 65/3 and 65/6.

The operative terms “owner” and “charge” are defined in section 2 of the Act as follows:

“(b) ‘Owner’ includes the possessor of any interest in land, whether it be a tenant, lessee, occupant, the State of Illinois and its political subdivisions, or person in control of the premises.
0 0#
(d) ‘Charge’ means an admission fee for permission to go upon the land, but does not include the sharing of game, fish or other products of recreational use; or benefits to or arising from the recreational use; or contributions in kind, services or cash made for the purpose of properly conserving the land.” See 745 ILCS 65/2(b) and (d).

Claimant initially challenges the applicability of the Recreational Use of Land and Water Areas Act, citing to defunct precedent which this Court has previously referred to as the Miller doctrine. The Miller doctrine was carefully reviewed by this Court and rejected in a January 31, 1994 opinion issued in Sherman v. State, 93 CC 2240, and a copy of that decision is attached hereto for the benefit of the parties inasmuch as it has not yet been published by the Court. Since our decision in Sherman, the Appellate Court has also studied the Miller doctrine and reached the same result. Hoye v. Illinois Power Co. (4th Dist. 1995), 269 Ill. App. 3d 597, 601, 646 N.E.2d 651, 653, app. denied (1995), 162 Ill. 2d 567, 652 N.E.2d 341.

Claimant next challenges the applicability of the Recreational Use of Land and Water Areas Act by contending that the Swimming Pool and Bathing Beach Act, 210 ILCS 125, should instead govern. However, Claimants counsel has provided no authority or reasoned argument to support this bald contention. Accordingly, it is rejected.

Thus, the narrow issue before the Court is whether the payment alleged in paragraph 2(e) of the amended complaint constitutes a “charge” so as to overcome the general immunity otherwise afforded to Respondent by section 3 of the Recreational Use of Land and Water Areas Act. The amended complaint specifically terms the payment as a “fee,” not an “admission fee.” Respondent has submitted an affidavit from its director of fiscal management indicating that the payment is deposited into the State parks fund, from which fund sums are then disbursed for the “maintenance, development, operation, control and acquisition of State Parks.”

The “exception to the exception” set forth in paragraph 2(d) of the Recreational Use of Land and Water Areas Act expressly states that a “charge” does not include “contributions * * * made for the purpose of properly conserving the land” (emphasis added). The use of the terminology “contribution” suggests a voluntaiy donative intent; in short, a gift. This seems especially so when viewed in distinction to the “admission fee for permission to go upon the land” language found earlier in the definition. Further, use of the word “the” ahead of “land” suggests that the “contribution” is to be used solely for the particular facility at which the payment is made. Accordingly, we hold that a payment constitutes a “charge” unless it is a purely voluntary gift to be used for the particular facility at which it was given.

The affidavit submitted by Respondent says nothing about the voluntary or involuntary nature of the payment. However, Respondents affidavit clearly does indicate that the payment is deposited into a general, State-wide parks fund from which it may be used to support any number of other facilities. Thus, for purposes of this motion only, the Court finds that the payment referenced in paragraph 2(e) of the amended complaint constituted a “charge” which would trigger the operation of section 6(d) of the Recreational Use of Land and Water Areas Act.

It is therefore ordered that Respondents motion to dismiss Claimants amended complaint is denied.

OPINION

Sommer, C.J.

This claim returns before the Court on Respondents second motion to dismiss. The complaint filed herein alleges that Claimant was rendered a quadriplegic when he dove into a portion of Clinton Lake where swimming was not permitted. Respondents initial motion to dismiss pursuant to the Recreational Use of Land and Water Areas Act (745 ILCS 65), was denied inasmuch as Respondent had charged Claimant a fee to use the lake.

The instant motion to dismiss is grounded on Buchereles v. Chicago Park District (1996), 171 Ill. 2d 435, 665 N.E.2d 826, which held that a landowner owes no duty to protect or warn against possible injuries from the open and obvious risks associated with diving into water of unknown depth. The Buchereles court wrote:

“In cases involving obvious and common conditions, such as fire, height, and bodies of water, the law generally assumes that persons who encounter these conditions will take care to avoid any danger inherent in such condition. The open and obvious nature of the condition itself gives [warning of potential harm] and therefore the risk of'harm is considered slight; people are expected to appreciate and avoid obvious risks.
* * *
‘[A] reasonable adult * * * would recognize that an attempt to execute a headfirst * * * dive into [a] lake, without prior awareness of the depth of the waters, might result in severe injury from hitting ones head on the lake bottom, [citation omitted]’ [T]he danger involved * * * ’is open and obvious ” * Buchereles, 171 Ill. 2d at 448 and 453, 665 N.E.2d at 832 and 834-35, quoting partially from Dowen v. Hall (1st Dist. 1989), 191 Ill. App. 3d 903, 548 N.E.2d 346.

Here, Claimant specifically intended to dive into the water. Yet, from the record before us, he apparently did so without attempting to ascertain the waters depth and without any basis to assume that it was safe for swimming, let alone for diving.

Inasmuch as the dangerous nature of diving under these circumstances was open and obvious to Claimant, Respondent owed Claimant no duty to protect him from any dangers associated with his dive. It is therefore ordered that Respondent’s motion to dismiss is allowed, and this claim is dismissed with prejudice.

        Miller v. United States (7th Cir. 1979), 597 F.2d 614.


