text:
    (No. 84-CC-1118
    David A. Wedemeyer, Claimant, v. The State of Illinois, Respondent.

      Order filed March 19, 1991.

      Opinion filed June 2, 1993.

    Wimmer, Stiehl & Montalvo, P.C., for Claimant.

      Roland W. Burris, Attorney General (Patricia L. Hayes, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Burke, J.

Claimant, David A. Wedemeyer, filed his two-count amended complaint in the Court of Claims on February. 27, 1985. Count I alleges that the State of Illinois breached a contract with the Claimant through the “Illinois Lottery.” Count II alleges fraud on the part of the State of Illinois.

The case was tried and reviewed before a commissioner of the Court of Claims. The Court being fully advised in the premises finds the following:

The Facts: Claimant participated in the Illinois State Lottery’s Fantasy Game in June and July of 1983. The Fantasy Game involved the purchase of tickets with nine game squares covered with a removable silver coating. The purchaser of the ticket was to rub the coating off each of the nine game squares. If the purchasers ticket displayed three matching symbols in a row, once the silver coating was removed, he would be entitled to receive the prize indicated on the face of the ticket. The price of the tickets was $1.00. The game player could receive prizes ranging in value from a free $1 ticket to $100,000. Winners of certain prizes were also entered in a grand prize drawing for a $1,000,000 prize.

Claimant purchased tickets in the Fantasy Game in June and early July at the rate of approximately one per week. The Claimant testified that, on July 11, 1983, he was informed by Mrs. Smith of Smith Package Liquor that there were only two $100,000 winning tickets remaining unsold. Smith stated that most of the previous tickets had been distributed in the Chicago area and that those tickets were sold out. Smith stated that to her belief there was a good possibility that the Claimant might win a $100,000 ticket. Claimant testified that he had seen various brochures and advertisements published by the State of Illinois which placed the odds of randomly purchasing a $100,000 winner at 5,520,000 to one. Based upon the representations of Mrs. Smith that the odds of purchasing a winning ticket were increased, Claimant, by means unexplained, calculated his odds of purchasing a $100,000 winner at one in 7000. The Claimant testified that neither Mrs. Smith nor anyone else told him how many tickets remained unsold. The Claimant also testified that he never noticed any information concerning the number of tickets available upon the screen of the lottery computer at Smith Package Liquor.

Based upon Claimants recalculation of the actuarial tables, Claimant decided to purchase every ticket available at Smith Package Liquor. Over the next several days the Claimant purchased, with cash, 4,850 Fantasy Game tickets. Claimant was purchasing tickets at the rate of 250 to 300 per day.

Count I alleges that the State of Illinois, through the “Illinois Lottery,” offered to Claimant an opportunity to win a $100,000 grand prize in its Fantasy Game in exchange for his purchase of lottery tickets. Despite the fact that the last drawing for said Fantasy Game was held on or about July 8, 1983, it thereafter continued to advertise said Fantasy Game and continued to sell and authorize for sale tickets bearing the slogan, “Win $100,000 instantly.” Claimant in Count I alleges that he suffered damages in the amount of $3,850 which is the sum of money spent on lottery tickets following the awarding of the last $100,000 grand prize. Count II alleges fraud on the part of the State of Illinois, in that agents, servants and employees of the Respondent made untrue representations to the Claimant, Claimant justifiably relied on said statements, said statements were made for the purpose and intent of inducing the Claimant to purchase tickets for the game, and he justifiably relied on said misrepresentations, to his detriment.

The Law: Respondent adequately addresses Claimant s argument that fraud was perpetrated by the officer or agent of the State. The law is quite clear that when a State officer performs illegally and under authority which he does not have, the action lies against the officer and not against the State of Illinois. Sass v. Kramer (1978), 78 Ill. 2d 485, 381 N.E.2d 975; Smith v. Jones (1986), 113 Ill. 2d 126.

On the question of agency in general, this Court has held that the doctrine of apparent authority does not apply to the State of Illinois, and an agent without authority cannot bind the State of Illinois. (Ernat v. State (1984), 36 Ill. Ct. Cl. 82, 90; Bellini v. State (1982), 35 Ill. Ct. Cl. 701, 703.) It is clear from the transcript that there is no evidence or testimony of any misrepresentation by the State of Illinois, and if, in fact, any “puffing” for the purpose of inducing a sale was made, it was done by the selling agent without specific or apparent authority to so act. Thus, it is clear that Claimant has failed to provide the existence of an agency relationship so as to bind the State of Illinois.

Thus, it is hereby ordered that the Claimants claim be denied.

OPINION

Burke, J.

This claim is based upon a two-count complaint: Count I alleges that the State of Illinois, through the “Illinois Lottery,” offered to Claimant, in exchange for his purchase of lottery tickets, an opportunity to win a $100,000 grand prize in its Fantasy Game despite the fact that the last drawing for said Fantasy Game was held on or about July 8, 1983. Thereafter, the Illinois lottery continued to advertise said Fantasy Game and to sell and authorize the sale of tickets bearing “Win $100,000.00 instantly.” Claimant alleges that he suffered damages in the amount of $3,850 which is the sum of the money spent on lottery tickets following the awarding of the last $100,000 grand prize.

Count II alleges fraud on the part of the State of Illinois, in that their agents, servants and employees made untrue representations to the Claimant, Claimant justifiably relied upon said statements, said statements were made for the purpose and intent of inducing the Claimant to purchase tickets for the game, and he justifiably relied on said misrepresentations to his detriment.

In June and July of 1983, Claimant participated in the Illinois State Lotterys Fantasy Game. The Fantasy Game involved the purchase of tickets with nine game squares covered with a removable silver coating. The purchaser of the ticket was to rub the coating off each of the nine game squares. If the purchasers ticket displayed three matching symbols in a row once the silver coating was removed, he would be entitled to receive the prize indicated on the face of the ticket. The price of the tickets was $1.00 each. The game player could receive prizes ranging in value from a free $1 ticket to $100,000. Winners of certain prizes were also entered in a grand prize drawing for $1,000,000.

Claimant purchased tickets in the Fantasy Game in June and early July at the rate of approximately one per week. On July 11, 1983, Mrs. Smith of Smith Package Liquor told Claimant that there were two $100,000 winning tickets remaining unsold. Mrs. Smith stated that most of the previous tickets were distributed in the Chicago area and that those tickets were sold out and that to her belief, there was a good possibility that the Claimant might win a $100,000 ticket. Claimant testified that he had seen various brochures and advertisements published by the State of Illinois which placed the odds of randomly purchasing a $100,000 winner at 5,520,000 to one; however, based upon the representations of Mrs. Smith, the odds of purchasing a winning ticket were increased. Claimant, by means unexplained, calculated his odds of purchasing a $100,000 winner at one in 7000. Neither Mrs. Smith nor anyone else told Claimant how many tickets remained unsold and he never saw any information concerning the number of tickets available upon the screen of the lottery computer at Smith Package Liquor. Claimant became determined to purchase every ticket available at Smith Package Liquor. Over the next several days the Claimant purchased 3,850 Fantasy Game tickets, at the rate of 250 to 300 per day.

When fraud is perpetrated by an officer or agent of the State and said officer or agent performs illegally and under authority which he does not have, the action lies against the officer and not against the State of Illinois. (Sass v. Kramer (1978), 78 Ill. 2d 485, 381 N.E.2d 975; Smith v. Jones (1986), 113 Ill. 2d 126.) This Court has held that the doctrine of apparent authority does not apply to the State of Illinois, and an agent without authority can not bind the State of Illinois. (Ernat v. State (1984), 36 Ill. Ct. Cl. 82, 90; Bellini v. State (1982), 35 Ill. Ct. Cl. 701, 703.) It is clear that there is no evidence or testimony of any misrepresentation by the State of Illinois, and if, in fact, any “puffing” for the purpose of inducing a sale was made, it was done by the selling agent without specific or apparent authority to so act. It is, therefore, clear that Claimant failed to prove the existence of an agency relationship so as to bind the State of Illinois. Additionally, the Claimant continued to purchase lottery tickets with an opportunity to win other prizes although the large prize category may have been fully claimed. To find a breach of contract on the part of the State because of the depletion of one prize category would, in effect, defeat the intended purpose of the lottery game.

That Claimant may have relied unreasonably upon the statements of a person not authorized to speak for the State is insufficient to support a cause of action against the State of Illinois.

It is hereby ordered that this claim is denied.


source: Caselaw Access Project

author: Frederick, J.

license: Public Domain

text:
    (No. 84-CC-2828
    Rafael Gonzalez, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 31, 1992.

    Jordan Teplitz, Ltd. (Joel M. Bell, of counsel), for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant brought this action against the State of Illinois for injuries suffered as a result of a stabbing incident which took place on April 19, 1982, in the office of the Illinois Department of Public Aid located at 412 N. Milwaukee Avenue in Chicago, Illinois. On that date, Mr. Gonzalez was waiting to be processed by the employees of the State when an individual by the name of Irving Jordan stabbed him in the stomach and arm. The cause was tried by the commissioner assigned to the case.

