text:
    (No. 5518
    W. R. Mount, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1977.

    Harris, Holbrook & Lambert, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Spivack, J.

Claimant seeks to recover from the State the value of seven yearling cattle and one cow which were killed as a result of the alleged negligence of a veterinarian who was employed by the Illinois Department of Agriculture.

A full hearing was conducted before Commissioner Robert F. Godfrey, who heard the testimony of several witnesses, received evidence and the briefs and arguments of Counsel. The Commissioner has duly filed his report which, together with the transcript, exhibits and briefs, is now before us. A brief summary of the facts so determined follows.

Claimant is a farmer on the Vienna Route in Johnson County. In February, 1968, he owned approximately 70 head of Black Angus cattle, including eleven yearlings which were required by State law to be tested for brucellosis. Near the end of January or the beginning of February, 1968, he was informed by Floyd Ford on behalf of the Department of Agriculture, a department of the Respondent, that he would have to gather up his cattle to be tested for brucellosis by agents of the Respondent. Doctor William Prusaczyk, a veterinarian employed by the Respondent in the Department of Agriculture, met with the Claimant and discussed the exact date for the testing of the cattle. Shortly thereafter, on the date agreed, Doctor Prusaczyk and Mr. Ford appeared at the Claimant’s farm to commence the testing for brucellosis. The Claimant’s headgate, located in his barn, was used to conduct this testing of the cattle. The use of this headgate required the corraling of the cattle in one of two lots adjacent to the barn. The cattle were corraled in a feed lot which was sloped at one end, allowing mud and slush to collect at the bottom of the slope. On that particular morning, the feed lot was in a particularly muddy condition due to the winter weather and a heavy rain that had fallen the night previous to the testing.

Doctor Prusaczyk and Mr. Ford arrived at approximately eight o’clock that morning and set up their testing equipment at the headgate within the barn. When they were ready to begin, Dr. Prusaczyk told the Claimant to begin bringing his cattle into the headgate. As only one animal could be tested at a time the remainder of the cattle, while awaiting testing, caused the muddy, slushy condition of the feed lot to worsen. The mud and slush at the bottom of the slope became approximately 10 to 20 inches deep.

Dr. Prusaczyk, Mr. Ford, Robert Mount and the Claimant were inside the barn. Several of Claimant’s agents and/or employees were outside herding and driving the cattle. Dr. Prusaczyk and Mr. Ford were conducting the brucellosis test. Robert Mount was operating the headgate chute. After approximately 15 to 20 cattle had been tested, it was noticed that they were becoming extremely muddy, and Dr. Prusaczyk suggested to Claimant that the calves be separated. Claimant refused to do this. After testing approximately two-thirds of the cattle, seven head and one cow were discovered dead in the mud and slush of the feed lot having been trampled in the mud and suffocated.

In order to recover, the following elements must be proven by the Claimant by a preponderance of the evidence: (i) that he was not contributorily negligent, (ii) that the State of Illinois was negligent, (iii) that the negligence of the State was the proximate cause of the occurrence, and (iv) that damages naturally flowed therefrom.

It is our opinion that Claimant has not sustained his burden of proof with respect to either of the first two requirements.

The evidence clearly shows that Claimant’s agents and/or employees were actually handling the cattle prior to being driven into the barn. Why they did not observe the animals being trampled is not explained, nor is the fact that the cattle apparently could have been corraled in another area which was not so muddy. Finally, nowhere does it appear that Claimant who was aware of the adverse conditions requested Respondent’s agents to call a halt to the testing. The sum total of the foregoing is tantamount to contributory negligence on the part of the Claimant.

Insofar as Respondent’s negligence is concerned, Claimant’s sole contention, that "Dr. Prusaczyk knew of the hazardous condition and should have taken steps to avoid injury to the cattle,” is wholly unsupported by the evidence. To the contrary, Dr. Prusaczyk did not know the condition of the corral, never having examined it, and the actual testing was conducted inside the barn. When he suspected the danger by the muddied appearance of the cattle, he suggested a separation of the smaller ones, but his suggestion was refused by the Claimant.

For the foregoing reasons, the claim is denied.


source: Caselaw Access Project

author: Perlin, C. J.

license: Public Domain

text:
    (No. 5541
    Richard Kolski, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1976.

    Louis G. Davidson & Associates, Ltd., Attorneys for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Richard Kolski, seeks to recover damages for the loss of his right leg which was amputated following an accident which occurred on September 20, 1967, when the motorcycle he was riding on Illinois State Route 22 near Lake Zurich, Illinois, left the highway on a curve and struck a guardrail. The guardrail had been damaged in an accident on August 12, 1967, which left the leading edge of the guardrail in a sharp, jagged condition. Claimant contends that his right leg struck the jagged edge of the rail, causing the injury which resulted in the amputation of the leg above the knee.

The amended complaint upon which this case was heard alleged three theories of recovery. In Count One Claimant asserts that the State was negligent in allowing the guardrail to remain in a jagged and defective condition, that the negligence of the State was the proximate cause of his injury, and that he was free of contributory negligence. In Count Two Claimant alleges that the State was guilty of wanton and willful misconduct in failing to repair the guardrail, that the wanton and willful misconduct of the State proximately caused his injury and that he was free of contributory wanton and willful misconduct. In Count Three Claimant asserts a theory of strict tort liability, i alleging that the State is strictly liable to Claimant for the loss of his right leg as a result of the dangerous and defective condition of the guardrail. However, during the course of oral argument, Claimant’s attorney advised the Court that Claimant was abandoning his strict liability claim.

Route 22 runs in a generally easterly and westerly direction, but curves to the north as it follows the southwest shoreline of Lake Zurich. The guardrail in question borders Route 22 on that curve. In its original, undamaged condition it was 75 feet long and was placed back about three and one-half feet from the edge of the road. The shoulder of the road was covered with gravel. The guardrail was composed of panels about 12 and one-half feet long which were bolted together and stood two and one-half to three feet above the ground. The top and bottom of the rail was rounded, and there was no sharp or protruding edges to the guardrail as it was originally installed.

James Zipp, the Chief of the Lake Zurich Police Department, and several other witnesses called on behalf of Claimant, testified that on August 12,1967, a car struck the west end of the guardrail, shearing off a section and bending the guardrail back from the highway. The accident left the west edge of the guardrail with a sharp, protruding edge, which was clearly shown by numerous photographs which were introduced into evidence.

Chief Zipp stated that between the accident on August 12, 1967, and the accident of September 20, 1967, the guardrail was not repaired. Zipp traveled past the guardrail several times daily during the course of his duties and would have noticed any repairs to the guardrail which was clearly visible from the road.

The accident involving Claimant occured at approximately 12:30 a.m. on September 20, 1967. It had rained the previous evening, and the pavement was damp. Claimant was 21 years old at the time of the accident and was coming from a bowling alley located on Route 22 about a quarter to one-half mile from the accident site. Claimant lived nearby and had often traveled the route by car and motorcycle.

As Claimant proceeded from the bowling alley on his motorcycle, he was followed by a car driven by one Michael Kelley, a friend with whom he had spent the evening. Claimant and Kelley had had two bottles of beer in the bowling alley and were going into Lake Zurich when the accident occurred. Kelley testified that he was about 50 yards behind Claimant and observed that the headlight and taillight on his motorcycle were operating. He estimated that Claimant was traveling about 30 miles per hour, which was the posted speed limit on Route 22. Kelley said that he saw Claimant traveling in a straight path on the right side of the road when he suddenly saw sparks coming from the motorcycle as it reached the western edge of the guardrail. He saw the motorcycle fly into the air, come down and skid along the road.

Chief Zipp was called to the scene immediately and found tire tracks on the shoulder of the road for a distance of 155 feet from where the motorcycle left the pavement near the west end of the guardrail. Zipp examined the guardrail and found blood on the leading, west edge, and traces of blood further along the guardrail.

Claimant was found in an embankment behind the guardrail. Zipp said that when he found Claimant, Claimant’s leg was "just hanging on by threads.” Claimant was in shock and received emergency medical treatment at the scene. He was taken to Condell Memorial Hospital where he was treated by Dr. Edwin L. Mauer, an orthopedic surgeon. Dr. Mauer testified that he found Claimant in a state of shock and with an "almost complete amputation of the lower end of the thigh just above the knee.”

Dr. Mauer determined that there was no chance of saving the leg and performed an amputation. Dr. Mauer described in detail the treatment which he rendered Claimant, and Claimant’s subsequent rehabilitation.

In answer to a hypothetical question propounded by Claimant’s attorney, Dr. Mauer stated that in his opinion, to a reasonable degree of medical certainty, the amputation of Claimant’s leg was caused by it coming into contact with the jagged edge of the guardrail.

Donald Fenner, who owned and operated a service station in Lake Zurich, examined the accident site on the morning following the accident. He said that he found an accumulation of gravel on the road.

Claimant testified that he had acquired the motorcycle involved in the accident in May or June, 1967. He said that he had driven past the accident site many times on the motorcycle and had always negotiated the curve at 30 miles per hour with no difficulty.

He stated that on the night of the accident he had slowed to 30 miles per hour as he approached the curve and had his motorcycle under control. There was no traffic ahead of him or coming towards him from the other direction. There was nothing to obstruct his vision, and he said that he could see both the road and the guardrail clearly. He stated that the last thing he remembered was entering the curve; he did not recall having gone off the road and had no explanation of having done so.