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (No. 94-CC-0131
    Andre Pinnick, Claimant, v. The State of Illinois, Sheridan Correctional Center, Respondent.

      Opinion filed November 10, 1997.

    Kipnis, Kahn & Bruggeman, Ltd. (Claude B. Kahn, of counsel), for Claimant.
    James E. Ryan, Attorney General (Paul Ciastko, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This matter comes to be heard on the claim of Andre Pinnick for personal injuries sustained in an incident on June 2, 1993. The Claimant, Andre Pinnick (hereinafter “Pinnick”), seeks compensation for injuries to his person incurred while he was a prisoner of the State of Illinois in Sheridan Correctional Center. Specifically, the Claimant Pinnick asserts that the States failure to adequately maintain the electrical outlet in his cell and/or to repair said outlet despite proper notice of its defective condition caused certain events to be put into motion, the end result of which was that he sustained serious bums to the area of his right thigh.

The details surrounding the actual incident are decidedly one-dimensional since only the Claimant and his cellmate, Christopher Nowling, testified as to the occurrence itself and the events immediately preceding and following said occurrence. Officers Michael Morris and Mr. Darryl Thompson, both employees of Sheridan at the time of the occurrence, offered very litde insight with regard to the issues in controversy. The only concrete information forwarded was that upon their review of the written records, no written request for repair of a defective outlet was filed by the inmates of cell 31 or the personnel of building C17.

Essentially undisputed, though is the following. On June 2, 1993, the Claimant was a resident of cell C-31 in building C17 at Sheridan Correctional Center, along with Christopher Nowling. On that date, at around 10:30 p.m., Claimant was using a “hot pot” to cook some macaroni. The area used to cook was a shelf above the desk in the cell and next to the toilet. The activity of cooking with a hot pot by an inmate in his own cell was allowed by the correctional facility. Claimant stated that the hot pot he was using did not work correctly, and specifically stated that he was unable to control the temperature other than by unplugging the machine and letting it cool down when it invariably overheated. This was corroborated by witness Nowling. Significantly, Claimant admitted that he understood the hot pot was defective when he was using it on June 2,1993.

While cooking his macaroni, Claimant testified that the hot pot began to boil over, requiring him to unplug it. After the hot pot settled down (a period of three to five minutes), Pinnick attempted to plug it back in. It is unclear whether he attempted to put the plug back into the outlet or the plug back into the receptacle on the hot pot. According to Claimant, when he attempted to do so, he “got a shock, and [he] heard a dzzzz, dzzzz, a popping noise and then * * * jumped back.” When he jumped back, the hot pot fell from the shelf onto his lap.

Pinnick sustained various bums to the upper part of his right leg with resultant permanent scarring on his right thigh, as depicted by Claimants photographic exhibits. These are the injuries for which he seeks compensation.

In the eyes of this Court, the issues presented are threefold: (1) Did the State breach its duty to provide a reasonably safe environment for the inmates, including Claimant, in its custody — specifically, was the outlet in the cell of Claimant defective or dangerous and did the State have proper notice of said deficiency but fail to timely correct it; (2) Did the defective outlet cause or contribute to cause the injuries of the Claimant; and, (3) Did the Claimant assume the risk of his injuries and exercise due care in his own actions that led to his injuries.

On the first issue, this Court finds it likely that the outlet in Claimants cell was defective and dangerous and the State failed to seasonably repair said deficiency despite proper notice; thus arguably the State has breached a duty owed to the Claimant. The State of Illinois is not an insurer of the safety of inmates in its custody but it does have a duty to the inmates of its penal institutions to provide them with reasonably safe conditions. (LaMasters v. State (1981), 35 Ill. Ct. Cl. 90, 92; Reddock v. State (1978), 32 Ill. Ct. Cl. 611, 613.) There is ample evidence that the State had been notified on many occasions of the condition of the outlet (e.g., smoking, sparking and appliances shorting out), but had failed to timely correct the deficiency. This Court finds Claimant Pinnicks and witness Nowlings testimony credible in that one or both of them advised the various prison guards of their outlets problem. The lack of written documentation of these requests, while pertinent, does not obviate the reasonableness of the testimony and the probability that said requests were made repeatedly. However, this finding does not settle liability in this matter.

It is well-settled that if a Claimant is to recover for personal injuries, that Claimant must prove that the States breach of the above stated duty proximately caused his injuries. In the case at hand, neither the Claimant nor his sole “occurrence” witness can offer any insight as to how the hot pot was caused to leave the shelf. The only testimony on this issue is forwarded by the Claimant, wherein he testified that “it just fell off the stand” when he “jumped back.” Nowling testified that he heard a “pop” and “turned over * * * [and] seen macaroni stick to both thighs of Andre.” The testimony offered as to the proximate cause issue is severely lacking in specificity. For this reason alone, the claim of Pinnick could be denied.

However, notwithstanding said conclusion and merely for the sake of argument, this Court is willing to assume, by inference, that the pop and spark noted by Claimant more likely than not “caused” Pinnick to knock the hot pot onto his own lap, in order to fully address the third issue: assumption of risk.