Mr. Gonzalez testified that he had been on the premises for some time when he noticed an unknown individual having a disagreement with the security guard on the premises. The unknown person was Irving Jordan. The State of Illinois, according to the evidence, contracts for private security guards to maintain order on the premises of the Department of Public Aid. The Claimant does not know whether or not the assailant was on the scene at the time Claimant first arrived, but he noticed him at approximately 10:00 or 10:30 a.m. Claimant characterized Mr. Jordans behavior as being somewhat crazy, but there was no indication that Mr. Jordan was doing anything other than talking. About one-half hour after the security guard talked to Mr. Jordan, Mr. Jordan appeared immediately in front of the Claimant and took out a knife and simply started stabbing Mr. Gonzalez. He stabbed Claimant in the chest, thigh and hand. At that point, people started yelling, the security guard came running over, pulled his gun and forced Mr. Jordan to drop the knife. There is no evidence that anyone on the premises, including the employees of the State or the security guards, had knowledge that Mr. Jordan had a knife or any type of weapon during the time he was on the premises.

The State called two witnesses, Eugene Gersch and Kenneth Meyr. Mr. Gersch is an employee of the Department of Public Aid and he was essentially in charge of the 100 or so employees who were at the Milwaukee office on that day. He testified to the routine used for the security guard to bring unruly customers to his office. Whatever problems Mr. Jordan had had with the security guard did not cause the guard sufficient reason to bring Mr. Jordan to see Mr. Gersch. Mr. Meyr has been an eligibility assistance worker for 17 years. He noticed a commotion and saw people moving quickly. He observed the guard with his gun pointed towards the gentleman with the knife. He did not observe anything in the office unusual prior to Claimant being stabbed.

The State of Illinois has a duty to maintain its premises under its control in a reasonably safe condition for persons who are legitimately on those premises. (Owens v. State (1989), 41 Ill. Ct. Cl. 109.) The Claimant was legitimately on the State s premises and the State owed him a duty to maintain the premises in a reasonably safe condition. However, a legal duty requires more than the mere possibility of an occurrence and the State is charged with a duty only when the harm is legally foreseeable. Wilson v. State (1989), 41 Ill. Ct. Cl. 50.

The issues of foreseeability and duty involve a myriad of factors. It is the finding of this Court in reviewing those factors that the State had no legal duty to Claimant in regard to the unforeseen actions of the assailant in this case.

The State is not an insurer of all accidents or injuries that occur on its premises. Gillmore v. State (1987), 40 Ill. Ct. Cl. 85; Berger v. State (1988), 40 Ill. Ct. Cl. 120.

The Claimant has failed to prove that the State breached a legal duty owed to Claimant. Under the “public duty” rule, a police officers duty to enforce the law is a duty owed to the public generally and not to specific persons. A police officer is generally not liable when he fails to do his duty in enforcing a law. However, under the facts of this case, we find there was no duty to arrest or remove Mr. Jordan from the premises prior to the attack on Claimant.

For the reasons heretofore stated, it is the decision of the Court that this claim be and hereby is denied.


author: Burke, J. Burke, J.

text:
    (No. 85-CC-1292
    Donald Nelsen, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 8, 1991.

      Order filed December 18, 1992.

    Goldman & Marcus, for Claimant.
    Roland W. Burris, Attorney General (Erin O’Connell, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

The Claimant, Donald Nelsen, brings this action against the State of Illinois to enforce an employment/enlistment contract and seeks compensation for the period from September 18, 1981, to date, for wages, accumulated sick-leave pay, uniform allowance, vacation credits, retirement credits, as well as reimbursement for medical and dental expenses incurred by Claimant during the period that same were available to employees.

Claimant alleges that on or about September 18,. 1981, he was hired into a battalion of the Military and Naval Department of the State of Illinois, and more particularly, the 508th Medical Company; that, through interviews and discussions with Major Thompson at the Chicago Avenue Armory in Chicago, he was directed and did take all the necessary physical tests and completed all enlistment and application records. Claimant further alleges that he worked on September 18, and when he reported back the next day, he was advised that he would not be re-employed which constituted improper termination of his employment.

Respondent filed a motion to dismiss for lack of jurisdiction and this Court ruled on July 23, 1990, that there was an employment agreement with a State agency rather than the Federal government as Claimant did not take an oath of enlistment which was necessary for enlistment into the National Guard, and Respondents motion was denied.

The sole issue presented is whether the Claimant was appointed to a position with the Illinois National Guard and if so, was he entitled to the aforesaid back pay because his employment was improperly terminated.

Lieutenant Colonel Frank L. Thompson of the Illinois National Guard testified that he commenced employment in January 1966, that he was in command of the 33rd Military Police Battalion in Chicago, that he was an administrative officer through most of his career, and that he was presently the assistant State maintenance officer for the State of Illinois Guard.

Claimant was told by Col. Thompson to re-enlist into the National Guard which would require attendance one weekend a month and two weeks in the summer and that there was a full-time position with the Illinois National Guard at the Broadway Armory in Chicago. The latter position required enlistment in the National Guard. Col. Thompson further testified that the Claimant was never sworn into the National Guard and that the National Guard Rules and Regulations provided that (Reg. No. 600-2) everything must be completed for an individual to join the military. Therefore, he stated, “Mr. Nelsen was never sworn into the National Guard and that ended everything there was to it.”

The Colonel previously testified that he told Mr. Nelsen that there were two people in the Armory who strenuously objected to his being in the Illinois Armory and advised him to accept the part-time job with the Naval Armory, which he refused and elected to “go home.”

Claimants counsel cites two cases which hold that the swearing-in process is a mere formality and that failure to do so did not constitute an act that would exclude one from being a member of the Guard. These cases do not alter the fact that the State’s regulations as to entrance into the Illinois National Guard require completion of all requirements into the National Guard before being eligible for enlistment into the Illinois National Guard. There is a dispute as to whether the Claimant was ever sworn in, the Claimant stating that he was sworn in and Col. Thompson stating that the Claimant never took the oath of office. Respondents records do not reflect completion.

The facts herein do not indicate, by the weight of the evidence, that there was completion of all the prerequisites for proper entry into the Illinois National Guard. The basic and fundamental rule of any contract requires a meeting of the minds, which does not exist in the instant case. Respondent never indicated at any time in these proceedings that it accepted the Claimants reenlistment application. Further, assuming it did indicate previous acceptance, the testimony of Col. Thompson clearly showed that tire Claimant was not acceptable to the Respondent and so informed the Claimant.

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

ORDER

Burke, J.

This cause coming to be heard upon Claimant’s request for review and the Court being fully advised in the premises,

It is hereby ordered that Claimants request is hereby denied.


author: Patchett, J.

text:
    (No. 85-CC-1831
    John M. Hogan, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 29, 1993.

    Smith & Munson, for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim arises out of a motorcycle accident which occurred on August 1, 1982, at or near the intersection of Elmhurst Road on eastbound Interstate 90. Claimant lost control of his motorcycle and he sustained serious injuries. There were no witnesses to the accident, except the Claimant.

The claim was filed alleging that the accident was due to a pothole in the road, which is maintained by the Illinois Department of Transportation. A trial was held before the commissioner of this Court. Claimant produced no evidence or witnesses other than himself that a pothole caused the accident, or even that an unsafe condition existed at the time of the occurrence. Evidence did come in that Claimant stated to the trooper who investigated the accident that he was used to riding a smaller motorcycle and had lost control of the one he was riding at the time of the accident.

It is clearly established law that the State does have a duty to maintain the highways in a reasonably safe condition for the purposes for which they are intended. (Robertson v. State (1983), 35 Ill. Ct. Cl. 862.) The State has a duty to persons using streets and roads to exercise reasonable care in their maintenance and repair. (Baren v. State (1974), 30 Ill. Ct. Cl. 162.) The Claimant, however, retains the burden to prove by a preponderance of the evidence that the State breached its duty by allowing a dangerous and hazardous condition to exist even though it knew of the existence of the condition. Further, the Claimant has the burden of proof to prove that the breach of duty was a proximate cause of Claimants injuries and damages. (Roach v. State (1986), 38 Ill. Ct. Cl. 171.) Claimant has simply failed to meet that burden of proof, and therefore, we deny this claim.


text:
    (No. 85-CC-2023
    George Howell, Claimant, v. The State of Illinois, Respondent.

      Order filed June 25, 1993.

    James J. Kenney, for Claimant.
    Roland W. Burris, Attorney General (Colleen McClockey von Ohlen, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This cause coming to be heard on Respondent’s motion to dismiss, due notice having been given and the Court being fully advised in the premises, the Court makes the following findings:

The Claimant seeks damages for personal injuries allegedly sustained when Claimant, who at the time of the alleged occurrence was an inmate at Joliet Correctional Center, was allegedly attacked by another inmate named Henry Henderson. Claimant alleges that the Respondent owed Claimant a duty of protection while Claimant was incarcerated at Joliet Correctional Center, and that Respondent breached that duty on September 25, 1984, when another inmate, Henry Henderson, attacked Claimant.

Section 25 of the Court of Claims Act and section 790.90 of the Court of Claims Regulations require that the claimant shall, before seeking final determination of his claim before the Court of Claims, exhaust all other remedies, whether administrative, legal or equitable. Doe v. State (1991), 43 Ill. Ct. Cl. 172, is controlling authority on the exhaustion of remedies issue before this Court. In that case, the claimant, a patient at John J. Madden Health Center, brought suit against the State in the Court of Claims after she had been sexually assaulted by another patient. The claimant did not file an action against her assailant. This Court dismissed her claim pursuant to section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations because she failed to exhaust her remedies. The Court relied upon Boe v. State (1984), 37 Ill. Ct. Cl. 72, in holding that the claimants action was barred.