Claimant was hospitalized for four weeks following the accident. He testified in detail as to his hospital stay, and the "phantom pains” which he experienced following the amputation of his leg. During his high school years Claimant had been active on several athletic teams. After the amputation he was fitted with a prosthesis and attempted to resume some of his former athletic activities.

Louis Lesniak, a civil engineer employed by the Illinois Division of Highways, was called by Claimant as an adverse witness. Lesniak was employed as a field maintenance engineer in September, 1967. His offices were in Grays Lake, Illinois, approximately 15 miles from Lake Zurich. His office had a sub-storage station located in Lake Zurich, approximately one-half mile from the accident site. The storage station was frequented by State employees picking up equipment, and Lesniak said that these employees would necessarily pass the damaged guardrail in traveling between his offices and the storage station. These employees were instructed to observe the conditions of roads during the course of their work and to note conditions in need of repair.

Lesniak further testified that one week notice should have been ample time in which to repair the guardrail, and that it was an unusual departure from standard practice to permit the damaged guardrail to remain in disrepair from August 12 to September 20. He said that he knew of no reason which would have justified the delay in the repair of the guardrail.

We first consider whether, on these facts, Claimant has established a cause of action for negligence. This Court has held on numerous occasions that the State of Illinois is not an insurer of every accident which occurs upon its public highways. Link v. State, 24 Ill.Ct.Cl. 69; Palecki v. State, 27 Ill.Ct.Cl. 108. The State of Illinois is charged only with maintaining its highways in a reasonably safe condition and with using reasonable diligence in doing so. Garrett, et al. v. State, 22 Ill.Ct.Cl. 343. We have also held that the State’s duty of due and reasonable care extends to maintenance of the shoulders of roadways for the uses for which they are reasonably intended. Lee v. State, 22 Ill.Ct.Cl. 291; Welch v. State, 25 Ill.Ct.Cl. 270.

Thus, in order for Claimant to recover on his negligence claim, he bears the burden of proving by a preponderance of the evidence that the State breached its duty to use reasonable care in maintaining the guardrail along Route 22, that the negligence of the State was a proximate cause of his injury, and that he was free of contributory negligence.

The record does establish that the State did not use reasonable care in maintaining the guardrail alongside Route 22. The guardrail had been damaged in an automobile accident on August 12, 1967, yet the guardrail had not been repaired by September 20, 1967, when Claimant’s accident occurred. Photographs of the guardrail which were introduced into evidence show that the edge of the guardrail was in a dangerous condition on September 20, and the testimony of Chief Zipp establishes that the condition had existed since the August 12 accident.

The guardrail was clearly visible from Route 22, and p. State Highway Department storage shed which was frequented by State employees was located only a few hundred feet from the damaged guardrail. Even if the State did not have actual notice of the dangerous condition, the fact that the condition had existed for over one month is sufficient to charge the State with constructive notice of the condition. See Candle v. State, 19 Ill.Ct.Cl. 35; Pyle v. State, No. 5343 (filed November 19, 1973). Louis Lesniak, a State maintenance engineer, testified that the guardrail should have been repaired within one week of its having been damaged, and that it was an unusual departure from standard practice for the guardrail to have remained in disrepair for as long as one month.

For these reasons, we find that the State did not use reasonable care in maintaining the guardrail.

We further find that the failure of the State to properly maintain the guardrail was a proximate cause of Claimant’s injury. Respondent contends that Claimant’s leg did not strike the jagged edge of the guardrail, but rather that the leg was crushed against the undamaged length of the rail. However, we think that the preponderance of the evidence is that Claimant’s leg did strike the jagged edge of the guardrail causing the loss of Claimant’s leg.

Chief Zipp, who was at the accident site almost immediately, stated that he examined the edge of the rail and found Claimant’s blood on the jagged end. He also found tire tracks from a motorcycle which led to the sharp edge.

Most significantly, Dr. Mauer testified that he observed an "almost complete traumatic amputation” of Claimant’s leg when he saw Claimant in the hospital emergency room. He added that such an injury was most likely caused by striking a sharp object, such as the damaged end of the guardrail. Dr. Mauer said that it was improbable that such an injury was caused by the leg being crushed against the length of the guardrail, as he did not observe any bruises or abrasions around the amputation site.

We therefore conclude that Claimant’s leg struck the damaged edge of the guardrail, and that the negligence of the State, in permitting the guardrail to remain in a dangerous condition for over one month, was a proximate cause of the loss of Claimant’s leg.

Respondent strongly contends that Claimant has failed to prove his freedom from contributory negligence. In resolving this issue, we are first faced with the fact that Claimant has offered no explanation for his motorcycle having left the highway. Claimant himself has no recollection of the incident after he entered the curve on Route 22. However, Michael Kelley, who was following Claimant in an automobile and who was an eyewitness to the accident, testified that Claimant was proceeding at a lawful speed and in a straight line when his motorcycle suddenly left the road and struck the guardrail. This testimony does tend to establish that Claimant was operating the motorcycle in a lawful and proper manner at the time of the accident. We also note the testimony of Donald Fenner who examined the accident site and found an accumulation of gravel on the highway.

Based on the foregoing testimony we conclude that Claimant has by a preponderance of the evidence established his freedom from contributory negligence.

It is difficult for this Court to understand why Chief Zipp apparently failed to notify appropriate authorities of the dangerous condition of the guardrail in view of the fact that he traveled past the guardrail several times daily. It is also difficult to understand the failure of State employees to report the damaged condition of the guardrail, as indicated by the testimony of Field Maintenance Engineer Louis Lesniak. The Court is constrained to express concern at such an apparent lack of cooperation and due care by state and municipal personnel. We believe that the safety of our citizéns requires that a greater degree of care be exercised than exhibited in this instance by the local Chief of Police and the State’s employees.

We feel obligated on the basis of the facts contained in this record to enter an award on behalf of Claimant.

Claimant was 21 years old at the time of the accident and has a life expectancy of over 40 years. He has incurred substantial medical expenses as a result of the loss of his leg. Claimant is hereby awarded the sum of Twenty-Five Thousand Dollars ($25,000).


author: Burks, J.

text:
    (No. 5550
    Iris A. Alsup, Et Al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 3, 1976.

      Webber, Balbach, Thies and Follmer, Attorneys for Claimants.
    William J. Scott, Attorney General; William E. Webber and Douglas G. Olson, Assistant Attorneys General, for Respondent.
   Burks, J.

Claimants seek recovery for Claimants’ intestates Fred Glover, his wife, Lula Mae Glover, and their children, Danny Lee Glover and Dennis James Glover. Also, recovery is sought for injuries sustained by Florence Ann Elam and Jerry Lynn Glover.

The evidence shows that at twilight on August 10, 1966, Fred Glover and his family were driving south on Interstate 55 near the Williams Road Overpass in Will County, Illinois. Fred Glover, his wife, Lula Mae Glover, and their children, Danny Lee, Dennis James, Florence and Jerry, were on a vacation trip to Arkansas and had left the family home in Romeoville, Illinois earlier in the day.

As the Glover vehicle approached the Williams Road Overpass on Interstate 55, the vehicle went out of control and collided with a bridge abutment. Serious injuries were sustained by Florence Ann Glover and her brother, Jerry Lynn Glover; the remaining members of the Glover family were killed. Claimants charge that the State was negligent in designing and constructing the shoulder surfaces adjoining the highway, designing the bridge abutment without a guardrail, failing to keep the highway in a reasonably safe condition, failing to warn of a hidden curve, and failing to design and maintain the highway and shoulders in a manner adequate for anticipated usage.

The evidence shows that the Glover vehicle was being operated on the left-hand side of the southbound lanes as it approached the Williams Road Overpass. After having passed several vehicles, it remained on the left side of the southbound lanes and drifted onto the asphalt shoulder which lies adjacent to and east of the east edge of the southbound lanes. As the Glover automobile started to pull back onto the traveled portion of the southbound lanes, the vehicle appeared to grab the edge of the paved portion of the road at the left rear wheel and go out of control. The vehicle veered from the right to the left two or three times and skidded into a bridge abutment at the Williams Road Overpass.

The two surviving Glover children had no recollection of the facts of the accident, apparently as a result of traumatically induced amnesia.

David Swank, a truck driver from Williamsville, Missouri, who was driving south on Interstate 55 at the scene of the accident, was an eyewitness. Swank observed the Glover vehicle as it passed a truck behind his and proceeded to pass his truck in the left-hand, southbound lane. Swank estimated Glover’s speed to be 55-65 miles per hour. The Glover vehicle remained in the left-hand southbound lane after having passed Swank’s vehicle and slowly drifted to the left onto the asphalt shoulder, so that the left two wheels of the Glover vehicle were off of the main traveled portion of the southbound lanes. Swank testified that as the Glover vehicle started to pull back to the right and onto the traveled portion of the southbound lanes, the left rear wheel of the Glover car grabbed the edge of the paved portion of the highway causing the car to lurch to the right and begin veering from right to left. Swank testified that after the left tires of the Glover vehicle drifted onto the shoulder, the car did not decrease its speed prior to attempting to return to the main traveled portion of the southbound lanes. Swank was shown to be an experienced truck driver.

The bulk of Claimants’ evidence concerned the question of the presence of a four to six inch drop-off between the asphalt shoulder and the concrete portion of the highway. It was maintained by Claimants that this drop-off caused the Glover vehicle to go out of control and proximately resulted in the deaths and injuries for which damages are claimed.