It is significant that both the Claimant and witness Nowling testified that they had personal knowledge that serious problems existed with the outlet in their cell, yet they continued to use said outlet to provide power for their TV and hot pot. Nowling testified that he had problems such as sparks and smoking with the outlet “like almost every * * * all the time,” that the outlet would spark “most of the time when [they would] plug in an appliance” and that he had seen Pinnick have the same type of problem. Claimant Pinnick admitted he had seen Nowling have problems with the outlet on prior occasions and had problems with sparking and smoking from the outlet himself Testimony of this type raises serious concerns with the issue of assumption of risk. Eating macaroni and watching TV are not the type of activities that are guaranteed to inmates, but are merely privileges. Both Claimant and Nowling testified that they received three meals a day in the centers cafeteria and that they could supplement that with items bought from the commissary. It is clear that the use of the outlet is not essential to the basic well-being of these inmates. It is also abundantly clear that the decision to use the defective outlet was knowingly undertaken by the Claimant. In aggravation of this situation, the Claimant knowingly used a “defective” appliance in the “defective” outlet. Claimant cannot avoid the responsibility of showing due care for his own action when he prosecutes a claim before this Court. The State is not an insurer of all accidents or injuries that occur on its premises. (Gilmore v. State (1987), 40 Ill. Ct. Cl. 85.) This Court finds that Claimant has failed to show that he exercised due care, and, therefore, his claim must be denied.

Thus, even though the evidence presented raises an issue as to a breach of the duty of reasonable care and safety owed to Claimant Pinnick, this Court finds that Claimant Pinnick did not carry his burden of proving more likely than not that said breach proximately caused his injuries and furthermore, conclusively finds that Claimant Pinnick did not show that he exercised due care in his own actions which brought about his injuries.

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


author: JANN, J. JANN, J.

text:
    (No. 94-CC-0467
    Karen Hammonds, Claimant, v. The State of Illinois, Respondent.

      Order filed December 6, 1995.

      Order filed September 4, 1997.

    Sheila T. Kirchheimer, for Claimant.

      James E. Ryan, Attorney General (Joel Cabrera, Assistant Attorney General, of counsel), for Respondent.
   ORDER

JANN, J.

This cause coming on to be heard on the motion of Respondent to dismiss the claim herein; due notice having been given the parties hereto, and the Court being fully advised in the premises: The Court finds that the claim herein seeks damages for personal injuries allegedly sustained by Claimant on August 31, 1992, when Claimant walked into the store known as “Afterthoughts” and was struck when a large letter “O” fell from the sign.

We note that section 25 of the Court of Claims Act (705 ILCS 505/25) and section 790.60 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) require that any person who files a claim before the Court of Claims shall, before seeking final determination of his claim by this Court, exhaust all other remedies and sources of recovery whether administrative, legal or equitable. Section 790.90 of the Court of Claims Regulations is clear that failure to comply with section 790.60 shall be grounds for dismissal.

The leading case regarding the Court of Claims exhaustion of remedies requirement, Boe v. State (1984), 37 Ill. Ct. Cl. 72, is dispositive of the case at bar. In Boe, the Claimant was the mother of a passenger who was killed in an automobile which collided with an allegedly defective guardrail. Claimant sued the State but not the driver of the automobile, arguing “that Claimants should be given a certain latitude and discretion in determining whom to sue. From Claimants point of view, it probably did not seem reasonable to sue an uninsured 18-year-old boy with no assets.” (Id. at 75.) However, in rejecting Claimants argument, the Court stated that it does not “recognize any discretion on the part of Claimants to pick and choose whom they wish to sue.” Id. Quoting its prior watershed exhaustion of remedies case, Lyons v. State (1981), 34 Ill. Ct. Cl. 268, we stated:

“The requirement that Claimant exhaust all available remedies prior to seeking a determination in this Court is clear and definite in its terms. It is apparent to the Court that Claimant had sufficient time to both become aware of his other remedies and to pursue them accordingly. The fact that Claimant can no longer pursue those remedies cannot be a defense to the exhaustion requirement. If the Court were to waive the exhaustion of remedies requirement merely because Claimant waited until it was too late to avail himself of the other remedies, the requirement would be transformed into an option, to be accepted or ignored according to the whim of all Claimants. We believe that the language of section [505/25] of the Court of Claims Act [cite omitted] and [Section 790.60] of the Rules of the Court of Claims quite clearly makes the exhaustion of remedies mandatory rather than optional.” 34 Ill. Ct. Cl. at 271-272; quoted in 37 Ill. Ct. Cl. at 75, 76.

These principles were also utilized in our dismissal of the case of a mental health patient who had allegedly been raped by a fellow patient at a State mental health facility. The Court held that Claimant failed to exhaust her remedies by not pursuing civil action for damages against the assailant. Doe v. State (1987), 43 Ill. Ct. Cl. 172.

We find that, as in Boe, the instant Claimant was aware of the existence of a liable party, Afterthoughts, long before the statute of limitations for an action against it had run. In fact, she worked at the store.

We hold that it remains incumbent on Claimant herein to exhaust her remedies before seeking final disposition of her claim in this Court. By not pursuing any remedy which may have been derived from Afterthoughts, Claimant has thus failed to comply with section 25 of the Court of Claims Act, supra, and section 790.60 of the Court of Claims Regulations. Section 790.90 of the Court of Claims Regulations provides that failure to comply with the provisions of section 790.60 shall be grounds for dismissal.

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

ORDER

JANN, J.