In Lutz v. State (1989), 42 Ill. Ct. Cl. 124, 126, the claimant sued the State for damages resulting from personal injuries sustained when the claimant, an inmate at Joliet Correctional Center, was attacked by his cellmate, Franke Alerte. The Court wrote

“Like the claimant in Essex, Claimant in the case at bar failed to exhaust all remedies available to him prior to seeking final disposition of his claim in the Court of Claims. Accordingly, the Claimant here was obligated to bring a civil action against Frank Alerte.” (Lutz v. State (1990), 42 Ill. Ct. Cl. 124, 126.)

The Court then dismissed claimants complaint with prejudice for failure to exhaust all remedies pursuant to section 790.90 of the Court of Claims Regulations.

In Boe v. State (1984), 37 Ill. Ct. Cl. 72, claimants decedent was killed when the car in which she was a passenger collided with an allegedly defective guardrail on a State highway. The driver of the automobile was an 18-year-old uninsured man with no assets. This Court held that section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations barred claimants suit against the State.

“® * ° Court of Claims quite clearly makes the exhaustion of remedies mandatory rather than optional.” Lyons v. State (1981), 34 Ill. Ct. Cl. 268, 272.

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

Similarly, the case at bar should be dismissed for failure to comply with the exhaustion of remedies requirement. Claimant has not brought a civil action against his assailant, Henry Henderson. As the above-cited case law indicates, this failure to bring suit against Henderson precludes this suit against the State in the Court of Claims.

The fact that the statute of limitations has run regarding Claimants action against Henderson does not abrogate the exhaustion of remedies requirement:

“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 he accepted or ignored according to the whim of all claimants.” Lyons v. State (1981), 34 Ill. Ct. Cl. 268, 272.

The exhaustion of remedies requirement is not optional or discretionary. It is a mandatoiy measure that claimants must pursue in order to bring an action in the Court of Claims. In the case at bar, Claimant has failed to exhaust his remedies, and as a result, this Court has no jurisdiction to hear his case.

It is hereby ordered that Claimant’s claim is dismissed with prejudice.


text:
    (No. 85-CC-2329
    Johnny Smith, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 23, 1992.

      Order filed December 18, 1992.

    Johnny Smith, pro se, for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

This cause coming to be heard upon the report of the commissioner, after hearing all evidence and reviewing the evidentiary depositions submitted, this Court being folly advised in the premises, finds:

That Claimant was incarcerated at Pontiac Correctional Center when he sustained injury to his finger. The injury occurred while Claimant was participating in a recreational basketball game on ice. (Emphasis addéd.) The Claimant reported his injury and received medical attention, but was dissatisfied with the medical care received. At hearing, the finger appeared to have a mild deformation.

Claimant’s attending physician, Dr. R. S. Pankaj, indicated that Claimant’s finger was X-rayed soon after the ice-basketball game and that the finger in question was not broken. He described the injury as a “mild fusiform swelling in the proximal interphalangeal joint area, * * * and Claimant had a ten degree lack of full extension [of the finger].”

Claimant’s claim is denied for failure to prove by a preponderance of the evidence that the Respondent was guilty of negligence. When one voluntarily undertakes to play basketball on ice, there is an assumption of risk which attaches to said activity.

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

ORDER

Burke, J.

This cause coming to be. heard upon Claimant’s motion for rehearing and the Court being fully advised in the premises,

It is hereby ordered that Claimant’s petition is hereby denied.


author: Montana, C.J.

text:
    (No. 85-CC-2636
    New Life Development Corp., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 12, 1992.

    Phillip A. Montalvo, for Claimant.
    Roland W. Burris, Attorney General (Le Grand L. Malany, Special Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

The Claimant, New Life Development Corporation, filed its claim in the Court of Claims on May 12, 1985. The State filed its answer and affirmative defenses denying the claim.

Claimant, in its complaint, seeks $999,686 in damages from the State for the alleged breach of a lease and construction contract with the State. The Claimant alleges that the Claimant was to make substantial improvements to a building it owned in East St. Louis, Illinois, and then it was to lease the property to the Illinois Department of Corrections for a community work release center. The State allegedly was to reimburse the Claimant for renovations. Claimant alleges the project fell through after Claimant had completed considerable demolition to its building and Claimant was left with a useless building.

The cause was tried before Commissioner Robert Frederick over several days. The cause has been fully briefed by the parties and the commissioner has filed his report. The evidence consists of the transcript of testimony taken on March 23, 1990, the transcript of testimony taken March 27, 1990, and the transcript of testimony taken April 18, 1990. The evidence also consists of the following exhibits which were admitted at trial:

Claimant’s Exhibits:

Exhibit No. 1: For Sale building, photographs and literature for 2900 Missouri Avenue, East St. Louis, Illinois
Exhibit No. 2: Mini-mall photograph and literature
Exhibit No. 3: Building photograph and literature for multi-purpose building
Exhibit No. 5: Six photographs of building
Exhibit No. 6: Single photograph of building
Exhibit No. 7: Missouri Corporate Certificate of Claimant
Exhibit No. 8: Survey report from Capital Development Board
Exhibit No. 8a: Completed survey report from Capital Development Board
Exhibit No. 9: Program Statement, Alcoa Building
Exhibit No. 10: Handwritten William Obrock notes and phone message
Exhibit No. 12: Corporate Resolution of Claimant
Exhibit No. 13: First draft of lease
Exhibit No. 13a: Final draft of lease
Exhibit No. 15: Assignment of rents
Exhibit No. 16: 2/3/84 blueprints (CDB) (I)
Exhibit No. 17: 2/3/84 blueprints (CDB) (II)
Exhibit No. 19: Four pages of handwritten William Obrock notes
Exhibit No. 20: March 20, 1984, letter from Mr. Brent of Claimant to Illinois Department of Central Management Services
Exhibit No. 24: May 1, 1984, letter of transmittal as to proposed contractors
Exhibit No. 25: Two publications of invitation to bidders
Exhibit No. 26: May 21,1984, letter to newspaper
Exhibit No. 27: May 22,1984, letter to newspaper
Exhibit No. 28: May 23, 1984, letter of William Obrock of Claimant to Illinois Department of Corrections
Exhibit No. 29: June 7,1984, final blueprints
Exhibit No. 30: Specifications for renovations
Exhibit No. 31: Addendum No. 1 to specifications for renovations
Exhibit No. 31a: Addendum to electrical specifications for renovations
Exhibit No. 32: Telephone bills of Claimant
Exhibit No. 33: December 18, 1984, executed termination of lease executed by Respondent
Exhibit No. 34: Appraisal report of property as of March 31, 1984, by Lance D. Lunte
Exhibit No. 35: Appraisal report of property as of July 1, 1987, by Lance D. Lunte
Exhibit No. 36: Cancelled checks of Claimant totalling $50,292.03 and invoices
Exhibit No. 38: Central Management Services space request by DOC to CMS
Exhibit No. 39: March 16,1984, letter, Vito Stallone to Wayne Brent
Exhibit No. 40: March 15, 1984, letter from Gary Skoien of CDB to CMS
Exhibit No. 41: March 22,1984, memo from Vito Stallone
Exhibit No. 42: Handwritten memo by Vito Stallone

The Facts

The Claimant, New Life Development Corporation, made its building at 2900 Missouri Avenue, East St. Louis, Illinois, available for sale or lease in 1981. Phil Johnson, a realtor and president of Kenneth Johnson Agency of Belleville, Illinois, was showing the property to prospective buyers or lessees. In 1983, Mr. Johnson had an inquiry from the Illinois Department of Corrections (DOC) about using the property, hereinafter referred to as the “Alcoa Building,” as a work release center. Mr. Johnson contacted Mr. Wayne Brent of Claimant about the inquiry and a showing of the building was set up for November 18, 1983, for DOC personnel. Another showing was set up for November 21, 1983, at which time an additional DOC official reviewed the premises. Wayne Brent of Claimant did not know the purpose of the showing as DOC sought to have their inquiry and possible plans for a work release center kept secret due to possible bad publicity.

The building was shown again on November 9, 1983, and on December 14,1983, to DOC officials and officials from the States Capital Development Board (CDB). On January 30, 1984, a meeting took place wherein CDB, DOC, and Central Management Services (CMS) officials wanted to discuss with the owner, New Life Development Corporation, preliminary matters as to what would need to be done with the building in order for the State to occupy the building.

Another meeting was held on February 9, 1984, at the DOC building in Springfield. The parties went through the entire proposed lease almost word for word. The cost of figures used were rough figures. DOC preferred that the improvements required by DOC for a work release center be paid for and completed by the lessor and that when DOC moved into the building the lessor would be reimbursed for the improvements.

On February 15, 1984, Mr. Johnson, the realtor, received a letter from Vito Stallone with the first draft of the proposed lease. The lease was from CMS and was for a five-year lease of the Alcoa Building. Mr. Johnson was to take the lease to Mr. Brent of New Life Development Corporation and if no changes were required, he was to get the lease signed and return it to Mr. Stallone.

Mr. Brent and Mr. Obrock of Claimant went over the proposed lease. The following language was added by New Life Development Corporation and was part of the final signed lease.

“The improvements made are at the request of the lessee under leasehold improvements and that the payments therefore are not to be considered as rent.”