The day after the accident several members of the Claimants’ family went to the scene of the accident. Herbert Blalock testified that the shoulders of the highway at the accident scene were washed out and that there was a drop-off. Blalock testified that the drop-off was from four to six inches.

Charles Inboden testified there was a deep drop-off.

State Troopers Hershel Goken and Robert Smith were at the scene of the accident and testified that they observed no unusual conditions along the shoulders of the highway.

John Watson, a wrecker truck driver who was present at the scene, testified that he was familiar with the condition of the highway at the scene of the accident and related that the shoulders were in good condition. Watson testified that there was a separation of the blacktop and the concrete highway at the shoulder of approximately one inch to one and one-half inches.

John Picciolo, a maintenance worker for the State of Illinois whose responsibilities covered the area of 1-55 near the Williams Road Overpass, testified that he inspected that section of 1-55 every day and sometimes twice a day. His duties included repairing the road and the shoulders. Picciolo testified that at the area of the accident, the drop-off from the surface of the highway to the shoulder could have been three to four inches.

Fred Mason, a traffic engineer for the State of Illinois during August, 1966, viewed the accident scene three days after the event. Mason’s report revealed that the median shoulder at the scene of the accident was one inch or two inches low along the pavement edge.

Steve Kakavas, a maintenance field engineer for the State of Illinois, inspected the highway prior to the accident in question at least once a week. He recalled that the inside shoulder of southbound 1-55 at the Williams Road Overpass was always in good condition. He testified that the median shoulders had very little traffic on them.

Claimants rely principally on their allegation that the State had failed to properly maintain the shoulder of the road at the scene of the accident. There was no sufficient proof adduced tending to substantiate Claimants’ charges relative to the State’s design of the shoulder or highway or the design of the bridge abutment.

In order to recover, the following elements must be proven:

(1) That the State of Illinois was negligent,

(2) That such negligence was the proximate cause of the deaths and injuries alleged in the Complaint, and,

(3) That the occupants of the car were not contributorily negligent.

It is Claimants’ main contention that the accident was caused by the condition of the road, in that the shoulder was several inches lower than the road.

From the testimony of the eyewitness in this case, it appears that Fred Glover was contributorily negligent, and that his own action proximately caused the accident resulting in his death. At the time the Glover vehicle drifted onto the median shoulder, Glover was apparently still in control of his car. Then, as the Glover vehicle returned to the traveled portion of the road, it went out of control, resulting in the accident. The speed of the Glover vehicle was not reduced prior to returning all four wheels to the main traveled portion of the highway.

Section Fifty-four of the Uniform Act Regulating Traffic on Highways (Ill.Rev.Stat., Ch. 951/2, §151) provided that "upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway.” Exceptions to this rule do not apply in the incident case. "Roadway,” as defined by the Illinois Vehicle Code, does not include the shoulders thereof. In the case of Sommer v. State of Illinois, 21 Ill.Ct.Cl. 259, this Court stated:

We do not feel respondent has a duty to maintain the shoulders of its highways in a manner that would insure the safety of vehicles turning off onto the shoulder for whatever their purpose might be, and then attempting to return to the roadway, while traveling at the same speed.

In the case of Lee v. State of Illinois, 25 Ill.Ct.Cl. 29, 34, this Court stated:

While the State must use reasonable care in maintaining the shoulder of a highway, there is no basis to hold that a difference of three or four inches in the levels of the road and shoulder constitutes a dangerous condition per se.

In the opinion of this Court, Claimant has failed to sustain the burden of proof that Fred Glover was free from contributory negligence.

The further question arises as to the claims on behalf of and as a result of the injuries and deaths sustained by other occupants of the Glover vehicle.

The record in this cause does not support the contention of Claimants that a defective condition existed on the highway and shoulder which was the proximate cause of the accident resulting in Claimants’ injuries. As set forth above, there was ample evidence to compel the conclusion that the State used reasonable care in the inspection and maintenance of Interstate 55 at and near the scene of this accident. Steve Kakavas, the highway maintenance field engineer, testified that the median shoulders of Interstate Route 55 were to provide an area where, if a car ran off the road, it "could decelerate prior to getting back on the pavement.”

Charles Schmidt, a state highway engineer who investigated the area of the accident, testified that the median shoulder was not built for operating at normal highway speed.

The eyewitness truck driver, David Swank, testified without contradiction that the Glover automobile was still traveling about 55-65 miles per hour when it attempted to return to the paved portion of Interstate 55.

In the opinion of this Court, Claimants have failed to sustain their burden of proof that the State did not use reasonable care in the maintenance of the shoulders of the highway at the scene of this accident. The claims of Iris A. Alsup as Administratrix, and the claims of Florence Elam and Jerry Glover, are hereby denied.


author: Spivack, J.

text:
    (No. 5627
    Jeffrey A. Lind, Claimant vs. State of Illinois, and Department of Public Works and Buildings, Respondents.

      Opinion filed April 18, 1977.

    Morton S. Goldfine and John C. Newell, Jr., Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Spivack, J.

Claimant, Jeffrey A. Lind, by his mother and next friend, seeks to recover from the State of Illinois a sum of $25,000.00 for personal injuries allegedly sustained as a result of Respondent’s negligence, whereby Claimant was severely and permanently injured.

The undisputed facts are as follows: Jeffrey Lind, on August 3, 1966, was seventeen years of age and a full-time employee in Havana, Illinois; on the day of the accident, he had been working in Vermont, Illinois. That morning he had ridden to work as a passenger on the motorcycle of Roger Lynn Mason. As they rode to work in a westerly direction on Route 136, Claimant noticed barricades on the south side of the road. Lind and Mason left work about 5:00 p.m. and stopped at Ipave, Mason’s cousin’s home, visiting there for about three hours. They did not eat there, although Jack Russell drank "less than” a can of beer and Lind and Mason drank some "pop.” They were not in a hurry to return home.

After leaving Ipave on the way home, Lind again rode as a passenger on Mason’s motorcycle. They were following Jack Russell, who was also operating a motorcycle, both machines proceeding in an easterly direction on Route 136. Although there is some inconsistency regarding the actual time of the occurrence, all three agreed that the night was clear and dry and was "pitch black.”

Route 136 had been torn up for repair work. Around and along the construction site were barricades. Prior to reaching the construction, Lind testified that he saw a "Construction Ahead” sign, then another sign which read "One Lane Road Ahead.” Both motorcycles were traveling at a speed of 40 to 50 miles per hour and their headlights were on. The two motorcycles successfully avoided many barricades by riding in the left lane of the highway. They swung back to the right side of the road as they approached a hill or rise to avoid any chance of collision with an approaching car, although there was no oncoming traffic. At the top of the hill was a barricade with three working lights. They went back to the right side of the road because they thought that the construction had ended. However, a short distance from the barricade at the top of the hill was another barricade which was apparently lying on its side. Russell avoided this one, but Mason’s motorcycle hit it. This collision badly broke Lind’s leg. Although it was promptly set and is now healed, Lind was totally incapacitated for a period of eight months and still complains of intermittent pains, a slight limp, and loss of normal use.

Lind, due to his injury, was not able to take notice of the surroundings after the accident. His witnesses, Mason and Russell, testified as to the appearance of the barricades. They stated that the barricade hit by Mason was down before he approached it. They were not quite sure whether the barricade hit was the last of the barricades but stated that there were two or three barricades down and not all equipped with blinking lights. The ones that had lights were, by Mason’s and Russell’s testimony, not working. Russell stated that as Mason went to get aid for Lind, Russell and an unknown state trooper set the barricades upright and worked to get the flashes working. This state trooper was not brought in as a witness.

A witness for the Respondent, Fay Shawgo, an employee of the State, testified that he was called from home on August 3, 1966, to get some barricades righted and operational on Route 136. He went out to the construction site at dusk and, although he did not know the exact time, he stated that one could still drive without lights. After he set up the fallen barricades, he returned home using his car lights. He stated that upon his arrival at the scene he found that, although down, the barricades’ blinkers were still all working. He was careful to check that. A report from the Division of Highways was filed July 23, 1970, stating that all the barricades were equipped with flasher lights.

Lind, the Claimant in this action, alleges that the State was negligent in the maintenance of the barricades at the construction site. The force of the Claimant’s argument is that the barricades were not properly lit and/or maintained so as to inform motorists of their danger and that this failure was a breach of duty by the State and the proximate cause of Claimant’s injury.

There is no substantial disagreement between the parties as to the applicable law; the dispute arises as to the application of the law to the facts presented.

The mere happening of an accident does not of itself raise any presumption of negligence on the part of defendant. Brown vs. Beyles, 27 Ill.App.2d, 114, 169 N.E.2d 273, (1960). This is not a strict liability action.

The State is not an insurer against accidents on its highways. Bovey, et al. vs. State, 22 Ill.Ct.Cl. 95, 108, (1955), "[The State] is required only to keep them in a reasonably safe condition for the purpose to which the portion in question is devoted, and the placing of signs warning of the conditions to be met, fulfills the obligation of the State to the users of the highway.”

It is the obligation of the Claimant to prove by a preponderance of the evidence that the Respondent had actual or constructive knowledge of the defect which is alleged to have caused the injury. Manus vs. State of Illinois, 22 Ill.Ct.Cl. 335, 339.