This cause comes on to be heard on Respondents motion to dismiss. Claimant has responded and filed a supplemental response. Respondent has filed a supplemental reply brief in support of its motion. The Court being fully advised in the premises herein finds:

Respondents motion is based upon failure to exhaust remedies pursuant to section 790.60 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) and section 25 of the Court of Claims Act. (705 ILCS 505/25.) Careful review of the parties’ submissions herein result in the following findings:

1. Claimant’s complaint was filed on August 31,1993. The Claimant herein seeks damages for personal injuries allegedly sustained on August 31, 1992, when Claimant walked into the store known as “Afterthoughts” and was struck when a large letter “O” fell from the sign.

2. Respondent alleges Claimant has failed to exhaust remedies against Afterthoughts Boutique and/or F.W. Woolworth Co. Respondent alleges it is the tenants (Afterthoughts’) duty to keep the sign in good condition according to section 10.01 of the lease which states: “Affirmative Covenant. Tenant shall: (a) keep the Premises, including fixtures, displays, show windows, floors and signs, clean, neat, sanitary and safe and in good order, repair and condition (including all necessary replacements, painting and decorating) * * The complaint also refers to the sign as a fixture. Section 7.05 of the lease, Structural Building Systems Maintenance, states, “Except for those portions of any utility distribution system installed by or on behalf of Tenant for its exclusive use, including fixtures, piping, vents, ducts, wiring, conduit, thermostats and all equipment which is a part thereof, Landlord shall use reasonable efforts to cause the State to keep all structural elements and systems of the Shopping Center, including foundations, floor slabs, stairs, escalators, elevators, exterior windows, heating, ventilating and air conditioning systems not serving the Premises exclusively, and plumbing and wiring, in repair and maintained in a condition consistent with similar facilities in first-class enclosed shopping malls in the Chicago metropolitan area.”

3. Claimant argues that the sign in the storefront was installed by the landlord and subject to the control of the landlord. The Claimant alleges the sign was defectively installed by the landlord and the landlord had a duty to install it properly; therefore, the landlord is liable. This allegation is not supported by proof.

4. The affirmative covenant referenced in paragraph 3 expressly states it is the duty of the tenant to keep a sign in good repair and condition. A covenant is an agreement to do or not do a particular act and the parties have agreed in the affirmative covenant that the tenant will keep the sign in good repair. Also in section 10.01 of the lease the tenant shall: “defend and save the Landlord * * * harmless and indemnified from all liability, injury, loss, cost, damage and expense in respect of any injury to any person, and damage to, or loss or destruction of any property while on the Premises or any other part of the Building occasioned by any act or omission of Tenant * * *.”

5. The Claimant alleges the State of Illinois had a nondelegable duty to maintain its property. Because of the alleged nondelegable duty the Claimant alleges the State would be the appropriate party to sue. We disagree as regards exhaustion of remedies. The State of Illinois does have a duty to maintain the premises in a reasonably safe condition for persons who are legitimately on those premises. (Owens v. State (1989), 41 Ill. Ct. Cl. 109.) However, the State is not the insurer of the safety of its invitees. (Heiman v. State (1977), 32 Ill. Ct. Cl. 111; Fausch v. State (1989), 42 Ill. Ct. Cl. 175.) Since the duty to maintain the sign is that of the tenant, the Claimant has failed to exhaust all remedies. The lessee is not held harmless by the State and is a viable joint tortfeasor.

The leading case regarding the Court of Claims exhaustion of remedies requirement, Boe v. State (1984), 37 Ill. Ct. Cl. 72, is dispositive of the case at bar. In Boe, the Claimant was the mother of a passenger who was killed in an automobile which collided with an allegedly defective guardrail. Claimant sued the State but not the driver of the automobile, arguing “that Claimants should be given a certain latitude and discretion determining whom to sue. From Claimants point of view, it probably did not seem reasonable to sue an uninsured 18-year old boy with no assets.” (Id. at 75.) However, in rejecting Claimants argument, this Court stated that it does not “recognize any discretion on the part of Claimants to pick and choose whom they wish to sue.” Id.

We find that, as in Boe, the instant Claimant was aware of the existence of a liable party, Afterthoughts, long before the statute of limitations for an action against it had run.

We hold that it remains incumbent upon Claimant herein to exhaust her remedies before seeking final disposition of her claim in this Court. Failure to pursue any remedy which may have been derived from Afterthoughts resulted in a failure to comply with section 35 of the Court of Claims Act, supra, and section 790.60 of the Court of Claims Regulations. Section 790.90 of the Court of Claims Regulations provides that failure to comply with the provisions of section 790.60 shall be grounds for dismissal.

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


author: Mitchell, J. Mitchell, J.

text:
    (No. 94-CC-0594
    Roosevelt Clay, Claimant, v. The State of Illinois, Department of Corrections, Respondent.

      Order filed November 18, 1996.

      Order filed July 7, 1997.

    Roosevelt Clay, pro se, for Claimant.
    James E. Ryan, Attorney General (Diann K. Marsalek, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

Claimant brings this cause of action as an inmate of the Illinois Department of Corrections seeking compensation for items of personal property allegedly lost during a transfer between institutions.

The Claimants complaint alleged that on March 30, 1993, he was transferred from Menard Correctional Center to Graham Correctional Center. The segregation unauthorized personal property receipt dated March 30, 1993, indicated one gold chain and star.

On June 8, 1993, Claimant was transferred from Graham Correctional Center segregation unit to the Joliet Correctional Center. The property inventory record dated June 8,1993, indicated one gold chain and star.

Upon receipt of his property at the Joliet Correctional Center, Claimant discovered that the gold chain had not been received.