Paragraph 72 on page 5 of the final lease was also added. This paragraph interpreted paragraph 71 as to payment for costs of improvements. The changes from the first draft to the final draft are in paragraphs 69 and 72.

The lease was signed on February 18, 1984. On February 29, 1984, a press conference was held to announce the renovation of the building into a work release center. Many politicians and government officials attended the press conference. Mr. Johnson was to receive a fee for his work of 5% of the gross amount of the lease once the lessee took occupancy of the building. He has never received any payment from Claimant. Mr. Johnsons only other involvement was to allow inspectors into the building to inspect the building.

Wayne Brent was a real estate developer who was a stockholder in Claimant, New Life Development Corporation. He was an officer and director in 1983 and 1984. New Life purchased the building at 2900 Missouri Avenue, East St. Louis, Illinois, in 1978. The purchase price was $100,000 as it was. They put about $25,000 into the property up until 1983. There was a tenant in the building when it was purchased and there were plans to turn the building into a mini-mall. They had some tenants in 1983. All tenants were out by December 31, 1983. In the winter of 1984-85, the property was vacant. The present status of the building is that it is totally gutted. Most of the windows are out or broken.

In the fall of 1983, Mr. Brent received a call from realtor Johnson in reference to a prospective tenant for the entire building. Mr. Brent did not know who the prospective tenant was for over a month. Even then he did not learn the purpose of the State s interest for some time. He learned the State liked the building and in January of 1984 he learned that DOC was the agency seeking to use the building. He met with State officials to work out a lease. This was the February 9, 1984, meeting. The State was at the point of entering into a lease agreement on the building. The State had proposed blueprints dated February 3, 1984, for use at the February 9,1984, meeting.

At the February 9, 1984, meeting the State indicated the building was not suited for the intended purpose of DOC. The State wanted to lease the building as is from Claimant. However, the State wanted the building renovated as quickly as possible for their intended use and by the Fall of 1984. It was believed the Claimant could renovate faster than the State could.

Initially Claimant wanted to just lease the property as is to the State. As discussions continued, there was more interest in Claimant taking on the redevelopment. Claimant had to obtain financing for the renovations because a sizable amount of money would be required. Claimant obtained commitments for tbe renovations from two banks. DOC officials advised the Claimant that the State had the funds to reimburse Claimant for the renovations. The banks verified the funds availability. In the lease there was an escape clause in the event there was not an appropriation for that particular lease.

Mr. Brent believed there were two contracts. One contract was the five-year lease. The other was for the renovations. He felt Claimant could not do one without the other, especially with the time frame of the State wanting occupancy by September 1, 1984. DOC had advised Claimant that DOC already had $4 million available for correctional facilities. The renovations for this project were going to be about $1,600,000. Mr. Brent agreed that the basic terms of the lease were agreed upon at the meeting on February 9, 1984. After receiving the draft of the lease, Mr. Brent and Mr. Obrock of Claimant took the draft to their CPA to determine the tax effects of the lease. They were concerned as to the income effect on Claimant of the reimbursement for the improvements. They did not want the reimbursement by the State for improvements to be considered rent which would have had a disadvantageous tax effect on Claimant.

The State was going to pay a lease rate for an as is building and reimburse Claimant for the improvements to be made. The additions to the lease that became the final lease were included by Claimant on the basis of the accountants concerns. Claimant informed CMS of the requirement that paragraph 69 be changed. The State then added paragraph 72. Shortly after the changes were made, Claimant, and then the State, signed the lease. The lease was signed February 27, 1984. Mr. Giordano of CMS signed the lease on March 22,1984.-

Mr. Brent did not work on the plans for the renovations and the cost estimates for the renovations. This was Mr. Obrocks bailiwick. On February 14, 1984, Claimant enacted a resolution to borrow $150,000 to begin the project. The Claimant assigned its rents to the bank to receive its loan in addition to a real estate mortgage. Mr. Brent also recalled the press conference following the signing of the lease. He recalled that Michael Lane, Director of DOC, assured him the lease was signed and that the State was 100% behind Claimant.

Upon the signing of the lease Claimant moved into the demolition phase of the project. Claimant was to take drawings prepared by CDB and remove certain partitions of the building. The building was to be cleared and made ready to put in new equipment. At this point all the previous occupants were out of the building. Demolition work proceeded until May 11, 1984. Total expenditures by Claimant for demolition totalled $50,292.03. Mr. Brent was also the owner of the company that was the prime contractor for the demolition work. During the demolition work Mr. Brent would often see representatives of different State agencies examining the project. He recalled representatives of DOC and CDB being present. CDB representatives would mark walls and make sure Claimant did things exactly the way they wanted it. He also received calls from DOC checking on the renovations during this period.

After demolition work was completed in May, Claimant let out bids for the renovations. On June 22, 1984, an official bid-opening occurred at the mayors office in East St. Louis, Illinois. At the State s request, minority participation was emphasized. The bids came in close to the anticipated estimates of cost.

The first time Mr. Brent learned of a problem with the project was when the realtor Johnson called him about a newspaper article in July of 1984 indicating that the State senator in whose district the project was located had reversed his position on the project. On July 18, 1984, the appropriations bills for the Department of Corrections were signed by the Governor and upon signing became effective as law. The appropriations bills stated that no monies could be expended in St. Clair and Madison counties. The senators amendment to the appropriations bills put chaos into the project. His amendment stopped the project although the State agencies felt there might be some relief in the Fall veto session. However, the funding was never restored.

Claimant was sent a termination notice form dated November 13, 1984, from the State indicating there had not been funds appropriated by the General Assembly so the lease No. 03985 was terminated.

In regard to the renovations, the Claimant did receive $32,000 from the State. Paragraph 72 of the lease indicated that if for any reason the lease did not go forward, Claimant would be reimbursed for certain architect and engineering fees. Claimant received no other monies from the State.

Eventually, after the project fell through, Claimant abandoned the building. It was impossible to secure the building in its present condition and it cannot be insured. Claimant has tried to sell the building but has not received any offers of value.

Mr. Brent admits that the contract is one document but he believes it has two separate parts. The entire project was contingent on the directors of CMS and DOC approving the total costs of the project in writing. The State was going to lease the building but it had to be in turnkey condition. The contract called for Claimant to come in to the State with a set of plans and a cost estimate. These were to be presented to DOC and CMS for written approval. It was Mr. Brents belief that the State was not entitled to Claimant s drawings and cost estimates because CDB provided their own drawings to be used and CDB directed Claimant to take bids from the appropriate subcontractors. He believed that this procedure let the State know what the costs were going to be. The State was also made aware of the costs on the date of the bid openings, June 22, 1984, as some State people were at the bid opening according to Mr. Brent.

It was Mr. Brents position that by the States actions the costs and plans were approved even if he could not produce a written approval signed by CMS and DOC. He believed the banks would not have loaned New Life the money for renovations if the whole deal was off or if the lease fell through.

On cross-examination Mr. Brent admitted that there was one contract for the lease of space in a certain condition. It had two parts, being the lease and the renovations. Mr. Brent had an attorney verify the legal description in the document in the event the State purchased the property. However, he did not have the attorney comment in regard to the contract language. The State officials encouraged the demolition according to Mr. Brent. No one from the State told New Life not to begin work until further documents were presented and approved. The State also indicated that they wanted New Life to use minority contractors.

William Obrock was a stockholder, officer, and director of New Life, too. Mr. Obrock was also the owner of a company named Design Built Collaborative, Inc. This was the company hired by New Life to do the design of the technical documents for the renovation. Design Built was an architectural and construction company. CDB gave New Life blueprints with all of the projects dimensions. The State proposed it all. The State had people go through the building prior to the blueprints being drawn. New Life was anxious to rent the building in 1984. They were not excited about doing the renovations. New Life did not want to go out and borrow money to pay for renovations over an extended period of time. They did not want to be in a position where the State did not renew the lease after five years and be unprotected and have to pay for all the improvements for a single-purpose building.

New Life was concerned about putting in all the improvements and the State just walking away. They wanted to rent to the State and have the State pay for the improvements. The agreement New Life felt it had made with the State was that New Life would put in the improvements and the State would reimburse New Life in a one-time single payment for the entire project. This payment was to be made when the State occupied the space. The State poured over every detail of what New Life was doing. New Life followed every rule the State put forth on minority hiring and publication notices..

Mr. Obrock testified that paragraphs 69 and 72 were added to the original draft of the lease for two reasons. The first reason was for tax purposes. Claimant wanted it clear that the reimbursement for renovations payment was not to be construed as rent. The State always considered such payments as rent for the States purposes. The second reason was they wanted clarity in the contract terms. The concept was that the reimbursement would be a one-time payment. Claimant was putting in the improvements for the State because the State did not want to put them in. The State could not put the improvements in as fast as Claimant because the State has certain legal procedures it must follow that a private company would not have to follow. Mr. Obrock felt that this was an accommodation for the State and that it was a side agreement to the basic contract. Claimant was going to be the architect and the engineer on the project. Claimant was going to prepare all the documents describing the scope of the work. Claimant then would oversee the construction.

