text:
    (No. 75-CC-1102
    Sharon A. Smith, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 25, 1984.

    Terrence E. Leonard, for Claimant.
    Neil F. Hartigan, Attorney General (Saul R. Wexler, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is an action for personal injuries sustained by Claimant as a result of an automobile accident which occurred on June 16,1973, at First Avenue approximately 150 feet south of Parkview Road, Riverside, Illinois.

The undisputed facts were that Claimant was operating a vehicle southbound on First Avenue and was struck by a northbound vehicle driven by Eleanor Jones who crossed the center line of First Avenue and entered into the southbound lanes of First Avenue, striking Claimant’s vehicle. Claimant filed suit against Eleanor Jones and others and recovered insurance policy limits of $10,000.00..

The issues in this case are (a) whether the State had notice of any dangerous condition of the roadway, (b) whether the State was negligent in its maintenance of the roadway, and (c) whether such negligence was the proximate cause of the Claimant’s injuries.

Claimant testified that on the date in question at about 10:48 p.m. she was travelling in a southerly direction on First Avenue approaching a viaduct. The weather was rainy. She noticed an accumulation of water on the pavement in the vicinity of the viaduct. As Claimant proceeded toward the viaduct, the vehicle operated by Eleanor Jones came northbound through the underpass, hit water causing a large splash, changed lanes and fishtailed over the center line and struck Claimant’s vehicle. Claimant’s vehicle at all times was in the southbound lane of First Avenue.

Claimant testified further that whenever it rains, water accumulates under the viaduct.

John McCarthy and his son, Brian McCarthy, testified as post-occurrence witnesses that there was an

accumulation of water under the viaduct after heavy rains for years.

Claimant’s husband also testified that for about eight years there had been water accumulations at that location every time there was a steady rain.

The investigating police officer of the Riverside Police Department, Joseph Kastner, testified that it was raining hard at the time of the accident but that he did not recall looking under the viaduct. Officer Robert Johnson recalled water covering at least the curb lanes of traffic for both north and southbound traffic on First Avenue at the underpass of the viaduct. Roth officers agreed that after heavy rains there were accumulations of water under the viaduct, sometimes to the point where traffic would have to be rerouted. Sometimes police had been obliged to assist vehicles that had been stalled there because of the water.

Eleanor Jones, the driver of the other vehicle, testified, as a hostile witness, that there was standing water on the highway immediately prior to the accident and that on occasions prior to the accident the road had a lot of potholes. She denied any further recollection of the incident but did not deny that she had previously testified at a deposition in the lawsuit brought by Claimant against her that as she passed the viaduct there was a puddle of water that covered a hole where her right front wheel entered causing her to weave from the right hand lane and causing her car to go out of control. She had not seen the hole because of the water and a visit by her to the scene after the accident revealed a hole large enough for her right tire to go into. Her previous testimony was somewhat impeached by her prior statement to the investigating officers that water splashing on her windshield caused her to lose control of her vehicle.

As to the issue of notice of a dangerous condition, it is clear that the State had constructive notice of a flooding condition under that viaduct, a condition which had been recurring with regularity after heavy rains for many years. Thus, we find that the State had constructive notice of a dangerous condition for a long enough period to remedy the same or to warn the public of the condition.

On the question of whether the State was negligent, it is clear to this Court that allowing a flooding condition to continue to exist, without remedy or warning to the public, constitutes a failure to properly maintain the highway which is a breach of Respondent’s duty and is negligence.

The question of whether that negligence was the proximate cause of the injuries to Claimant is more vexing.

Respondent claims that it is mere speculation that water caused or contributed to Jones losing control of her car, citing the fact that neither the investigating officer nor the condition witnesses were able to state whether there was a significant water accumulation on the evening in question. However, in view of Claimant’s testimony that the Jones car veered after a splash and in view of Jones’ previous testimony to the same effect, and no contrary testimony brought by Respondent, we find as fact that the accumulation of water caused the Jones vehicle to strike Claimant’s vehicle.

Respondent argues that the sole or intervening proximate cause of the accident was Jones’ negligence in entering an area where she knew potholes existed, citing Dellorto v. State (1979), 32 Ill. Ct. Cl. 435, and Storen v. City of Chicago (1940), 373 Ill. 530, 27 N.E.2d 53, as authority for the proposition that the Respondent is not liable for merely creating a condition which makes an injury possible.

The Dellorto, supra, case is not applicable because that case concerned a rut in the shoulder of the road. A driver hit this rut, lost control of his car and killed the claimant. In view of the fact that the driver had to leave the road in order to strike the rut, it was clear to the Court that the driver and not the condition of the roadway was the sole proximate cause of the accident.