Claimant described the chain as a 24-inch long gold chain valued at $1,175 and the star as two inches thick, valued at $350 for a total claim of $1,525.

Claimant filed a grievance with the Administrative Review Board. The grievance was denied. The Review Board acknowledged that the property had apparently been lost in transit, but found that Claimant did not have authority to possess the items and concluded that reimbursement would be inappropriate.

On cross-examination Claimant admitted that he did not have a permit for the jewelry and acknowledged that policy dictated that a permit was required for jewelry valued in excess of $50. However, Claimant said that the policy is not enforced.

In essence, Claimant admitted that he did not have authority to possess the necklace. However, he contends that he should have been afforded the opportunity to authorize that the property be shipped home.

The Respondent offered their departmental report and did not produce any witnesses.

At the close of testimony, Claimant requested the opportunity to write a brief in support of his position. A briefing schedule was established, but briefs were never filed.

The law is clear. The burden rests upon the Claimant to prove by a preponderance of the evidence, that the missing property was, in fact, delivered to the agents of Respondent, that the Respondent did not utilize reasonable care to insure its return and the value of the property. (Doubling v. State (1976), 32 Ill. Ct. Cl. 1, 2.) Where Respondent inventories items and takes exclusive possession of them a bailment is created and where there is a subsequent loss of, or damage to, the bailed property while in the bailee’s possession a presumption of negligence is raised which the bailee must rebut by evidence of due care. Veal v. State (1990), 41 Ill. Ct. Cl 170, 171; Arsburg v. State (1978), 32 Ill. Ct. Cl. 127.

The undisputed facts establish Respondent was in exclusive possession of the Claimant’s necklace as is evidenced by the personal property inventories and further that the items were never received by the destination institution. Claimant has raised the presumption of the State’s negligence and the State did not present any evidence of due care to rebut the presumption.

The Court must conclude that the Respondent was negligent. However, the next issue is whether Claimant was entitled to possess the gold chain. Respondent established that Claimant was entitled to possess jeweliy not exceeding $50 in value. Claimant admitted that he was aware of the policy. Clearly Respondent cannot be required to appraise or assess values on all of the personal property of the inmates. If, in fact, the necklace was valued in excess of $50, it was the burden of the Claimant to advise the Respondent of the high value of the item and obtain the required permit or authorize transport of the item. Claimant did neither.

Therefore, the Court must conclude the State’s negligence. However, the Respondent’s liability should not exceed the highest value of the item the Claimant was legitimately entitled to possess.

The Court awards Claimant $50.

ORDER

Mitchell, J.

This matter comes before the Court on Claimant’s request for review dated January 15, 1997 and filed Januaiy 27, 1997. After having reviewed the “notice of appeal” as a request for review, the Court hereby denies said request and reiterates its order entered November 18, 1996 awarding the Claimant the amount of $50.


author: Raucci, J. Raucci, J.

text:
    (No. 94-CC-1158
    Marvin A. Brustin, Ltd., Claimant, v. The State of Illinois, Respondent.

      Order filed December 26, 1997.

      Order on petition for rehearing filed April 6, 1998.

    Marvin A. Brustin, Ltd., pro se, for Claimant.
    James E. Ryan, Attorney General (Michael F. Rocks, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause coming on to be heard on the Respondents motion to dismiss and the Claimants motion for leave to file an amended complaint, the Court being fully advised in the premises, the Court finds:

1. This is a contract action against the Regional Board of School Trustees of Cook County, Illinois, for payment for legal services performed by Claimant.

2. The Regional Board has been statutorily abolished, and no longer exists. At the time that it existed, it was not an agency of the State of Illinois, and the State is not liable for its debts.

3. Claimants proffered amended complaint is of no aid to Claimant since the Regional Board is not a State agency, and this claim is not within the jurisdiction of the Court of Claims.

It is therefore ordered:

A. The Claimant’s motion for leave to file an amended complaint is denied.

B. The Respondent’s motion to dismiss is granted, and this claim is dismissed and forever barred.

ORDER

Raucci, J.

This cause coming on to be heard on the Claimant’s petition for rehearing, the Court being fully advised in the premises, the Court finds:

On December 26, 1997, we dismissed Claimant’s claim. Claimant misapprehends the basis of our order. While we noted that the Regional Board of School Trustees of Cook County had been abolished by the General Assembly, the abolishment of the Board was not the basis of the dismissal. The basis of the dismissal was that “[a]t the time that it existed, it was not an agency of the State of Illinois, and the State is not liable for its debts.” Order of December 26, page 1.

Claimant maintains that the Board is an agency of the State since it was created by the legislature, and that cases have held that the changing of school boundaries by county boards of school trustees “is a legislative act, and that in performing this function the County Board of School Trustees is acting as an agent of the legislature.” Petitioner’s Petition for Rehearing, page 2.

Many instrumentalities of government are created by the legislature including municipalities, school districts, the Illinois Sports Facilities Authority, the Illinois Housing Development Authority, and others. But the fact that they are created by the legislature does not make them agencies of the State. The Regional Board of School Trustees of Cook County was never an agency of the State of Illinois.

We have no jurisdiction of this claim. It is therefore ordered that the Claimants petition for rehearing is denied.


author: Epstein, J.

text:
    (No. 95-CC-0425
    Keller Construction, Inc., Claimant, v The State of Illinois, Respondent.

      Opinion filed April 6, 1998.