Claimant prepared the technical documents at the CDB’s direction. CDB monitored and approved what Claimant was putting into the project. On March 7, 1984, Mr. Obrock met with DOC, CDB, and the States design team on the project. The State made suggestions as to what should be done to the building and Claimant may or may not have agreed to the suggestions, depending on feasibility. He believed the State did cost estimates but they would not tell Claimant what they were. Section 72 of the lease stated that after execution of the lease by all parties on February 29, 1984, Claimant would prepare detailed itemization and allocations of costs to the lessor and lessee for the improvements. The lessee would approve or disapprove the itemizations or enter into negotiations with Claimant regarding cost adjustments within 14 days. Claimant believed the meeting of March 7, 1984, satisfied this contract requirement even though no one complete document that included all specifications for improvements and cost allocations was ever presented by Claimant to the State.

Mr. Obrock believed the on-going discussions with the State as the project developed and as the costs estimates evolved stood as satisfaction of the contract contingency. Mr. Obrock believed eveiyone knew the costs and that they were $1,600,000 to $1,700,000. However, Mr. Obrock admits the State never said they agreed or disagreed. The State never said these costs were accepted or rejected.

Claimant did prepare detailed drawings describing the scope of the work. The drawings were continuously updated until the bids were solicited. The State went over the drawings and specifications and checked off everything and made additions thereto. When the bids came in, they were very close to the $1,700,000 estimate.

Mr. Obrock testified that no one from the State ever asked for a single document that itemized the costs and the allocation of costs on the project. He believed the continuous interaction with the State, that by doing everything the State told them to do, and by acting in good faith, that Claimant was performing the contract. While they would not know the exact costs of the project until the bids came in, they did have budgets they expected to meet.

After the bids came in and Claimant had the actual costs, Mr. Obrock intended to sit down with representatives of the State and go over the costs and the contractors selected and obtain the States concurrence. He was never able to do this. The State officials would not return his calls. Claimant was ready to proceed with the renovations but the State would no longer fund the project.

Mr. Obrock testified that the demolition phase was begun by Claimant based on the word of Michael Lane, Director of DOC. According to Mr. Obrock, Mr. Lane told Claimant that he had signed the lease, the money was in place, and to get on with it. The building had 36,000 square feet in it. It was long and narrow and had many windows. It fit the State s needs very well. The building, however, had to be converted from a laboratory research building into a dormitory. All new air conditioning, all new mechanical, and all new electrical wiring had to be put in. In the demolition phase, Claimant stripped all of the utilities out. All of the exterior windows had to be taken out and many other portions of the building were removed, including walls and part of the roof.

The State, at some point, did an inventory to see if everything had been done in the demolition phase according to what the State wanted. The demolition phase went from March to May. The renovations would have taken 90 to 120 days if the project had proceeded.

Raymond V. Lunte, a real estate appraiser, testified for Claimant. He did two appraisals of the property. One was as of March 31, 1984, and the other was for July 1, 1987. For the 1984 appraisal, Mr. Lunte assumed a five-year lease of the building as a correctional institution and that the lessee would buy the property at the end of the five-year lease pursuant to the terms of the lease rather than for the State to continue to rent the property. The appraiser s conclusion using these assumptions was that in 1984 the property was worth $970,000. The second appraisal as of July 1, 1987, showed a gutted building in a very poor condition. In this appraisers opinion the building had no value. He believed it would cost more to renovate the property than it would be worth. He further believed the land value was not enough to warrant the destruction of the building. The appraiser admitted that the area where the Alcoa Building was located was a depressed area with low property values.

The State s witnesses were Wally Claypool who was with CDB at the time in question, Vito Stallone of CMS, Dan Bosse of DOC, Jack Hutchison of DOC, and William Barham of DOC.

Mr. Claypool supervised the survey unit of CDB. He would support the construction function of CDB and provide technical assistance to other agencies by conducting field surveys of existing buildings and evaluate the scope of work on the buildings. He evaluated the Alcoa Building. DOC had proposed to use that site as a place to house prisoners in a minimum security work release setting to alleviate prison overcrowding. He looked at the building to see if it was feasible to use the building for that purpose. His unit created suggestions for ways the building might be altered to fulfill that purpose. Prior to the March 7, 1984, meeting they had prepared a floor plan sketch for the project.

While he was involved in the project it was only at a very preliminary stage. It had not been given the status of a construction project by the State. If the project had moved from the survey phase to the construction phase, it would have gone through a whole design process and been reviewed by a different unit. According to Mr. Clay-pool, this project never left the preliminary phase. It never moved into the design phase as it never left the survey preliminary sketch form. However, Claimants Exhibit No. 87, the sketch, has design phase labeled on it by CDB. Mr. Claypool approved the document with “design phase” written thereon. He could not explain this discrepancy in his testimony.

After the February 7, 1984, meeting it was Mr. Clay-pool’s understanding that CDB would have no more involvement in the project. DOC could have gone ahead with the project. He would, however, have been advised if DOC was going ahead with the project.

Vito Stallone was with CMS. He leased office and warehouse space for the State of Illinois. He was involved in negotiating the lease terms for the Alcoa Building. He drafted the first draft of the lease on or about February 10, 1984. The final lease was signed March 22, 1984. The lease required the Claimant to do an extensive amount of renovation. The lease was contingent so that the State could get out of the lease. This was because the lease was agreed upon in one day and because it was an unusual lease for the State because of the extensive renovations required and the uncertainty of the costs. The lease was written so that the State had an option to terminate the lease if the State did not want to expend the amount required to make the renovations. Therefore, the lease had a contingency that provided for approval by both directors of DOC and CMS at a later date after they received the costs for the renovations involved.

The contingency was to protect the State on the costs of renovations. The lessor was to provide the State with a document showing the costs before any commitment from the State to go on with the contract. CMS never approved the costs. CMS never received any written bids or written proposals on costs from Claimant. Vito Stallone testified that he specifically told William Obrock that the contract was contingent on funding by the legislature. In Mr. Stallone s opinion this was not a contract to lease a building as is and then fix it up, but a contract to lease a building in turnkey condition.

The Claimant, as owner, was responsible for putting the building in turnkey condition. Mr. Stallone disputed the amount of demolition alleged by the Claimant, testifying that the peeling paint had not been removed, a big boiler had not been removed, an air handling unit and some light fixtures had not been removed. All of these things should have been removed during the demolition phase.

As to the amendments in paragraphs 69 and 72, Mr. Stallone s interpretations differed from those of Claimant. Under the States accounting system, the State considered the lump sum reimbursement for leasehold improvements to be rent. These leasehold improvements were to be paid from funds appropriated to DOC. Mr. Stallone testified that these funds were not in place at the time the lease was signed. Mr. Stallone testified that he had conversations with Mr. Obrock of Claimant where he made it clear this whole contract was subject to legislative appropriation. However, Mr. Stallone had to admit on cross-examination that the State documents initiating this project indicated that DOC had already received funding for proposed work release centers. Mr. Stallone further claimed that the amendment to paragraph 69 was at the request of lessor solely to accommodate lessors income tax situation.

Upon review of Mr. Stallone s file on the case during trial, Exhibit 8A was located which was a survey of the project. Exhibit 8A had dollar amounts thereon and showed an estimated projected cost for the project at $1,740,000. The dollar figures appear as of January 3, 1984. The final lease was sent by Mr. Stallone to Mr. Brent of Claimant for signatures on March 16,1984.

The records of Mr. Stallone indicate the Claimant would not agree to pay for any improvements. Therefore, an option clause was agreed to which enabled the State to purchase the building for a predetermined amount and thereby recover the benefits that might exist from improvements extending beyond the normal lease term. The State was anticipating paying for the improvements.

Dan Bosse was the manager of the Capital Programs Unit for DOC. In 1983 the Illinois Supreme Court struck down the manner in which DOC was granting meritorious good time to prisoners. Therefore, the need for prison space greatly increased. DOC started looking for bed sites, including new work release centers. For the project at the East St. Louis location he never saw more than preliminary plans. The survey plan done by CMS was requested by DOC. If there had been DOC involvement in construction he would have been involved in it. He was never involved in any such construction.

John Hutchison was the deputy director for administration and planning for DOC in 1983 and 1984. He supervised the fiscal, accounting, and funding units of DOC. In 1984 community correctional centers were to be funded from one of two lump sum appropriations. This was not a part of the State s capital budget but was from a separate appropriation for these community correctional centers. The State did not spend all of this appropriation for 1984. The DOC sought a reappropriation of these funds in 1985. However, there was opposition in the legislature for the East St. Louis project. The legislature actually included language in the reappropriation that excluded any development of community correctional centers in St. Clair County and this specifically prohibited DOC from continuing the East St. Louis project at the Alcoa Building.

Mr. Hutchison never saw any plans or specifications for construction of the East St. Louis project and any such documents would have come to him. He did not recall ever receiving even a disputed bill for construction or renovation at that site. The State looked at dozens of sites for work release centers. The State had only originally appropriated $4 million and there was not enough appropriated to fund all the sites being looked at.

Mr. Hutchison believed the State had a lease with Claimant that said once New Life completed their specifications and had bids that New Life had to come back to DOC for approval. This was so DOC would know what the construction costs of this project would be so that DOC could plan these costs into DOCs spending for the year. Even if Michael Lane, the Director of DOC, had told Claimant the money was available for the renovations, there still had to be a contract and DOC would only act in accordance with the contract. Under the lease with New Life, for DOC to approve vouchers for payment, the contract would have had to be completed by New Life bringing in the actual bids. For the vouchers to have been approved for payment, they would have had to have been submitted by June 30, 1984, because after that time they would have been disallowed for any new bids in East St. Louis, Illinois. In this case the legislature took the unexpended 1984 appropriation and reappropriated it for 1985 with the exclusion for St. Clair County.