Claimant argues that not only was constructive notice of the allegedly dangerous conditions imposed upon the Respondent by the decision in Whitehouse Trucking Co. vs. State of Illinois, 25 Ill.Ct.Cl. 126, but further that Whitehouse requires the State to maintain the warning devices up to the precise moment of the accident. He relies on the language at page 136: "adequate warning devices in place and in working order at the time of the accident’ (sic). However, at 135 the decision states that "(T)he court is also of the opinion that, once the warning devices are in place, it is the duty of the State to take reasonable precaution to see that such warning devices remain in place and in working order.” (Emphasis added.) We believe the key word in this decision is "reasonable.”

"Reasonable” is, of course, a term of art and cannot be held to a hard and fast definition. Black’s Law Dictionary (4th Ed. 1951 p. 1431) defines reasonable as "just; proper; ordinary or usual. Fit and appropriate to the end in view.”

Whitehouse held that it was not reasonable, in view of the stormy weather present there, for the foreman to leave the warning signals alone all night with no one to check them. Likewise, in another case advanced by the Claimant, Bovey vs. State, 22 Ill.Ct.Cl. 95, it was not reasonable for the State to maintain only one sign which did not adequately warn of the hazards ahead in view of the knowledge the State had of the dangerous conditions existing.

The facts of the case at bar are substantially different from Whitehouse and Bovey. Here all barricades had flashers and were righted and checked by Mr. Shawgo immediately before the occurrence. The weather was clear and dry. There was no reason for anyone to know that the barricades would not be in order shortly after they had been checked. It is clear that the State took reasonable precautions to see that the warning devices were in place and in working order.

In view of our finding that Claimant has failed to prove by a preponderance of the evidence that the State breached its duty of care to Claimant, it is not necessary to consider whether on the facts the Claimant: (i) sustained his burden of proof that he was not contributorily negligent, (ii) whether the driver was negligent, (iii) whether the driver’s negligence, if any, was imputable to Claimant, and (iv) whether the negligence of the State, had it been proved, was the proximate cause of the accident or whether the negligence of the driver, if any, was an intervening cause.

The claim is hereby denied.


author: Holderman, J.

text:
    (No. 5641
    David McGee, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1977.

      John S. Adler of Asher, Greenfield, Gubbins & Segall, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Holderman, J.

This matter comes before the Court as a result of an accident sustained by Claimant, David McGee, while an inmate of the Illinois State Penitentiary of Joliet, Illinois.

On May 12, 1967, Claimant’s superiors in said penitentiary assigned him to work in the shoe factory and, in connection with this work, he was directed and required to operate an electrically operated shoe repair machine.

Claimant’s Second Amended Complaint alleges, in part, as follows:

"3. That said shoe repair machine was an inherently dangerous instrumentality and that said Respondent knew and by the exercise of reasonable care or diligence could or should have known of the machine’s dangerous propensities and that the Claimant could or might suffer injuries therefrom.

4. That the Claimant, when assigned to work with and upon said machine, had no prior technical or other knowledge of the mechanical operation of said machine or of its then mechanical condition.

5. That at the time said Claimant was directed and required to operate said machine, the Respondent knew or by the exercise of reasonable care or diligence could or should have known that said machine was defective and in poor mechanical condition and that such defect and condition could or might cause serious bodily injury to the Claimant herein.

6. That a grinding or scouring wheel was attached to and was an integral part of said machine which was defective and inherently dangerous by virtue of the use to which it was put and the purpose for which it was designed and used. That the Respondent knew or by the exercise of reasonable care or diligence could or should have known that said grinding or scouring wheel was defective and could or might cause injury to the Claimant herein.

7. That on May 12, 1967, the Claimant was operating said machine under and in accordance with the directions of his superiors of said penitentiary as aforesaid, and while in the course of said operation, parts of said machine, such as the locking device, broke or came loose and fell apart and the grinding or scouring wheel broke, fractured, and disintegrated, causing certain parts or fragments of said machine to strike the Claimant about his head, face, and eyes, as a result of which Claimant suffered serious injuries and the permanent loss of vision in his right eye.

8. That the Respondent committed one or more of the following wrongful, careless or negligent acts or omissions, to-wit:

a. It failed to properly instruct the Claimant as to the mechanical operation of said machine;
b. It failed to inspect and maintain said machine;
c. It failed to repair or replace old, worn-out or defective parts of said machine;
d. It failed to provide the Claimant with a safe place wherein to perform his work;
e. It failed to provide the Claimant with proper safety headdress, clothing or other guards or safety devices so as to avoid being injured in the event of a malfunction of said machine;
f. It failed to properly supervise said machine and the operation thereof;
g. It permitted the Claimant to operate said machine with knowledge that it was defective, worn-out, and in poor operating condition; and
h. It failed to properly warn the Claimant of the machine’s dangerous propensities and the defective condition of which said machine existed prior to and at the time of said occurrence.”

The facts are undisputed that Claimant was operating a grinding wheel at the speed of 3,500 revolutions per minute, and that while operating said machine, a portion of the wheel came off and struck Claimant in the right eye.

The undisputed testimony of the Claimant is that he was not supplied with either safety goggles or a face shield. There was some evidence introduced to the effect that this should be a mandatory requirement for a machine such as the one involved in this accident.

The machine in question is one in which the grinding wheels are used to sandpaper and smooth shoes. The sandpaper is attached to the wheel and has to be changed several times a day depending upon the use. One of the safety features of the machine is a movable guard. The evidence indicates that if the guard is placed in a "down” position, it adds a safety factor to the operation of said machine.

The Claimant testified that when he started to use the machine, the guard was down, and one of the prison attendants testified that the day after the accident happened, the guard was up which would allow the broken pieces of the wheel to fly in an upward manner and cause the injury.

Claimant indicates that there was a locking device that came loose which caused the accident in question.

Respondent denies liability on the grounds that the Claimant was guilty of contributory negligence in the operation of the machine, and that his contributory negligence was the proximate cause of the accident.

Claimant testified he had used this machine for a period of 60 to 90 days, that he had had very little instruction as to the use of the same, and that he was not a trained mechanic. He also testified he had never seen the manual that was issued by the company to be used by the operators of said machine. He further testified he had been given 15 to 20 minutes instruction relative to the use of this machine.

The duty required of the State in cases of this nature is well set forth in 25 Ill.Ct.Cl. 237, where the following language is used:

The State cannot escape its duty to an individual merely because he or she is an inmate of an institution. This Court has held on numerous occasions that the State must meet the same standards of care and safety as are required of private industry.

The Court calls attention to the fact that an inmate of a State institution is an entirely different situation than an employee on the outside who can quit or refuse to work if conditions are unsafe. An inmate of a State institution, such as a State penitentiary, does not have the liberty of choice and must work under conditions that are assigned to him.

The defenses of assumption of risk and contributory negligence are often properly available to the Respondent in actions brought by a convict, but certainly not under the facts in this case. The rule is well stated in Moore vs. State, 21 Ill.Ct.Cl. 282, 290:

Claimant, as a convict, was required to take orders, and carry them out. To refuse to do so would subject him to disciplinary action, and the forfeiture of his limited privileges, including prompt consideration for parole. Thus, he did not occupy a position of independence which a person outside a penitentiary occupies. His choice of action being limited, he, therefore, kept silent and did as he was ordered. In fact, he did not possess, under the circumstances in this case, the freedom of choice inherent in the doctrines of assumed risk and contributory negligence. Burke vs. State of Illinois, 27 Ill.Ct.Cl. 379.

This Court has previously held that the standards of the Health and Safety Act that apply to other industries also apply to the State.

It appears to this Court that if either of the two safety regulations, such as a plexi-glass safety shield on the machine or, in the absence of that, safety goggles or a face shield had been provided to Claimant, the accident would never have happened.

Before Claimant can recover, he must prove that his negligence did not contribute to the accident and that the negligence of the State was the proximate cause of the accident.

It is the opinion of this Court that the proximate cause of the injury was the failure of the State to use proper precautions in its supervision of the workers and machinery and also in its failure to provide proper safety equipment to Claimant.

The problem of determining the amount of Claimant’s award is one of some difficulty. This has been discussed in other Court of Claims cases, particularly in 28 Ill.Ct.Cl. 238, where the Court stated "that compensation is incapable of exact mathematical calculation.”

Considering all the facts and circumstances in this case, we conclude an award for damages to the Claimant in the amount of Fifteen Thousand Dollars ($15,000.00) would be fair and reasonable.

Claimant, David McGee, is hereby awarded damages for his personal injuries in the total sum of Fifteen Thousand Dollars ($15,000.00).


text:
    (No. 5700
    Roman Santiago, Et Al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 27, 1977.

    Karlin and Fleisher, Attorney for Claimants.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Spivack, J.

The claim herein presented is one sounding in tort; specifically, that Claimants were injured and damaged in varying degrees as a proximate result of the negligence of the driver of an Emergency Patrol Vehicle ("E.P.V.”) belonging to and under the control of the State of Illinois, Division of Highways.

The matter was assigned to Commissioner J. Barry Fisher who received evidence and heard arguments of counsel on June 21, 1972, July 17, 1972, and September 6, 1972. In due time, the Commissioner filed his report, the transcripts of the testimony and argument, various exhibits and the parties’ briefs and arguments with the Court, all of which are now before us.

The facts adduced by the Commissioner from the testimony of Claimant, of J. Shapiro (driver of the E.P.V.), of R. Pecaut (Illinois State Trooper called to the scene immediately following the accident), and of R. H. Swan (an independent eye witness) are in summary as follows:

On November 3, 1967, between 2:30 and 3:00 p.m. , Claimant was driving southbound on 194 C (Calumet Expressway), a six-lane highway divided by a median strip. Just south of 154th Street overpass, Claimant was in the inside lane (east), proceeding at about 45 miles per hour.