    Burroughs, Hepler, Broom, MacDonald & Hebrank (William J. Knapp, of counsel), for Claimant.
    James E. Ryan, Attorney General (Guy A. Studach, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

In this breach of contract claim against the Department of Transportation (“IDOT”), the Claimant contractor seeks $37,905 in additional compensation for installation of sheet piling that was required for “railroad protection” for the Clark Bridge construction project in Alton, Illinois. This “railroad protection” claim, which arises largely on the standard provisions of IDOT construction contracts, is before us for final decision following trial to our Commissioner, Patrick Hanley. This appears to be the first “railroad protection” construction contract claim to be decided by this Court.

Nature of the Claim

The dispute in this case is over labor and material charges for sheet-piling installation that was required for the protection of railroad traffic and structures adjacent (and under) the bridge construction project that was the subject of Claimants contract with IDOT. This temporary sheet piling for “railroad protection” was not set forth in the contract bid specifications, and was not computed as a cost element of the Claimant’s winning contract bid to IDOT. The piling was required as excavation protection by the railroad’s engineer — after the Claimant’s work had commenced — under the railroad protection provisions of IDOT’s standard specifications, which are incorporated into virtually all IDOT road and bridge construction contracts:

“§105.02 Authority of Railroad Engineer. Whenever the safety of railroad traffic during construction is concerned, the Railroad Engineer will have jurisdiction over safety measures to be taken and his/her decision as to methods, procedure and measures used shall be final, and any and all Contractors performing work near or about the railroad shall be governed by such decision. Instructions to the Contractor by the Railroad Engineer shall be given through the Engineer. Unless otherwise specified, all costs incurred in conforming to the requirements, specified herein, shall be considered as incidental to the contract and no additional compensation will be allowed.”

The Claimant contends that this sheet pile installation, which was not called out in the contract specs, was a contract “extra” that requires additional compensation under the “Extra Work” provision of IDOT’s Standard Provisions:

“§101.15 Extra Work. An item of work not provided for in the contract as awarded but found essential to the satisfactory completion of the contract within its intended scope as determined by the Engineer.”

Claimant also contends, alternatively, that IDOT, by its custom and practice of specifying the “railroad protection” work in its bid documents and of paying for such work (either as part of the bid price or as extra compensation) in cases where it failed to specify the particulars, has waived its rights under section 105.02. Claimant also asserts, alternatively, that IDOTs custom and practice of prior payment to this contractor, as well as its prior practice of specifying the railroad protection work, effects an estoppel against IDOTs invocation of section 105.02.

The Facts

Claimant was awarded the Clark Bridge approach construction contract (IDOT Contract No. 96294) pursuant to its low bid on June 10, 1991. At the time of the bidding, adjacent railroad tracks were scheduled to be relocated at the bridge site, and the railroad relocation plans were included in the bid drawings, although the timing of the railroad relocation project was unspecified. As planned and as ultimately constructed, the new Clark Bridge spanned over the relocated railroad tracks and the approach that was constructed by the Claimant.

Although the IDOT bid plans and specifications did show the specific plans for the railroad track relocation, IDOTs bid plans and specifications did not specifically call for the use of sheet piling (or any other method) to protect railroad property during the bridge/approach construction. When the Claimant’s work commenced, the railroad construction had not yet progressed to where bridge construction would interfere with the railroad. The Claimant did not include sheet piling for railroad protection in its bid.

After construction began, it became necessary for the Claimant to provide protection to the railroad relocation. After long negotiation with the engineer of the Norfolk & Southern Railroad, Claimant was directed to install temporary sheet piling to protect the railroad tracks (pursuant to the authority provided by section 105.02 and section 107.12 of the IDOT standard provisions). Claimant installed a sheet pile wall 95 feet long and 21 feet deep. After the contract was performed, the Claimant submitted its final billing, including $37,905 as an extra work item for the sheet piling (computed at $19/square foot, the contract pay item rate for such work) that was not included in the bid but was used on the project as mandated by the railroad. The Department refused to pay, based on its finding that the sheet piling was not an extra item but was an incidental item to be included in the bid price under section 105.02. This claim ensued.

The Trial; Evidentiary Rulings

A hearing was held on November 26, 1995 and March 19, 1996 before Commissioner Hanley, who filed his report to the full Court.

Testimony was presented by Richard Call, IDOT studies and plan senior squad leader; Bobby D. Martin, IDOT railroad technician; Larry Lipe, IDOT estimating technician; Alan Goodfield, IDOT engineering geologist in its bureau of bridges and structures; Jerry Wibbenmeyer, IDOT supervising field engineer; Dale Klohr, IDOT District 8 Engineer for District 8; Jerry Hamam, Claimants EEO officer, safety officer and corporate secretary; William Ulivi, IDOT supervisor in its department of planning.

Much of the testimony concerned contract interpretation and administration matters, but the IDOT witnesses did acknowledge that they had intended to include specific railroad protection material — warnings that it would be necessary in the Clark Bridge project at a minimum, if not actual work specs — and that their omission of such references was an unintentional mistake. The testimony also showed, without dispute, that during the approximate 28 days that the bidders had to formulate their bid submissions, it was virtually impossible to obtain a definitive “railroad protection” plan from this or any railroad involved.

Numerous documents were also admitted into the record, including a memorandum written by Richard Call, a copy of the contract and plans for the Clark Bridge project, plans for other jobs, excerpts from the Stanford Specifications for Road and Bridge Construction, the preconstruction conference report letters from the railroad, and letters to and from the Claimant.