In the case at bar, there is no evidence in the record of any intervening negligence on the part of Jones. Thus, in the instant case, it was the dangerous condition itself which was the sole proximate cause of the accident and resultant injuries to Claimant.

Since the evidence showed Claimant was not guilty of any negligence at all, any questions of whether contributory or comparative negligence is applicable to this case are moot.

As a result of the accident Claimant was hospitalized at Foster McGaw Hospital for 55 days with multiple injuries including a fracture of the right olecranon; fracture of the right fibula; central dislocation of the left hip; fracture of the pubic rami; and multiple facial lacerations. She underwent the surgical procedures of open reductions of the right hip with insertion of rod, wire and dowel pin in the hip; open reduction of the right elbow and a wiring together of bone fragments. Her doctor and hospital bills amounted to $6,934.00.

She had been employed part-time at $75.00 per week and lost eight months from work, for a total lost earnings of $2,600.00.

As a result of her injuries, Claimant will permanently lack 30 degrees full extension of the elbow and 20 degrees full flexion of the elbow. There is a strong possibility of traumatic arthritis of the left hip in the future. Her surgical scars are permanent. At present, on occasion, she walks with a limp.

We find Claimant’s damages to be $50,000.00. Setting off $10,000.00 already received from Eleanor Jones, her net is $40,000.00. For the reasons set forth hereinabove, it is hereby ordered that the Claimant be, and hereby is, awarded the sum of $40,000.00 in full and final satisfaction of this cause of action.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 76-CC-1400
    Joyce Edwards, Individually and as Administratrix of the Estate of Chester Edwards, Deceased, and Evelyn Edwards, David Edwards and John Edwards, minors, by their mother and next friend, Joyce Edwards, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 11, 1984.

      Order on denial of rehearing filed April 3,1984.

    Bradley, Bradley & Nederman, for Claimants.
    NeilF. Hartigan, Attorney General (James A. Koch, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim brought by Joyce Edwards against the State of Illinois for damages resulting from an automobile accident which occurred on July 11, 1974, at 8:55 p.m., which resulted in the death of her husband, Clarence Edwards. The accident occurred on Illinois Route 132, approximately three-tenths of a mile east of Deep Lake Road in Lake Villa Township, Lake County, Illinois. The vehicle that Claimant’s decedent was operating left the paved portion of the highway onto a gravel shoulder, subsequently re-entered the highway, and collided with a vehicle traveling in the opposite direction.

It is Claimant’s contention that her husband’s death was caused by the State’s negligence in designing and maintaining the highway area in question. Specifically, Claimant contends the State was negligent in allowing the existence of a three- to four-inch drop-off between the paved roadway and the gravel shoulder which allegedly caused Edwards to lose control of his vehicle. The State was also negligent, it is contended, by failing to post a speed limit lower than 55 miles per hour, by failing to post “no passing” signs, by failing to maintain adequate lane width, and by failing to provide adequate street lighting. Claimant seeks damages in the amount of $100,000 for funeral and burial expenses, as well as loss of support for herself and her three minor children.

Both parties in this case have devoted considerable time to the question of whether or not there did in fact exist a drop-off as claimed at the point where the Edwards vehicle first left the roadway, and if so, whether it gives rise to negligence by the State. It is Claimant’s contention that the drop-off was considerable and this caused the decedent to lose control of his vehicle, resulting in his death.

The evidence discloses the decedent had met his brother-in-law, Scott York, at a riding and boarding stable located immediately south of Route 132, a highway which runs in an east-west direction, at and near the accident site. Edwards as the driver, with York as his passenger, left the stables in Edwards’ vehicle and entered Route 132 via the stable entrance near the top of a hill located approximately three-tenths of a mile west of a newly paved section of highway. The Edwards vehicle proceeded east down the hill and onto the newly paved section where the drop-off allegedly existed. Immediately east of the newly paved section, there is another hill. At some point during this short trip, Edwards left the roadway, lost control of his car, and had the fatal collision.

The accident was witnessed by two individuals, Scott York, the passenger in the decedent’s vehicle, and George Davison, the driver of the other vehicle involved in the collision. It is their testimony that is crucial to the resolution of this case. Their versions of the accident differ substantially as to the location where Edwards first lost control as well as the manner by which he did so.

Scott York testified that the vehicle in which he was a passenger and which was operated by Mr. Edwards was proceeding down the hill west of the newly paved portion of the highway. He testified there were about six. vehicles proceeding from the other direction, and suddenly one of these cars began passing and was therefore in Edwards’ lane of travel. At the shoulder of the road located at the bottom of the hill where the newly paved portion, and alleged four-inch drop-off began, Edwards pulled onto the shoulder to avoid a head-on collision with the passing vehicle. York further testified that Edwards’ car immediately began jerking back and forth, went into a slide, re-entered the roadway, and the accident occurred. His testimony was from the time the car first left the road and until the collision, Edwards was “fighting the wheel.” York concluded that it was the drop-off that caused Edwards to lose control of his car.