At said time and place, there were three vehicles stopped on the highway facing south. One passenger vehicle was entirely on the median strip and was stuck either in the mud or in a rut. A second vehicle, a jeep, was partly on the highway and partly on the median strip. The third vehicle, the E.P.V., was north of the other two, and partly on the highway and partly on the median.

The weather at the time was overcast or foggy, but visibility was good. The pavement was wet. The stopped vehicles were in a modest curve, however they could be seen from the north at a distance of one-half to one mile.

The emergency vehicle had flasher lights and dome lights which were on and functioning. No flares or fuses were on the highway north of the stopped vehicles. No evidence was given as to conditions of traffic on the outside lanes (west) at the time of the occurrence.

Claimant was behind one other vehicle which was between him and the E.P.V. This other unidentified vehicle swerved to the outside (west) lane and Claimant found himself some "twenty-five feet” from the E.P.V. He was unable to swerve or stop and struck the rear of the E.P.V. with the front of his automobile. Injuries to Claimant and his wife and child who were passengers resulted from the collision.

Claimant’s theory of the State’s liability in this case rests upon two theories of negligence:

First, that the E.P.V. should, in the exercise of ordinary care, have pulled entirely off the highway and onto the median. In support of this contention, Claimant direct our attention to Ill.Rev.Stat., Ch. 95-1/2, §11-1301(a), which provides that no person shall leave any vehicle stopped upon a highway when it is practical to leave it stopped off the highway.

This argument fails for two reasons: first, that it would not have been practical to stop the E.P.V. entirely on the median since that would have left exposed to oncoming traffic the jeep that was partly on and partly off the highway. By being in the exact position it was, the E.P.V. successfully acted as a shield for the jeep. Secondly, Ill.Rev.Stat., Ch. 95-1/2, §411-205 (b), (c) and (d) provide that an emergency vehicle may stop irrespective of the chapter’s other provisions if an appropriate visual signal is used. Clearly, the use and operation of the E.P.V.’s flasher and dome lights were appropriate visual signals.

Claimant’s second theory of the State’s negligence is based upon the contention that the exercise of ordinary care would require the E.P.V. to place flares or fuses behind the vehicle. We do not agree in view of the fact that the E.P.V. flashing and turning lights were visible for at least one-half mile from its stopped position. Had not these lights been visible for a reasonable distance, then perhaps it could be persuasively argued that ordinary care would require some additional advance warning to be given to oncoming traffic.

In order for Claimant to recover, he must prove by a preponderance of the evidence that (1) Claimant was free from contributory negligence, (2) Respondent was negligent, and (3) such negligence was the proximate cause of the accident. Wasilkowski vs. State, (No. 4995, Aug. 6, 1973); Weygandt vs. State, 23 Ill.Ct.Cl. 478.

Claimant has wholly failed to prove his freedom from contributory negligence. No explanation is given for his failure to turn his car into the inside lane just prior to the collision, as did the unidentified car ahead; no explanation is given for his being "twenty-five feet” from the E.P.V. when he first observed it; no explanation is given for his being unable to stop his vehicle in time to avoid an obstruction in the highway; no explanation is given for his not seeing a large emergency vehicle with lights flashing and turning until he was within two car lengths from it. We can only speculate that Claimant must have been traveling too closely to the car ahead, too fast under the conditions of weather and traffic prevailing, and been inattentive to the conditions of traffic then existent.

Claimant, as previously discussed in this Opinion, has likewise failed to prove by a preponderance of the evidence that Respondent violated either its statutory duty or common law duty of ordinary care.

Finally, it is clear from, the evidence that the proximate cause of the accident and of the injuries to all of the Claimants was the result of the negligence of the Claimant driver.

For all of the foregoing reasons, the claim of each Claimant herein is denied.


text:
    (No. 5703
    Weiboldt Stores, Inc. Et Al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 3, 1976.

    Edward Warden and Thomas E. Greenland, Attorneys for Claimants.
    William J. Scott, Attorney General; Edward L. S. Arkema, Jr., and Bonniem G. Walt, Assistant Attorneys General, for Respondent.
   Burks, J.

This is an action for damages allegedly incurred by Claimants as a result of Respondent’s alleged breach of contract for depositing on Claimants’ property a large quantity of excavated material and permitting such material to remain on Claimants’ property beyond the period allegedly permitted.

In approximately the middle of 1966, negotiations were entered into between the Bureau of Right-of-Way and Permits of the State of Illinois, Division of Waterways and the Chicago & Northwestern Railway in regards to the Railway’s property abutting the Weller Creek in Des Plaines, Illinois, for the purpose of granting an easement to the State to facilitate the State’s construction of the Weller Creek project, designed to provide flood control and drainage improvement for Des Plaines and the surrounding area. Negotiations continued until January, 1968, at which time the Respondent sent to the Chicago & Northwestern Railway Company the project plan and specification upon which the contractors were to submit bids. These documents were accompanied by a letter dated January 12, 1968, in which it was requested that the Railway Company reply relative to the spoil areas designated in the plans and specifications. The dirt removed by excavation of water channels is referred to as spoil. The plans and specifications designated areas on the Claimants’ property upon which spoil was to be deposited. These plans and specifications were returned to the Respondent by mail without comment.

On March 11, 1968, a written agreement was entered into between the Chicago & Northwestern Railway Company, the City of Des Plaines, and the State of Illinois, setting out the respective rights and duties of the parties relevant to the Weller Creek project. No specific mention of spoil areas was contained in this written agreement.

In September of 1968, the Schless Construction Company and Respondent entered into an agreement whereby Schless agreed to construct the Weller Creek project in accordance with the State of Illinois plans and specifications.

Work on the project commenced in September, 1968, and included the excavation of large quantities of spoil that were piled on the bank of the creek on the property of the Chicago & Northwestern Railway. No areas other than those designated as such in the plans and specifications were used as spoil areas.

On October 1, 1968, a letter was sent by the Chicago & Northwestern Railway to the State of Illinois requesting that the spoil material not be disposed of on railroad property. Thereafter, on October 2, 1968, a telegram was sent by the State of Illinois to Schless Construction Company directing Schless,

to spoil excess material from that work upon the property of the Chicago & Northwestern Railway ... in accordance with the plans and specifications as bid by your (Schless) firm.

On October 16, 1968, the Claimant, Chicago and Northwestern Railway, agreed to convey to Claimant, Weiboldt Stores, Inc., the real estate involved in this case, with the stipulation that the spoil material would be removed at no expense to Weiboldt.

On November 4, 1968, the Claimant, Chicago & Northwestern Railway, the City of Des Plaines, and the State of Illinois executed a rider to their March 11, 1968, agreement whereby it was specified that the State’s easement for construction would expire on August 1, 1969.

By letter dated September 4, 1969, the Chicago & Northwestern Railway demanded that the State remove the spoil at the State’s expense from the property now held by Weiboldt Stores, Inc. In reply, by letter dated September 8, 1969, the State proposed an alternative solution to the problem, which was not accepted by the Chicago & Northwestern Railway.

In late 1969, inasmuch as the problem remained unsolved, the Claimant, Weiboldt Stores, Inc., removed the spoil material at its own expense of approximately $85,000.00

The issue before the Court is whether the State, by its agreement with the Chicago & Northwestern Railway, had a duty to remove the spoil material.

Although there was extensive and conflicting testimony heard relevant to whether any spoil was deposited after the August 1, 1969, deadline and as to the size of the spoil piles, this Court is satisfied, from the evidence, that no substantial deposits of spoil were made after August 1, 1969, and that the height of the spoil piles were within the limitations of the plans and specifications.

The Claimants contend that inasmuch as the contract between the parties was silent as to the plans and specifications, that these plans and specifications are not to be considered as part of the contract and that there were provisions in the contract which granted to the State only the right to enter upon and use the Claimants’ property for the purpose of dredging and construction and not for the purpose of deposits of spoil material on the Claimants’ property. Furthermore, Claimants contend that it was customary in the industry to remove spoil material from canal and creek projects and deposit them to a dump and site, Boynton v. Lynn Gas Light Co., 124 Mass. 197 as authority.

We cannot agree with these contentions. The deposit of spoil on the property was contemplated by the parties to the agreement. The plans and specifications for the Weller Creek project were transmitted to the Claimant on January 12, 1968. Page two of the plans contains a drawing captioned "location of spoil areas.” Section 30-1 of the specifications states:

All excavated materials shall be disposed of as shown on the plans, or as directed by the engineer. All excess excavation and materials, which are designated by the engineer as unsuitable for use in embankments or spoil areas, shall be disposed of by the contractor at his sole expense.

Section 50-4 of the specifications also mentions spoil areas.

It is inconceivable that a project of the magnitude of the Weller Creek project would be undertaken without approved plans and specifications. It is also inconceivable that the Chicago & Northwestern Railway would have entered into the written contract without having first approved of the plans and specifications. We view the silence of the Chicago & Northwestern Railway as an approval of the plans and specifications which formed the basis of the written contract entered into little more than a month later. Having been contemplated by the parties, and having been approved by the parties, the plans and specifications are considered to be part of the contract even though they are not referred to in the body of the contract. Landolt v. Stratmann, 87 Ill.App.2d 81, 230 N.E.2d 498.

In any event, the contract between the parties is clear that if there was any duty to remove the spoil, that duty lay with the City of Des Plaines and not the State of Illinois.