Evidence of other IDOT construction contracts with this Claimant and with other contractors, and of the payment treatment accorded to various railroad protection work under those contracts, as well as testimony about IDOTs practices in this area, was admitted by the Commissioner over IDOTs objections on relevance grounds primarily. Although the evidence adduced by these documents and testimony fell short of what Claimant proffered as its justification — i.e., a consistent pattern of established custom and practice by IDOT — and although this Court does not agree with the threshold basis for admission of this parol evidence as bearing on the construction and application of section 105.02 and section 101.15 of the contract Standard Specifications — i.e., that those provisions are ambiguous in the classic sense — we will allow the evidence and affirm the Commissioners ruling as within his and our discretion.

First, there is just enough lack of clarity as to the relationship and interaction between the two competing Standard Specification provisions (section 105.02 and section 101.15) to justify parol evidence of actual practice by IDOT, which wrote and administers these provisions; second, the proffered custom and practice evidence is germane to the Claimant’s waiver and estoppel theories which were in the case; and finally, the evidence as proffered if not as delivered was potentially helpful to this Court in construing recurring Standard Specification of IDOT contracts. The evidence was properly admitted.

Analysis

On this record, neither party has covered itself with righteousness or reasonableness.

For its part, the Claimant plainly disregarded the prospective or possible need to supply railroad protection. Although the specifics were unstated, and although there was a chance that the sequencing of the railroad and bridge projects might moot the need for railroad protection, the Claimant was affirmatively put on notice of the proximity of the railroad and its imminent relocation to the bridge construction site by IDOT’s bid documents. Thus the Claimant plainly determined — and presumably made a business decision — to take its chances on the railroad protection aspect of the project and not to include a contingency amount for this item in its bid.

We nevertheless accept Claimant’s point that in the absence of specifications of any railroad protection in IDOT’s bid documentation, and given the short time available before the bid deadline, Claimant could not timely obtain a definitive or authoritative answer — from the railroad engineer — as to the cost of railroad protection. Similarly, it is possible, although the record is less clear on this point, that the bidder could not ascertain from the railroad the likely schedule of the railroad relocation project (so as to determine the probability of actually needing railroad protection) during tire critical 28-day, pre-bid period.

On this analysis, the Court concurs with the Claimant that, to the extent of the railroad protection element of this project, IDOT sought and obtained blind bids: the bidder(s) could only guess and take some degree of chance on this aspect of the job. However, that applied equally to all bidders and does not uniquely prejudice the Claimant.

Claimant maintains, however, that such was not the contractual intent and should not be the result imposed by this Courts interpretation of the contract provisions. Claimant further maintains that it relied on its understanding of IDOT practice, i.e., to reimburse contractors for unspecified railroad protection as a contract “extra.”

For its part, and although the evidence was not systemic, IDOT has been shown to have a strikingly inconsistent bidding practice in regard to railroad protection. The evidence in this record shows IDOT to be inconsistent in sometimes including detailed railroad protection specs, and sometimes — as in this case — not. Similarly, the pattern is imperfect as to paying for such work, although the handful of contracts introduced into this record makes us wary to draw definitive conclusions. But once this record was opened, below, to parol evidence of IDOT practices, neither side established a consistent IDOT practice with regard to paying for unspecified railroad protection or with regard to treating this element as a part of the original bid or as a separate “extra.” It is also provocative that IDOT witnesses could neither explain, nor justify as policy, the inconsistent contract administration practices as to railroad protection.

In the absence of a consistent pattern of practice that might rise to the level of an actual or constructive administrative interpretation of these Standard Specification terms, and in the face of an affirmative (if undesired) showing of inconsistent practice, the Court must reject Claimant’s waiver and estoppel arguments and revert the analysis to the language of the governing contract provisions, which thus become the stopping point as well as the starting point of the analysis.

In rejecting Claimant’s estoppel defense to the section 105.02 clause, we must also observe that the estoppel defense is predicated, in part, on the notion that Claimant reasonably relied on the contract specifications — i.e., on their omission of railroad protection specs. In light of the provisions of section 105.02 and the presence of the railroad relocation plans in the bid package, we are unprepared to find that Claimant’s reliance on the omission of specific protection plans was reasonable or (equivalently) that Claimant had a right to rely on such omission for this purpose.

Turning first to the terms of section 107.12 and section 105.02, which Respondent contends are the dispositive provisions, we find it impossible to agree with Claimant’s contention that the language is ambiguous in any material respect — either on its face or as applied (standing alone) to railroad protection work that is not specified in the contract documents. The language is clear in two key respects at least: (1) that railroad protection work is to be specified/approved by the railroad engineer, not IDOT; and (2) that the cost of railroad protection is included in the bid price “unless otherwise specified” in the contract. That much, at least, is clear.

Turning next to the terms of section 107.12, we find no ambiguity on the face of this language, nor in its application to unspecified work generally.

Nevertheless we must agree that there is an element of uncertainty — but not necessarily of “ambiguity” in the classic multiple-meaning sense — in the interplay of section 105.02 (covering cost of railroad protection work) and section 107.12 (covering the cost of work “not provided for in the contract” initially but later required). On their face, the two sections both appear to apply to the unspecified railroad protection work that is the crux of this claim.