William L. Barham of DOC was in the Capital Programs Unit. He viewed the Alcoa Building about 20 times in 1983-1984 over a period of several months beginning in December of 1983. His purpose was to go over the building to see what would be needed to remodel the Alcoa Building for use as a community correctional center and work out a floor plan. He worked with CDB people to work up specifications. He never supervised anything or directed Claimant to do anything. He did recall Claimant ripping out unneeded plumbing, piping, and other unneeded parts of the building. The people working on this demolition were not working for the State. The State people changed the floor plan in their own mind a dozen times as they looked at the building. There would have had to have been some demolition before the renovations could begin.

Douglas A. Brown also testified, pursuant to an evidence deposition. In 1983-84 he was deputy director for community services of DOC. He ran the State s community corrections programs. Mr. Brown initialed the final lease which laid out the conditions under which the State would lease the Alcoa Building. His responsibility was to work with the Claimant to get the building in shape for a work release center assuming everyone could cross all of the proper legal boundaries. He also was responsible for tiying to obtain community support for this work release center. At the February meeting and at the news conference announcing the center, no approvals were ever given by the State to the owners for any work. All the State was doing was signifying its intent to be in an acceptable building at an acceptable renovation price. According to Mr. Brown, who now works in Maryland, the March 7 meeting in Springfield ended with an agreement in general terms as to the items that would have to appear on a final plan for renovation which Claimant was to supply DOC in the future. CDB had given technical assistance in preparing a survey of what would have been required for the correctional center and a cost estimate. CDB had no further involvement. CDB would have been involved later on as technical advisers if Claimant had presented a final proposal and cost budget for review by the State. At the March 7,1984, meeting, no approval was given by the State for construction or construction plans. Mr. Brown was very familiar with paragraph 71 of the lease. In the event New Life had submitted materials to DOC for approval under the contract, the documents first would have gone to the people in the capital development section of DOC who would have obtained technical advice from the CDB. The documents then would have come to Mr. Brown for approval before he would have sent it to Director Lane of DOC with a recommendation for approval or disapproval. Mr. Brown never received any final plans and specifications from Claimant.

The State was looking at many sites for new prison beds. There was a lot of competition for the money that was available. The State required final cost approval to look at cost per square foot to determine if the project was acceptable and consistent with the cost per inmate they would have expected to use in any correctional facility. Mr. Brown testified he never told Mr. Obrock on February 29, 1984, to begin demolition work. He testified he would not do so because CMS had not signed on the contract. CMS did not sign on the lease until March 22, 1984.

Of the $4 million originally appropriated for community correctional centers, about $2 million was never used for these projects.

Mr. Obrock testified in rebuttal that Mr. Brown told him to proceed with the demolition at the time of the press conference on February 29, 1984, or they would never finish the renovations by September of 1984. Mr. Brown assured Mr. Obrock the funds were available according to Mr. Obrock. Mr. Obrock further testified they did submit Exhibits 29, 30 and 31 as final cost and specifications to the State prior to June 18, 1984. The documents were sent to Pat McNanamon and Wally Claypool of the State. Mr. Brown testified he never saw these plans and specifications that Claimant says they produced.

The Law

For all of the involved testimony, the numerous exhibits, and the extensive briefs, this case comes down to a simple case of contract construction. This case is also a primer on how to deal with the State on a construction project. Anyone who deals with the State has to understand that you do not work on a handshake. Every “i” must be dotted and every “t” crossed. Whether it was wishful thinking or pure naivete, Claimant did not follow the letter of the contract but only the spirit. Under the present state of the law, that is not good enough. The written contract prevails here. Claimants position that an oral contract or implied contract exists must fail as this is not a contract of an emergency nature. Melvin v. State (1989), 41 Ill. Ct. Cl. 88.

One can see easily the situation from the Claimants point of view. They have a building with $125,000 into it in a depressed area in 1983. The State comes along and wants to rent and possibly buy the building. Claimant sees a five-year lease and a probable sale at a nice profit. The problem comes in with the renovations. Claimant would rather not do the renovations but the State talks them into it. The State does not renovate buildings it does not own. It is faster for Claimant to do the renovations because the State has so many rules, regulations, and statutes to follow in order to build. Everyone wants the lease going by September of 1984. Everyone also tries to protect themselves. The Claimant does not want to pay income taxes on the renovations so the repayment is not called rent. The State puts in a double contingency. The State can terminate the lease if the legislature does not appropriate funds. The State also put in provisions as follows for the second contingency:

“71. This lease is contingent upon written approval by the Director of the Department of Central Management Services and the Director of the Department of Corrections of the Lessee’s share of the total cost of this project.
It is further agreed that if said approval is denied then the Department of Corrections shall reimburse the named Lessor for one-half the costs incurred for architectural and engineering fees, in an amount not to exceed $32,000.
72. Paragraph One of Article 71 above shall be interpreted as follows. After execution of this lease by all parties, Lessor shall prepare firm costs for the necessary improvements with detailed itemization and allocation of costs to Lessor and Lessee. Lessee shall within fourteen days of receipt either approve, disapprove, or enter into negotiations with lessor regarding cost adjustments. If approval is not given initially or after negotiation, this lease shall end immediately without penalty or obligation to either party except as provided in the second paragraph of Article 71. No reason for disapproval need be given.”

Public Act 83-1199 which took effect July 1, 1984, officially ended this project. The legislature specifically stated,

“No funds reappropriated pursuant to this section or appropriated pursuant to Section 8 shall be used for the expansion of existing, or the development of new community correctional centers located within St. Clair County.”

In construing this contract and determining the intentions of the parties, the instrument must be considered as a whole. (McDonnell-Douglas v. State (1984), 36 Ill. Ct. Cl. 46.) It is undisputed by the evidence that the Director of DOC and the Director of CMS never approved the State s share of the total cost of the project in writing. These dual signatures were an important contingency in the lease to protect the State. The lease itself, as argued by Claimant, could not be the written approval because the interpretation of .the clause specifically calls for written approval after the lease was signed and after firm costs for the project with detailed itemization were served on the State. There is some dispute on whether costs and specifications were given to the State and whether the State was aware of the bids from the bid opening ceremony, but that makes little difference in this case because there was never any proof of acceptance in writing. The Claimant failed to prove it prepared final firm cost figures and served them on the State by something as simple as a return receipt. The evidence is clear that absent written approval by the two directors, the State could terminate this lease as to the renovation reimbursement without additional penalty because the State was protected by both contingency clauses.

The rights and obligations of the parties are to be determined from the plain, unambiguous wording of the contract. There can be no oral modification of the clear terms of the contract without the consent of both parties to the contract. (Hoel-Steffen v. State (1983), 35 Ill. Ct. Cl. 108.) Claimant seeks an equitable remedy in this Court or in the alternative asks this Court to find compliance with the contract terms based on substantial compliance.

While the evidence is contradictory, it is not hard to fathom the State official urging Claimant to move quickly on this project and assuring Claimant funds were in place. However, the law is clear. The representatives of the State could not bind the State based on their actions. (Bellini v. State (1982), 35 Ill. Ct. Cl. 701.) It is a well-settled principle of law that in dealing with an agent of the State one must ascertain at his peril the authority of the agent and the mere assertions of the agent are not sufficient to bind the State. (Melvin v. State (1989), 41 Ill. Ct. Cl. 88.) Under the law, if the officials urged Claimant to start demolition, Claimant should have just said no. A handshake and statements that funds are in place were not good enough to rely on in the face of the written contract contingencies. Implied contracts are not favored by this Court. (Edwards v. State (1989), 42 Ill. Ct. Cl. 116.) It is a sad but true commentary. Because Claimant never received written approval of firm costs to bind the State to pay, the State could terminate the contract for any reason without additional penalty. Claimants only recovery was the $32,000 for architectural and engineering fees for which Claimant has been paid by the State.

Even Mr. Obrock admits Claimant wasn’t to be paid for the renovations until the State moved in. The State never moved in and properly so. Claimant concedes in its brief that they have no claim for rent. It is also difficult to find substantial compliance when there is no proof the State ever received firm costs with itemizations and allocations and the Claimant never did move on to the renovation stage.

While it is true that the Claimant acted by doing some demolition to its building, which at the time may have benefitted the State, and while it would be easy to be sympathetic to Claimant’s situation, there is a long line of cases which hold that Court of Claims jurisdiction does not encompass equitable remedies such as quantum meruit. In this respect the Court of Claims differs from courts of general jurisdiction. Persons dealing with the State are held to whatever terms the legislature may impose. The result of these limitations may be seen as harsh in some instances, but the legislature has not authorized the Court of Claims to act otherwise.

The Claimant has failed to prove the State breached the lease. The State bargained for and received two contingencies in the lease and used them both to validly terminate the lease. It is unfortunate that the Claimant is left with this building in the condition it is in, but the Claimant chose to proceed with demolition work without the two written approvals required by the clear wording of the contract.

The one mitigating factor for Claimant is that the loss to Claimant does not appear to be nearly as great as the appraisers testimony indicated. It is hard to fathom that a building purchased in 1979 for $100,000 could become worth almost $1 million in 1983 in a depressed area. The appraisers assumption of a completely renovated correctional center to reach his value is not well taken. Be this as it may be, the Claimant did have some loss but loss that is not compensable in this Court.