Section 17 of the written contract states:

The COMPANY reserves the right to use, occupy and enjoy its tracks, property and right-of-way, for such purpose, in such manner, and at such time as it shall desire, the same as if this instrument had not been executed by it. If any such use shall necessitate any change, repair, renewal, removal or relocation of said structure or drainage facilities, the CITY shall perform such work at such time as the COMPANY may approve and if the CITY fails to do so such work may be performed by the COMPANY at the expense of the CITY and the COMPANY shall not be liable to the CITY on account of any damage growing out of any use which the COMPANY may make of its tracks, property and right-of-way.

Section 20 of the agreement states:

. . . any expense in restoring the COMPANY’S property to its prior condition or to a condition satisfactory to the COMPANY shall be borne by the CITY.

These terms of the agreement clearly specify that it is the duty of the City of Des Plaines to effect any removal that the Railway should desire.

For the foregoing reasons, this claim is hereby denied.


text:
    (No. 5779
    George West, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 22, 1976.

    John R. Snively, Attorney for Claimant.

      William J. Scott, Attorney General; Edward L. S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, George West, has brought this action to recover for personal injuries sustained by him on March 18, 1968, when his left hand was caught in a punch press in the metal shop of the Illinois State Penitentiary at Joliet, Illinois.

In Count One of his complaint, Claimant alleges that Respondent was negligent in failing to use reasonable care in maintaining the punch press, in failing to provide Claimant a reasonably safe place to work, and in failing to adequately instruct Claimant in the operation of the machine. In Count Two Claimant alleges that Respondent violated a statutory duty in failing to comply with certain Provisions of the Health and Safety Act of the State of Illinois, in that Respondent permitted the punch press to operate without safety devices required by the Act.

Claimant was incarcerated in the Joliet correctional facility in 1964. Sometime in 1965 he requested a paying job and was assigned to the metal shop. Shortly thereafter he was assigned to operate the punch press in the shop and had been operating the press daily for about three years prior to the date of the accident.

The punch press was a device for stamping metal into required shapes. It was operated by means of a foot lever which, in theory, had to be depressed before the punch would descend.

Claimant said that from the time he first started working on the press, he observed that the press would occasionally "double clutch” — that is, it would descend without the foot lever being depressed. He estimated that the press double clutched "maybe every hundred times,” although he could not anticipate when it would do so. Claimant stated that he reported the defect to the shop foreman who was a prison guard but that Respondent made no attempt to repair the machine. Claimant attempted to fix the press himself but was not able to do so.

On the day of the accident Claimant was punching metal into garbage can lids using a rubber based die. He said that occasionally when the press would descend bits of metal would stick to the rubber die, and it was necessary for him to remove the metal pieces before the press descended again, or the press would not make the proper imprint. He was in the process of removing metal bits from the rubber die with his left hand when the press "double clutched,” descending on the fingers of Claimant’s left hand.

The second and third fingers of Claimant’s left hand were smashed, and the first phalanx of the first finger and little finger were also injured. The first and part of the second phalanx of Claimant’s second finger and almost all of his third finger were amputated. Claimant said that he did not have any feeling in his index finger, and that he underwent additional corrective surgery on the second and third fingers to round off the bones and to insert additional padding under the skin.

Claimant had been an interior decorator prior to his incarceration. Upon his release from prison he resumed his former occupation, and testified that he was hampered in his work by the loss of use of part of his left hand.

Claimant introduced into evidence the Health and Safety Act of Illinois and the Health and Safety Rules A through J as promulgated by the Industrial Commission of Illinois. Those provisions provide, in substance, that a punch press such as the one on which Claimant was injured must be equipped with specified safety devices designed to insure that an operator’s hands do not come within the striking zone of the press.

To recover on his common law cause of action Claimant bears the burden of proving, by a preponderance of the evidence, that Respondent was negligent in maintaining the punch press; that he was free of contributory negligence; and that Respondent’s negligence was a proximate cause of his injury.

The record does tend to establish that Respondent permitted the punch press to operate without appropriate safety devices. It is also apparent that Claimant had provided Respondent with actual notice of the tendency of the punch press to periodically malfunction, but that Respondent took no steps to repair the press. From these facts, we conclude that Respondent did not use reasonable care in maintaining the punch press.

We also think that Claimant has sustained his burden of proving his freedom from contributory negligence. Respondent argues that Claimant knew that the punch press had a tendency to malfunction, and that he should have refused to work on the defective machine. However, Claimant, as a prisoner, was not a "free agent.” He would have been subject to disciplinary action had he refused to perform his work. A worker in private industry would be able to assert a grievance and refuse to work on an unsafe machine. An inmate, working under orders to perform an assigned task, cannot be bound by the doctrine of assumption of risk on the same terms as a worker in private industry. The record is uncontradicted that from time to time pieces of metal stuck to the rubber die, and that if Claimant had not picked them off succeeding imprints would have been faulty. Claimant’s testimony established that he was operating the machine in a reasonable manner, and we conclude that he was free of contributory negligence.

We further find that Respondent’s negligence was a proximate cause of Claimant’s injury.

Claimant is hereby awarded the sum of Twelve Thousand Dollars ($12,000).


text:
    (No. 5800
    Lymann Halley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 3, 1967.

    Ross Armbruster, Attorney for Claimant,.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Burks, J.

The complaint seeks damages for personal injuries alleged to have been sustained when Claimant allegedly slipped on a bar of soap while a patient at Alton State Hospital. The soap, Claimant contends, was negligently left on the floor by an attendant in the restroom on January 12, 1969.

The Claimant, who had been treated at Alton State Hospital on prior occasions, was admitted again on January 10, 1969, suffering from alcoholic withdrawal, shaking, and admitting under cross-examination, that he had been hospitalized five times for alcoholism and had been an alcoholic for 14 years. Prior to this confinement he had been in a fight in a laundromat owned by his brother in East St. Louis. In the fight he sustained some broken ribs and some stitches taken in his head. He continued to drink until the 4th or 5th of January when he was picked up by the Cahokia police for walking in the road. Although he insists that he was not drunk at this time, he does state that he was sick, weak and wobbly. He was in the City Jail at Cahokia for two or three days, then spent one or two days in the County Jail. From there he was taken to Alton State Hospital, still feeling sick and shaky. On the day he was admitted, January 10, 1969, he was assigned to Birch Cottage. Claimant testified that he was able to sleep a little bit more at Alton State Hospital than he had been able to do in jail. He denied any blackouts on the 11th or 12th of January. Claimant testified that on January 12, 1969, although he slept pretty good during the night, he felt bad when he got up, being sick to his stomach and had what seemed like a hangover, but not an alcoholic hangover, a fact he did not explain.

Claimant awoke on the morning of January 12, 1969, at about 7:00 with a headache and upset stomach. Claimant testified that he had not eaten for three days and that he refused breakfast on that morning. He requested medication which was denied. Claimant then sat in a chair in the dayroom while the other patients of Birch Cottage had breakfast. Both psychiatric aides, Suzanne Mitchem Schaefer and Joan Hazzard, recall refusing Claimant medication and both testified that Mr. Halley fell asleep while seated in the dayroom during breakfast.

Claimant, sometime during breakfast, went to the washroom "walking carefully” because he was having "a little difficulty walking.” While in the restroom he fell, hitting his head on the handle of the toilet. Claimant testified that at first he didn’t know how or why he slipped and fell, but the next day when he was admitted to the Medical-Surgical Hospital, he discovered a small slice of soap on the sole of his shoe. He further testified that at the time he fell, the tile floor of the restroom appeared to be wet in spots as if it had been mopped. Mr. Halley testified that he showed the soap to Mrs. Barbara Phelps at the Medical-Surgical building, but she does not recall Mr. Halley showing her the soap.

The psychiatric aides, Suzanne Schaefer and Joanne Hazzard, checked the bathroom floor and did not notice whether it was wet. Nurse Stevenson indicated that it might have been. As for the existence of a banana peel or pieces of soap on the floor, all three witnesses denied that condition.

According to the three aides, the bathrooms were mopped three times a day and the first time was not until after breakfast. After mopping, the door would be locked until the floor was dry.

The medication which Claimant received was prescribed by Dr. Rosita Sumagang who prescribed: Librium, 25mg. three times a day at 8:00 a.m., 1:00 p.m., and 6:00 p.m.; Glibrum, lOOmg. PRN (as needed); Chloral Hydrate, 500mg. at night, plus aspirin and vitamins. Librium is prescribed for patients who are agitated, particularly if having delirium tremens. Chloral Hydrate, unlike Librium, is a sedative for which the hypnotic dosage is between 500mg. to 2000mg., depending on the patient. The record is clear that the Claimant was blind in the left eye after his fall on January 12, 1969.

We find that the Claimant has not shown by a preponderance of the evidence that the Respondent was negligent in its treatment of him nor in its maintenance of the ward.

It is fundamental that the Respondent is not an insurer of the safety of persons residing at the various State Hospitals under its jurisdiction. Rather, the Respondent is to be held to that degree of care which a reasonably prudent individual or organization would exercise under the same and similar circumstances. Lindberg v. State of Illinois, 22 Ill.Ct.Cl. 29; Ward v. State, 24 Ill.Ct.Cl. 142.

In Lindberg the Claimant slipped and fell on a lavatory floor which was moist, wet and slippery. Lindberg at 30. The court found that the Claimant was an "invitee” at the State Park and lacking a showing that Respondent knew or in the exercise of a reasonable care should have known that the floor was slippery at the time of the accident, the State could not be found negligent. Lindberg at 38.