On closer analysis of the section 107.12 language, it is not so clear that the section 101.15 “Extra Pay” provision applies to railroad protection work in the first instance. Claimant assumes that the unspecified railroad protection work is covered by the section 107.12 phrase “work not provided for in the contract as awarded.” That turns on the meaning of “provided for,” which the Claimant implicitly — but not explicitly — equates to detailed specification in the contract documents. That is a plausible but nonexclusive reading of the phrase.

The phrase “provided for” is not identical to “specified” or “detailed” and has somewhat broader scope. As used in section 107.12, the arcane phrase “provided for” is akin to “required,” and does not obviously or readily connote any particular level of detail. In that sense of “required,” the phrase “provided for” appears to cover work that is then mandated (at the time of initial contracting) but is to be specified later in accordance with some mechanism or process contained (or “provided”) in the contract. That, of course, is precisely what is “provided for” by this contract in the case of “railroad protection” work, which is required by the contract at the time of bidding, but is delegated to the railroad engineer for later specification and approval. The narrow contract construction issue is whether “provided for” covers only specified work or also covers work requirements that are expressly imposed but in a different manner. Although it should not be necessary to engage in such pedantic exercises to ascertain the meaning of a standard provision in a State construction contract, we are constrained to find that “railroad protection” work is “provided for” in this contract within the plain, non-technical, meaning of the words involved.

This conclusion is buttressed by the Claimants acknowledgement at oral argument that the railroad protection work was required by the contract. We do not find any material difference in this context between “requiring” the work, “mandating” tire work and “providing for” the work, just to take the most obvious equivalent phraseology.

But even if we were to assume (arguendo) that section 107.12 covered the “railroad protection” work because it was delegated rather than detailed in the original contract documents, and thus were confronted with the contract interpretation issue whereby both section 107.12 and section 105.02 applied on their face to the disputed “railroad protection” work, the outcome would be the same.

If both section 107.12 and section 105.02 applied, but called for different results — section 107.12 requires extra compensation for “extra work” and section 105.02 designates the cost of this work as “incidental to the contract” and bars extra compensation — then there is a simple, straightforward and ancient rule of construction that settles this issue: the specific provision prevails, every time, over the general provision. We do not bother with citations of authority for such a fundamental and settled principle. This principle is as applicable as between competing “standard” contract provisions — as in this case — as it is between “standard” and individualized contract provisions. Here, section 105.02 is specifically applicable to unspecified railroad protection work, whereas section 107.12 is applicable generally to all unspecified work that later becomes required. In this contest, section 105.02 wins as the governing provision, and section 107.12 must defer.

Before concluding the analysis, however, there is one dangling argument — that focuses on one dangling contract phrase — that must be addressed. Claimant focuses on the exception to the “no additional compensation” provision in section 105.02, which reads: “Unless otherwise specified * * *.” (The full sentence is set forth above, in the “Nature of the Claim” section of this opinion.) Claimant argues, with considerable vehemence and some persuasion, that the reference to “otherwise specified” must or can refer to the “Extra Work” pay provisions of section 107.12 and its related pay provisions. Although this is a plausible reading, particularly in light of the convoluted language and inartful syntax and structure of IDOT draftsmanship, we are constrained to reject it for two reasons.

First, the plain meaning of the term “specified” requires something more than merely “providing for” — the flip side of our analysis above. Hence the “otherwise specified” exception of section 105.02 is not triggered by the generic “extra work” provisions of section 107.12. It would require another provision specifying compensation for the railroad protection work in order to supersede the “no extra compensation” proviso of section 105.02. Second, the Claimants interpretation of these two “standard specifications” would read into them a circularity that would render the “no extra compensation” provision of section 105.02 nugatory — which is a contract construction no-no. The Claimant’s reading of these sections would subordinate section 105.02 to the “extra work” provisions of section 107.12 in every contract, and thus section 105.02 would never apply. That is clearly neither the intent nor the sense of these standard contract provisions.

For the foregoing reasons, therefore, we must and do hold that under the terms of this contract, the costs of the later-designated railroad protection work ordered pursuant to section 107.12 and/or section 105.02 is incidental to the contract and is not subject to the extra work provisions of section 107.12 and related provisions. Based on this conclusion, we must reject Claimants claim for additional compensation under this contract.

Conclusion and Order

We observe that there are some hints of unfairness in the result that we find to be mandated by the contract analysis. There are overtones of guilt and acknowledgments of error in some of the IDOT staff testimony in this case, which may well be attributable to the avoidability of the result here if the contract specifications on the Clark Bridge project had been done as intended. But we are not a Court of equity and can only apply the law and the contract language as we find it. The Respondent is entitled to the contract bargain it made, and the Claimant is bound by the contract it signed.

The disturbing aspect of this case is the inconsistency with which IDOT seemingly treats this technical aspect of construction contracts, and the resulting disparity in treatment of contractors that can and, according to the evidence in this case, sometimes does occur. If contracts continue to be bid in the blind on “railroad protection,” tiren that practice under the current Standard Specifications— coupled with our decision today — will prompt contractors to build in some contingency for “railroad protection” in every contract on every project near railroad tracks. In Illinois that covers a lot of projects. Whether such a practice is good or bad for Illinois and its taxpayers is not a question for this Court. But it is a question that might be addressed by IDOT sometime.

For the reasons set forth above, it is hereby ordered: This claim is denied on its merits and forever barred. Judgment is entered for Respondent and against the Claimant.