Conclusion

For the foregoing reasons it is hereby ordered that this claim be, and hereby is, denied.


text:
    (No. 86-CC-0028
    Alonzo Jones, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1993.

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

Patchett, J.

This cause comes before the Court upon a claim brought by Alonzo Jones, a 51-year-old inmate at the Stateville Correctional Facility. The Claimant suffered severe injuries to his left hand on July 31, 1986, while operating a table-saw pursuant to his job responsibilities within the institution. Claimant contends the State failed to inspect and maintain the table-saw involved, even though it had notice of its dangerous condition, and further, that the State failed to provide proper training to the inmates who operate the saw.

The Claimant had been incarcerated since he was 25 years old. During the time of this incarceration, he had obtained a GED, taken a number of junior college courses dealing with technical subjects, and ended up with one of the small number of jobs available at the Stateville institution. At the time of his injuries, he was responsible for maintaining Building X, a job to which he had been assigned for a period of lVz years.

At the time of the hearing, the Claimant had his own room immediately beneath the Stateville general store, and his function included maintaining freezers and coolers which stored food items. Testimony established that he was permitted much greater freedom within the institution than other inmates because of his job responsibilities.

On the date of the incident, the Claimant was constructing new legs for a wooden desk. He had reported to the carpentry foreman, correctional employee Paul Bredesen. Mr. Bredesen and the Claimant discussed the Claimants plans to construct the legs. Mr. Bredesen then provided a number of dado blades to the Claimant. Dado blades are designed to cut grooves into wood at varying depths. When a closed-end groove is being created by these blades, the shield that normally protects the operators hands cannot be used because the hands are on the wood. The wood is stabilized during its movement over the dado blade by what is called a rip fence. The rip fence on the saw involved had a lever to lock it into place and also an adjustment screw. The Claimant testified that he was unaware of the adjustment screw.

Prior to the incident, the Claimant had extensive experience with table-saws beginning with classes he took in high school. This experience continued in cabinet and construction work prior to the time he was incarcerated. The Claimant had used this particular saw hundreds of times and had made numerous dado cuts. On each occasion, he testified that he used the same technique which he employed on the date of the injury. Further, all the other personnel in the prison shop, including State employees, used the same method.

On the date in question, the Claimant had made 11 prior passes using the blade, and on the last pass the wood moved, causing his hand to be dragged across the blade. This resulted in extremely serious injuries to the Claimant s left hand.

The State owes a duty to inmates of its penal institutions to provide them with safe working conditions under which to perform their assigned work. (Hammer v. State (1987), 40 Ill. Ct. Cl. 173.) Further, the State has a duty to provide inmates with proper safety equipment to complete their assigned tasks. (Tucker v. State (1989), 42 Ill. Ct. Cl. 72.) We feel that the State did not meet its duty with regard to the Claimant in this situation.

First of all, the inherent nature of the equipment rendered it extremely dangerous to any individual. Secondly, the rip fence on this saw required the adjustment of a screw to insure its stability. Repeated use of the saw would loosen the rip fence. The State s failure to monitor the rip fence on a more regular schedule can be characterized as a contributing factor to this accident. It was only after the accident that an employee of the State commented to the Claimant about the need to use the adjustment screw.

It is the opinion of this Court that the State failed to provide the Claimant with safe working conditions and safe equipment, and failed to sufficiently instruct him in the proper operation of the woodworking equipment in question. This Court has consistently held that under such situations, there is liability on behalf of the State to the inmate who was injured. McGee v. State (1977), 31 Ill. Ct. Cl. 326; Moore v. State (1951), 21 Ill. Ct. Cl. 282; White v. State (1987), 39 Ill. Ct. Cl. 175; Burns v. State (1982), 35 Ill. Ct. Cl. 782; Hughes v. State (1984), 37 Ill. Ct. Cl. 251.

For the reasons stated, we award this Claimant the sum of $50,000.


text:
    (No. 86-CC-0286
    Allied Van Lines and Ray Houlette, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 23, 1992.

    Bresnahan, Garvey, O’Halloran & Coleman, for Claimants.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimants, Allied Van Lines and Ray Houlette, filed their first amended complaint sounding in tort pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(d)), on June 4, 1987. The complaint as to Allied Van Lines alleges the State negligently damaged the 1984 Kenworth tractor owned by Claimant, Houlette, when a snowplow of Respondent collided with the aforesaid tractor as the tractor was stopped, jackknifed, on Interstate 74. The claim of Ray Houlette was for lost profits due to the inability to use the 1984 Kenworth tractor while it was disabled and being repaired. The cause was tried by the commissioner assigned to the case.

The Claimants have filed their brief. The State failed to file its brief. The Claimants filed a motion for judgment on the evidence based on Respondents failure to file a brief. That motion is denied. While it would have been helpful for the State to have filed a brief, such failure to file a brief in and of itself is not grounds for a judgment against Respondent on the merits. (Spencer v. State (1983), 36 Ill. Ct. Cl. 216.) Because the case has been tried, the Claimants have filed their brief, and the commissioner has rendered his report, the Court will rule on the merits without waiting for and having the benefit of Respondents position. We feel that this approach is fair to the Claimants and not unduly harsh on the taxpayers of the State of Illinois. The People of the State of Illinois should not have to suffer because of the failure of Respondents attorney to file a brief even after that attorney sought an extension of time to file a brief.

The Facts

Allied Van Lines, Inc., leased a 1984 Kenworth tractor. This tractor was leased to Allied Van Lines by Claimant and driver, Ray Houlette. The tractor had been purchased six months prior to the date in question by Claimant, Houlette, for approximately $75,000. Houlette then drove the tractor for Allied.

On February 12, 1985, Mr. Houlette was traveling east on Interstate 74. Due to poor weather conditions, he lost control of the truck and the truck jackknifed, ending up on the side of the road near milepost 34. Claimant Houlette exited the tractor and entered a State Trooper’s vehicle. Shortly thereafter a snowplow owned and operated by the State of Illinois, while plowing snow, struck the Claimant’s tractor, backed up, went forward again and struck the tractor a second time. The second impact violently lifted the tractor’s front wheels off the pavement. Prior to this collision, there had been no damage done to the tractor. When the truck jackknifed, the tractor sustained damage to the fuel tank. The damage caused by the snowplow was to the front and front right of the tractor.

The tractor was taken to Schmitt Truck Repair for the repairs. The tractor was unavailable for use for 48 days. Using the three months’ income prior to the collision and the three months’ income after the tractor was returned, Mr. Houlette figured his lost profits at $158 per day. Claimant provided his tax return for 1985 to substantiate his figures. Claimant Houlette also paid an insurance deductible of $250. Charles Hope, a damage evaluator and appraiser for heavy equipment, testified as to damages for Claimant. He was licensed in Michigan as an appraiser and adjuster. He also did such appraisals in Illinois. He had done over 2,000 appraisals of damaged tractors prior to 1985. He had worked 13 years for Property Damage Appraisers, an appraisal business. In August of 1985, he opened his own appraisal business. The Respondent had no objection to Mr. Hope testifying as an expert. In February of 1985, Mr. Hope evaluated the damages to Claimant’s tractor. Mr. Hope found the damage caused by the snowplow to be $28,234, and the total damage, including the jackknife damage, to be $36,000. Claimant, Allied Van Lines, seeks remuneration only for those damages caused by the snowplow in this case. Mr. Hope testified he used the industxy standards when computing damages to the tractor for parts and labor. Mr. Hope was of the opinion that the cab had to be replaced. This opinion was based on his observations of the tractor after the collision and the fact that many rivets had stretched and the truck was out of square. The cost to bring the cab back to square would have exceeded the cost of a replacement cab so he wrote his evaluation for a replacement cab which would then also be warranted by the factory for a full five years. The tractor had a full five-year warranty when purchased six months earlier.

Mr. Hope believed the dealer would have voided the warranty on the cab if the repairs he felt were appropriate were not made. The warranty requires that every panel that is damaged, buckled or stretched be renewed with factory rivets and with factory components. For this particular cab one would have had to take everything apart but the left door. Every panel had a stretch mark on it. Seventeen of 21 panels were damaged. Mr. Hopes exhibits did not include $1,000 for salvage value on the old cab and therefore Claimant’s claim should be reduced by at least $1,000. Mr. Hope was not very clear on the amount of salvage value in his testimony.

Mr. Hope was of the opinion that the jackknife damage could have been repaired in four or five days once the parts were in. It would probably take a week to get the frame rail and fuel tank in from the factory. He believed a maximum of 13 days could be allowed for repair of the jackknife damage.

Mr. Hope believed that replacement of the cab was the most economical way to proceed. To replace every damaged part of the tractor woxxld have cost $18,000 or more and the replacement cab was $20,000. He believed there may have been other hidden damages found and. it could have easily taken 90 days to repair the tractor if the repair method had been used.

The repair method would have likely cost as much as the replacement method and with the replacement method, the owner received the warranty. Mr. Hope believed repairing the cab was necessary.

The exhibits indicate that Transport Indemnity Company paid $20,758 for collision repairs to Schmitt Truck Repair for the account of Allied Van Lines and Ray Houlette on February 28, 1985. An additional $15,392.53 was paid by Transport Indemnity Company to Ray Houlette and Schmitt Truck Repair on April 1, 1985, for collision loss and finally $120 was paid by Transport Indemnity Company on April 12, 1985, to Ziebart Auto-Truck Rustproofing. All three payments related to the February 12, 1985, collision, including the jackknife damage.