The facts in the instant case correlate with Lindberg in that the record is devoid of any showing of notice, actual or constructive, as to a dangerous condition of the lavatory floor. Furthermore, the testimony of the psychiatric aides and nurses shows the opposite to be true. The bathrooms were not mopped until 8:30 a.m., both after breakfast and after Claimant’s fall. If Claimant did fall on a piece of soap the size of a quarter, as he maintains, then there still is no showing that the Respondent knew or in the exercise of reasonable care should have known of the condition, for the soap could have been dropped there by any one of the numerous patients in Birch Cottage. Of course, the above assume that Claimant fell as a result of the soap on his shoe found the following day by Claimant. This, even if viewed most favorably for Claimant, hardly is more than supposition and insufficient to meet Claimant’s burden of proof.

We also find that the Claimant failed to exercise due care for his own safety. Claimant freely admits that he was feeling ill, had not eaten for three days, and was under sedative medication. He states that he walked carefully because he was having trouble walking. In Lindberg the Claimant stated that she was walking carefully because the floor was wet. In Lindberg the court found that Claimant assumed the risk when she walked on a wet floor she knew to be such. Here, Mr. Halley not only says that he knew that the floor was wet, but that he was also having difficulty walking. Whether his difficulty was due to his condition of alcoholic withdrawal or lack of food and sleep, or the medication he was receiving, or a combination of the above is unclear. However, the Claimant assumed all normal, obvious or ordinary risks attendant on the use of the premises. To walk as Claimant contends on a freshly mopped lavatory floor, when mere walking was difficult, is not a sufficient showing of an exercise of due care for one’s own safety.

Claimant has not shown why he could not have asked for assistance from one of the psychiatric aides on the ward or that his mental condition was such as to make him oblivious to the attendant dangers of walking on a freshly mopped floor.

The duty of an institution to protect its patients has been stated and the degree of care required has been amplified in Slater v. Missionary Sisters of Sacred Heart, 20 Ill.App.3d 464, 469:

Although a hospital is not an insurer of a patient’s safety, it owes him a duty of protection and it must exercise the degree of reasonable care toward him as his known condition may require .. . Foreseeability of harm is an essential element to actionable negligence against a hospital for breach of duty of care to a patient. . ..

We agree that the hospital is under a duty to give reasonable care to the patient; that "reasonable” is to be determined by the foreseeability present; and that the duty of care required by the hospital towards a patient that is more likely to be injured is greater than the duty of care a hospital owes to another patient who is less likely to hurt himself or be hurt.

The Claimant alleges that the reason he fell was that the floor of the bathroom had been freshly mopped and soap had been left on the floor. The Claimant slipped and fell at the time the other patients were eating breakfast. All the testimony of the medical technicians and nurses aides agreed that the usual practice of the hospital was to mop the floors of the bathrooms after breakfast. The door to the bathroom that was mopped would be locked until the floor was dry. All the witnesses agreed that sometimes it was necessary to mop the floors at other than scheduled times, but none mentioned that the policy of locking the doors after mopping would at any time be abandoned.

The Claimant was being treated for alcoholism, had been medicated, and had not eaten for several days. It was obvious from the amount of notations that were recorded about the Claimant as a patient that he was closely watched. The amount of time that elapsed between the point Joanne Hazzard, a mental health technician, left the Claimant asleep in a chair, and the time she saw him on the bathroom floor was about 10 minutes. During this period the Claimant, knowing that he was unsteady on his feet, walked past the nurses’ station without notifying anyone, and fell in the bathroom.

To impose liability upon the Respondent under the facts in this case would be holding that anything less than a full-time bodyguard would constitute negligence on the part of the Respondent. Such is not the law.

This claim is denied.


author: Polos, C. J.

text:
    (No. 5845
    Ronald Edward Coffey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 21, 1977.

    Charles Boyle, Attorney for Claimant.
    William J. Scott, Attorney General; James O. Stolla, Assistant Attorney General, for Respondent.
   Polos, C. J.

This is an action pursuant to the provisions of Ch. 37, Section 8(c) of the Court of Claims Act, Ill.Rev.Stat., Ch. 37, §439.8(c), which grants this Court jurisdiction over:

All claims against the State for time unjustly served in prisons of this State where the persons imprisoned shall receive a pardon from the Governor stating that such pardon is issued on the ground of innocence of the crime for which they were imprisoned.

From the stipulation of facts entered into between the parties, it appears that Claimant was arrested on March 3, 1968, and subsequently indicted for the murder of one Fredrick H. Haye. Claimant was held without bond in the Cook County Jail from March 3, 1968, to March 27, 1969, when he was released without having been tried for the crime.

On December 19, 1975, Claimant received a pardon on the ground of innocence from the Honorable Dan Walker, then Governor of Illinois.

Respondent contends that this claim must be denied on several grounds: that Claimant was never imprisoned in a "prison of this State,” that a prerequisite to recovery for unjust imprisonment is that one be convicted of a crime, and that incarceration while awaiting trial is not "unjust imprisonment” within the meaning of the statute.

Claimant in turn asserts that Section 8(c) of the Court of Claims Act is intended to compensate one incarcerated prior to a trial, and that the Cook County Jail is a "prison” of this State within the meaning of the statute.

Thus, the issue for consideration is whether a Claimant may recover for time served in a county jail awaiting trial where he is not subsequently convicted of an offense. Put another way, does Claimant’s incarceration without bond prior to trial on a charge of murder constitute "time unjustly served in prisons of this State” where Claimant was never subsequently convicted of an offense and was released from the County Jail without trial?

We believe, and so hold, that jurisdiction lies under Section 8(c) of the Court of Claims Act only where a Claimant has first been convicted of an offense, and then unjustly imprisoned in a prison of the State of Illinois. Our conclusion is based in part upon a consideration of Article V, Section 12 of the Constitution of the State of Illinois, which provides:

The Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper. The manner of applying therefore may be regulated by law (Emphasis added).

Thus, the Governor’s power to pardon for an offense is expressly conditioned upon there having been a conviction for that offense, and the jurisdiction of this Court to entertain a claim for unjust imprisonment is expressly conditioned upon a Claimant first having received a pardon. It, therefore, appears self-evident that we cannot entertain a claim for unjust imprisonment unless there has first been a conviction, and then a pardon issued in accordance with the Article V, Section 12 of the Constitution, which conditions the Governor’s power to pardon upon the existence of a conviction.

The Court also notes that there was in effect at the time of Claimant’s incarceration a statute commonly known as the "Four-term Act,” Ill.Rev.Stat., Ch. 38, 103-5, which provides that one in custody must be tried within 120 days of his incarceration "unless delay is occasioned by the defendant.”

Claimant testified during the course of the hearing herein that his case was continued by him at least twice. It, therefore, appears that Claimant’s own actions, in continuing his trial on two occasions, caused his incarceration for a period in excess of 120 days.

Were this Court to permit a recovery in this case, it would open the door to thousands of claims by individuals who were incarcerated in local jails prior to trial and then released either without trial or after trial. Such a result would place an intolerable obligation upon the taxpayers of this State, and we are certain, in view of the provisions of Article V, Section 12 of the Constitution of 1970, and Section 8(c) of the Court of Claims Act, that such a result was never intended by the legislature.

For the foregoing reasons, this claim must be, and hereby is, denied.


text:
    (No. 5882
    Virginia E. Rinehart, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 2, 1977.

    Leon G. Scroggins, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant, Virginia E. Rinehart, filed suit on behalf of herself and as guardian for children born to her and her deceased husband, Ben Jonas Rinehart.

Ben Jonas Rinehart died on December 6, 1969, while a patient at Alton State Hospital at Alton, Illinois. He had been a patient there on at least 13 other occasions and had entered the last time as a voluntary patient some time before Thanksgiving in 1969.

He worked, when he was able to do so, selling Family Record Plans and American Albums.

He was first hospitalized in 1959. On December 5, 1969, the deceased became very restless, pushing patients’ beds around the hospital and causing considerable disturbance. There were approximately 32 beds in the dormitory.

He finally became so objectionable that he was restrained. He was placed in his bed and his hands tied with cloth to the bedposts. There is conflicting testimony as to whether or not his legs were also tied and it appears from the record that they were. He was still very noisy causing considerable commotion. The aides then called a doctor who was on duty relative to giving him a sedative.

The record indicates that at approximately 2:00 a.m. he was given an injection of Amytal. He had been given the same sedative the night before. After the sedative was administered, he became subdued.

The record further indicates that he was quiet until he was observed at about 5:30 a.m. breathing very heavily, and he died at approximately 7:00 a.m.

An autopsy was performed and an analysis made of his brain by Dr. Frank F. Fiorese of Elmhurst, Illinois. He was the Chief Toxicologist for the State of Illinois.

From his examination of the brain, the doctor testified that he found 3.47 milligrams of Seconal per one hundred grams of brain, which is 3.47 times a lethal dose, and by calculation established that the body had 2.08 grams of Seconal in the system.

When asked approximately how much of the inject-able form would be necessary to reach the quantity of 2.08 grams, the doctor replied, "If I recall well, an injectable Seconal consists of two hundred fifty milligrams; so in order to reach that concentration in the body, about two grams, I feel at least eight vials of Seconal containing two hundred fifty milligrams each.” When asked how many tablets would have had to be taken, he replied, "Let’s assume that we are dealing with one hundred milligram tablets. To reach two grams, about two grams, we would need about twenty tablets, twenty-one tablets.”