Russell Strand of GAB Business Services Incorporated testified as an expert on damages for Respondent. He has been an appraiser and claims adjuster for trucks and other heavy equipment for 27 years. GAB is an independent adjusting service. On February 26,1985, he appraised the damage to Claimants tractor. The appraisal took place at Schmitts Truck Repair. Mr. Schmitt, the owner of the repair company, was present as was Mr. Hope. Mr. Strand could not understand why Schmitt and Hope felt a new cab was necessary. Mr. Strand testified that,

“A lot of times when you get into something like this where there is severe damage and it’s a relatively new model and if there isn’t a great deal of difference between the cost of repairing the cab and replacing it, I will go along with replacing the cab, but that wasn’t the case here.”

He was of the opinion that the impact by the snowplow was nowhere near severe enough to warrant replacement of the cab.

Mr. Strand was testifying from a copy of his appraisal and his memory as his company had destroyed the office file earlier. He never anticipated litigation in this matter. If litigation had been indicated, the file would have been placed in their “do not destroy” archives.

Mr. Strands investigation of the truck indicated the impact of the snowplow had been to the right front of the vehicle. There was some minor misalignment of the door opening. He felt the truck was not misaligned in any significant way. He saw no popped rivets or misalignment of the panels. This expert gave the opinion that repairing the cab was appropriate and would have returned the tractor to substantially the same condition as it was prior to the collision. He did not think that repairing the damage would void the warranty. Mr. Strand opined the damage from the snowplow impact was $2,400 and that repairing this damage would not distract from the value of the tractor as long as it was properly done. Mr. Strand was of the opinion that if the repairs he had advocated were properly done, there would have been no effect on the tractor warranty. Mr. Strand also believed the salvage value for the cab should have been $5,000. Mr. Strand believed the snowplow damage could have been repaired in four or five days. Mr. Strand was not aware that the snowplow had struck the tractor two times. The written appraisal prepared by Mr. Strand indicated that he received Mr. Hope s damage appraisal at the time he did his own appraisal. He was in “total disagreement” with the appraisal of Mr. Hope and proceeded to prepare his own damage appraisal after inspecting the vehicle. However, the report does indicate that as much as 30% of the jackknife damage could be attributed to the collision with the snowplow. The pictures provided by Mr. Strand do not show the areas of controversy, being the panels and rivets.

The Law

It is important to reiterate that a brief by Respondent would have been helpful to the Court. This is an adversarial proceeding and it is important that the Court have the position on the issues from both Claimant and Respondent. The Respondent has failed to file its brief even after requesting an extension of time to do so. This is disappointing because there are significant issues in this case.

It appears that the State is not contesting liability as no evidence was presented to indicate that the State contests liability. With no evidence and no argument presented by the State as to liability, we find that the Respondent is liable for the damages to Claimants.

The burden of proof in a negligence case is on claimant to prove by a preponderance of the evidence that the State was negligent and that such negligence was the proximate cause of claimants damages. (Hoekstra v. State (1984), 38 Ill. Ct. Cl. 156; Johnson v. State (1983), 36 Ill. Ct. Cl. 276; Neubauer v. State (1984), 36 Ill. Ct. Cl. 173.) Claimants have met their burden of proof as the snowplow driver negligently drove into the jackknifed tractor two times, with the second impact being the more violent impact.

Claimants have the burden of proving their damages. (Harris v. State (1989), 41 Ill. Ct. Cl. 184.) The evidence in this case on damages is very contradictory. The State’s expert testified no cab replacement was required, the damages were $2,400, and the repairs could have been made in five days. He also testified the salvage value was $5,000. The Claimant’s expert testified the cab had to be replaced, the damages were $28,234, the repairs took 48 days, and the salvage value was $1,000. While experts often disagree, the magnitude of difference in this case is substantial.

In this case the insurance company for Claimants paid for the new cab based on the appraisal of Mr. Hope. There was no evidence before the Court other than that he was a competent expert witness. The State did not object to his testimony or to his qualifications as an expert. The State s expert took the somewhat unusual step of reviewing Mr. Hope’s appraisal before he did his own independent appraisal. He then looked for reasons to dispute the findings of Mr. Hope. However, there were no pictures or direct testimony as to the pictures which would have documented for the Court that the panel damage, rivet damage and misalignment problems found by Mr. Hope did not in fact exist. The Claimants are entitled to fair and reasonable compensation for the damages to the tractor caused by the State. (Pugh v. State (1973), 29 Ill. Ct. Cl. 124.) The Claimants have presented substantial evidence as to the damages to the tractor which has not adequately been disputed by Respondent. Claimant Houlette has proven his damages calculated on the basis of his income tax return which is a method that has been approved by this Court. Guffey v. State (1987), 40 Ill. Ct. Cl. 179.

Fair and reasonable compensation to the Claimants is as follows: Pursuant to Count I, for Claimant, Allied Van Lines, and Ray Houlette, with the monies made payable to Allied Van Lines, Ray Houlette and Transport Indemnity Company, the sum of $22,984. These damages are determined in the following manner:

Damages to tractor related to snowplow impacts with replacement of cab $28,234.00

Less salvage value -5,000.00

Less deductible paid by Claimant Houlette - 250.00

$22,984.00

Pursuant to Count II,

Damages to Claimant, Ray Houlette:

Lost profits — 35 days at $158/day $ 5,530.00

Plus deductible paid by Claimant + 250.00

$ 5,780.00

It is therefore, ordered, adjudged and decreed that Claimants, Allied Van Lines, Ray Houlette and Transport Indemnity Company are awarded $22,984 in full and complete satisfaction of Count I of the first amended complaint and Claimant, Ray Houlette, is awarded $5,780 in full and complete satisfaction of Count II of the first amended complaint.


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    (No. 86-CC-0871
    Ivan Branch, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 31, 1992.

    Sheldon Hodes, for Claimant.
    Roland W. Burris, Attorney General (Janice SCHAFFRICK, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This is a complaint sounding in tort and filed by Claimant, Ivan Branch, on October 31, 1985, a prisoner of the Illinois Department of Corrections incarcerated at the Pontiac Correctional Center. He seeks damages for injuries he received on November 24, 1984, while working in the officers’ kitchen at Pontiac. The cause was tried by Commissioner Kane who has duly filed his report.

The Facts

On November 24, 1984, the Claimant was an inmate at the Pontiac Correctional Center. Mr. Branch had a job within the institution which required him to work in the officers’ kitchen. Included in his responsibilities were clean-up duties.

On the aforesaid date, the Claimant was told by the officer in charge of the officers’ kitchen to clean the ceiling of the kitchen so that paint could be applied to the ceiling. The Claimant told the officer that he did not want to clean the kitchen ceiling, but Claimant was informed that he would probably get a disciplinary ticket if he did not do what he was told. He was also told that he would jeopardize his job within the institution if he failed to follow orders. The Claimant testified that he then requested a ladder. The State’s witness could not dispute that statement.

There is no dispute that the ceiling in certain locations of that kitchen could not be reached by standing on the chair that was provided to the Claimant. While washing an area of the ceiling over the serving line, the Claimant stood on metal shelving which had butcher paper placed over it to protect it from the paint which would eventually be applied. While Claimant was on this paper, he slipped and fell, landing on his head and chest, and was temporarily knocked out. Claimant was hospitalized at St. James Hospital in Pontiac and eventually went back to the infirmary at the prison. He was later placed on lay-in where Claimant was temporarily assigned to his cell for rest. Claimant had pain, suffered from dizziness, and he complained of back problems and blackouts since the November 24 incident. Claimant had difficulty walking and used a cane for two months. Claimant testified as to an incident in January of 1985 where he fell and broke his jaw, but the evidence is too speculative to relate to the November fall without some expert testimony showing a causal connection.

The Law

The State owes a duty to inmates of its penal institutions to provide them with safe working conditions under which to perform their assigned work. Hammer v. State (1987), 40 Ill. Ct. Cl. 173; Reddock v. State (1978), 32 Ill. Ct. Cl. 611.

The State has a duty to provide inmates with proper safety equipment to complete assigned tasks. (McGee v. State (1977), 31 Ill. Ct. Cl. 326; Tucker v. State (1989), 42 Ill. Ct. Cl. 72.) In the present case, the absence of a ladder qualifies as a failure to provide proper equipment to perform an assigned task. Standing on a serving area in a kitchen which has been covered by waxed paper is not the safe method by which a person should attempt to clean ceilings. In the instant case, the Court finds that the State breached its duty to provide a safe work area with proper equipment for Claimant.

As we have done in many other cases, the Court notes that prisoners and inmates ordinarily do not possess the freedom of choice inherent in doctrines of assumed risk and contributory negligence and the record herein contains no evidence of assumption of risk or contributory negligence. (White v. State (1989), 41 Ill. Ct. Cl. 166.) There was also no comparative negligence proven. Douglas v. State (1989), 41 Ill. Ct. Cl. 29.

Claimant had pain and suffering due to the State’s negligence. Some back pain persists. The Claimant was hospitalized for the head and back injuries. He was rendered unconscious by the initial fall. The Court finds that Claimant was damaged in the amount of $3,500 due to the States negligence.

It is therefore ordered that Claimant is hereby awarded $3,500 as his damages.