Dr. Ricardo Heath, who testified at the coroner’s inquest, stated that he treated Mr. Rinehart the night he died. He stated that he prescribed 7-1/2 grains of Amytal at about 2:00 a.m. the morning of December 6. When asked if he had ever prescribed Seconal for Mr. Rinehart, the doctor replied, "No, I have never prescribed Seconal for any patient or Mr. Rinehart.” He further stated that the Amytal came in ampules which contained powder, and this is put in a solution with distilled water and injected, and stated that the Seconal came in capsules which was not injectable.

The nurse on duty and the nurse’s aide are both emphatic in their testimony as to the sedative that was given which, according to their statements, was Amytal.

It appears that all of the drugs are locked in a cabinet and a key has to be obtained when any of them are to be removed for purposes of administering them to a patient. The testimony of both the nurse and the aide was to the effect that they took the Amytal out, broke the capsule it was in, mixed it with water, and then injected it into the patient. The record is devoid of any other sedative being given to the deceased.

We, therefore, have a situation where the deceased, according to testimony given by the attendants, was bound by his hands and legs from approximately 1:00 a.m. to the time of his death so he would have been unable to administer any drugs to himself, either orally or by injection.

According to the toxicologist, the Seconal would have had to have been taken by the deceased three or four hours before his death, and it is clear from the evidence that he was unable to do this himself.

It was also established from the evidence that any drugs patients may have when they come into the institution are taken from them and given to the pharmacist.

The question of how the lethal dose of Seconal got into the system of the deceased remains one of pure conjecture as there is no evidence of any kind or character of Seconal being administered to the deceased. The record discloses only one injection of Amytal.

The toxicologist did not find any Amytal in the body of the deceased, but he stated this was not unusual because it has the propensity to absolve and disappear rather rapidly so it could not be determined from his examination whether Amytal had been received by the deceased.

There exists several possibilities as to where the lethal dose of Seconal came from:

1. The dose which was suppposed to have been Amytal could have been Seconal through a mistake in packing or on the part of those administering it;

2. Seconal given by another inmate — which seems rather far-fetched; or

3. The deceased administered the drug to himself which seems highly improbable, if not impossible, unless it was administered before 1:00 a.m., the time when he was subdued, because after that time he was physically unable to give himself the drug.

Claimant’s theory is that of res ipsa loquitur, or, the facts speak for themselves. According to Claimant’s theory, someone on behalf of Respondent made an error that resulted in the death of the deceased. Circumstantial evidence is being relied upon by Claimant as there is no direct evidence to sustain her position.

The fact that the drug, according to the toxicologist, must have been administered after the patient was subdued strengthens Claimant’s position that an error was made when Seconal was mistakenly administered to the deceased instead of Amytal, or that someone somehow administered Seconal to the deceased. In any event, the deceased did die of a tremendous amount of Seconal.

The attendants in the hospital testified at considerable length to the care that is used in storing and handling drugs and stated that at all times these drugs are kept under lock and key and, before being used, a direct order by the doctor in charge has to be made to the nurse who then secures a key from a third party, removes the desired drug, mixes it, and administers the same. There is a constant check and a running inventory made of the drugs used by this department.

Testimony was that all Seconal in the cabinet were accounted for and none were missing, which adds further mystery to the question as to where the drug actually came from.

The Supreme Court of Illinois in Edgar County Bank and Trust Company vs. Paris Hospital, Inc., 57 Ill.2d 298, 312 N.E.2d 259, stated: "Much has been written in recent years on the question of the applicability of the doctrine of res ipsa loquitur to medical malpractice and hospital negligence cases.” Our examination of these articles, and the authorities collected in the annotations, leads us to conclude that much of the difficulty encountered in the cases arise from the failure to recognize that the application of the doctrine of res ipsa loquitur does not affect the necessity or manner of proof or proximate cause, and that it is relevant only to the nature of the proof from which the trier of fact may draw an inference of negligence. In Metz vs. Central Illinois Electric and Gas Company, 32 Ill.2d 446, 207 N.E.2d 305, the Court stated:

When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. This in essence is the doctrine of res ipsa loquitur, and its purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.

No reason appears why, given the appropriate state of facts, the doctrine is not applicable to an action involving medical malpractice and hospital negligence.

The testimony in this case indicates that the decedent, Ben Rinehart, was under complete control of the Respondent. The testimony also indicates that on the morning of his death he was completely restrained by the hands and feet and could not have taken any pills by himself or injected any substance into his body. The incident would not have occurred without some form of negligence on the part of Respondent and, finally, the Respondent made no attempt to explain how the lethal dosage of Seconal got into the system of the deceased.

The record is clear that for several years the earnings of the decedent were very limited and that the family lived on Public Aid and outside income other than that furnished by the deceased. The facts would indicate that his earning power would decrease rather than increase in the future and that any contributions he might have made to the family would have been minimal. It is also apparent that he had been admitted to the hospital thirteen times in the past and, in growing older, his chances for improvement were very small.

An award is hereby granted to Claimant in the amount of Seven Thousand Five Hundred Dollars ($7,500.00).


text:
    (No. 5884
    Irma G. Youngman, Claimant, vs. State of Illinois, Illinois National Guard, and Wilfred D. Schumm, Respondent.

      Opinion filed May 31, 1977.

    William D. Hanagan, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

The claim for damages in this matter was filed by Claimant as a result of an automobile accident which occurred on May 12, 1970. The accident in question took place in the City of Mt. Vernon, near 830 Broadway Street.

Claimant’s vehicle and Respondent’s vehicle were eastbound in two lanes of eastbound traffic. Respondent’s vehicle had overtaken Claimant’s vehicle immediately after they had both passed through an intersection at which the traffic was controlled by a traffic light. Claimant’s vehicle started up from a stopped position and after crossing the intersection, collided with the right side of Respondent’s vehicle which was attempting to change from the left lane to the right lane.

The left front fender of the Claimant’s vehicle and the right side of the Respondent’s vehicle were involved in the accident. Following the initial impact, Claimant’s vehicle collided with the side of a car parked along the right side of the street. At the time of the impact, Claimant alleged she was traveling at approximately 10 to 12 miles per hour, and it appears the Respondent was traveling somewhat faster.

Claimant alleges that she sustained injuries in and about muscles and ligaments in her dorsal and lumbar spine, and that such injuries caused an aggravation of a pre-existing condition.

When the accident happened Respondent’s vehicle, a National Guard truck, was returning from Southern Illinois University campus at Carbondale, Illinois, where it had been sent on a State mission to help maintain law and order.

Claimant was treated by local physicians until March 10, 1972, when she went to seen an orthopedic surgeon, Dr. Lee T. Ford, in St. Louis, Missouri. The initial examination showed that she had one-third limitation of the ability to move her back forwards, backwards, and to either side. A mylegram was done on August 12, 1970, and showed a bulge on the lateral on the L4-5 level, a slight root sleeve asymmetry of the first sacral nerve root, and a small defect in the oblique right at the L4-5 level.

Dr. Ford diagnosed a herniated lumbar disc and back sprain. A laminectomy was performed on July 26, 1972, resulting in the removal of bulging disc at the L4-5 level.

The medical specials are as follows:

Wabash General Hospital, Mt. Carmel, Ill.
5/29/70 to 6/6/70 and .........................i....... $393.35
8/10/70 to 8/12/70 .................................... 120.00
Dr. Ernest Lowenstein, Mt. Carmel, Ill.
5/26/70 to 10/31/70 .................................. 220.00
Dr. R. L. Fuller, Mt. Carmel, Ill.
5/19/70 ............................................. 7.00
Dr. James M. Franco, Evansville, Ind.
9/11/70 ............................................. 25.00
Schultz’s Evansville, Ind.
6/15/70 Lumbo Sacral support ....................... 13.26
Second support - no receipt ........................... 13.26
Hadley Pharmacy, Mt. Carmel, Ill.
Drugs, 5/12/70 to 11/70 .............................. 85.30
Dr. Don Pruitt, Mt. Carmel, Ill.
9/11/70 ............................................. 93.00
$970.17

Supplemental Medical specials:

Barnes Hospital 3/11/72 to 3/18/72 .................... $942.00
Barnes Hospital 7/26/72 to 8/5/72 .................... 1,495.15
Dr. Lee Ford, St. Louis, Mo........................... 738.00
Dr. Ronald Evans, St. Louis, Mo....................... 48.00
$3,223.15

Before recovery can be made by Claimant, she must prove she was in the exercise of due care and caution for her own safety, and that the State was negligent and that such negligence was the proximate cause of the accident.

It is clear from the record in this case that the Claimant was in the exercise of due care, and that she in no way contributed to the accident. It is also apparent that the State was negligent, and that the negligence of the State was the proximate cause of the accident. Claimant was in a proper position in her lane, and the swerving of the truck of Respondent was the cause of the accident.

It appears that as the result of the accident and the surgical procedures following said accident, Claimant has suffered permanent injury to her back.

It further appears that prior to this accident, Claimant was earning approximately $54.00 per week; but since her accident, due to her physical condition she is no longer able to work.

An award is hereby made to Claimant in the amount of $3,223.15 for medical expenses, $5,000.00 for loss of earnings, and $3,000.00 for pain and suffering, or a total award of Eleven Thousand Two Hundred Twenty-Three And 15/100 Dollars ($11,223.15).