On cross-examination, York was confronted with his testimony given at his deposition during which he testified the Edwards car was going down the hill, that a black car was coming towards them in the opposite direction, and at this point he closed his eyes and put his head down. He stated he remembered nothing after that. He admitted there was no drop-off or other defect on the hill and that the Edwards car could have left the roadway on the hill and not on the newly paved portion of the highway at the bottom of the hill. He further stated that the Edwards car could have left the roadway more than one time prior to the collision.

George Davison testified he was traveling westbound on Route 132 at the time of the accident. He was proceeding rather slowly in his pickup truck since he was carrying a large load of shingles. He was followed by several vehicles before he reached the top of the hill lying east of the newly paved portion of highway and that a vehicle did pass him at a high rate of speed and proceeded west down the hill. When Davison reached the top of the east hill, he observed the Edwards vehicle travel across the top of the west hill at a high rate of speed. At this point, there was no traffic between the Edwards and Davis vehicles. The car that had earlier passed Davison was now out of sight and therefore beyond the Edwards vehicle.

Davison testified the Edwards car first left the roadway at a point on the west hill and substantially away from the newly paved area, the point where York stated the car entered the shoulder and its drop-off. Davison further testified the Edwards car was traveling down the hill at a high rate of speed, moving erratically and swerving on and off the road. After it re-entered the highway for the third time, it collided with the Davison vehicle head-on in Davison’s lane of travel.

At the point of impact, Davison had slowed his vehicle considerably and moved far to his right because, according to Davison, he was concerned that Edwards was driving on and off the road, making no apparent effort to slow his vehicle down. He further testified there was 1800 feet from the top of the west hill where Davison first observed Edwards drive off the roadway to the point of impact, which did in fact occur on the newly paved portion of the highway lying between the two hills.

It appears, therefore, that the accident was caused by the negligence of Edwards himself. It further appears from the testimony of Davison that Edwards did not leave the road, at least initially, at the drop-off point as claimed by York, whose testimony on this point was substantially impeached by his own words.

In light of Davison’s testimony regarding the high speeds and erratic movement of the Edwards car for some 1800 feet, it is clear that the drop-off was not the cause of the collision but instead this accident was caused by Edwards’ own negligence. The driver of a vehicle that leaves the roadway and enters a lower shoulder is under a duty to take certain steps to safely remove himself from the situation. Edwards clearly did not take reasonable steps to correct the problem in which he found himself. The State cannot be held responsible under these circumstances based upon the evidence produced at the trial. See Sommer v. State (1952), 21 Ill. Ct. Cl. 259; Lee v. State (1964), 25 Ill. Ct. Cl. 29; Alsup v. State (1976), 31 Ill. Ct. Cl. 315; Hill v. State (1978), 32 Ill. Ct. Cl. 482.

This Court has repeatedly held that the State is not an insurer of all persons traveling upon its highways. See Bloom v. State (1957), 22 Ill. Ct. Cl. 582.

The Court has also laid down the rule that Claimant must prove by a preponderance of the evidence that the State breached its duty of reasonable care and that the negligence flowing from the breach proximately caused Claimant’s injury. See Brockman v. State (1975), 31 Ill. Ct. Cl. 53; Laine v. State (1977), 32 Ill. Ct. Cl. 10.

There is further evidence in the record that the drop-off was comparatively minor. Within five to seven days after the accident, Davison was released from the hospital and returned to the scene of the accident. He measured the distance between the point of impact and the spot where the car driven by Edwards first left the roadway. It was nearly 1800 feet. He testified that there was no drop-off between the roadway and the shoulder at and near the point of impact and along the new asphalt patch. He stated at a point of about 100 to 200 feet from the crest of this hill, a slight drop-off of between two and four inches was found.

The pickup truck that Davison was driving was struck with such force that it caved in the front end of the truck, caused the steering column to be driven almost up to the roof of the cab nearly to the back window, the shingles in the back caved in the back wall of the cab, and the collision broke the back of the pickup truck.

The record is devoid of any evidence to the effect that the State had actual or constructive notice of the alleged defect in the roadway where the accident occurred. The State, in this instance, did not have either actual or constructive notice of any condition that would show it was the proximate cause of the accident.

Claimant having failed to prove the accident was caused by the negligence of the State and the evidence indicating that the cause of the accident was from the acts of decedent, award is hereby denied. Case dismissed.

ORDER ON DENIAL OF REHEARING

Holderman, J.

This matter comes before the Court upon petition of Claimants for rehearing and Respondent’s response to said petition.

Claimants’ petition sets forth, among other things, that the Court ignored the comparative negligence rules of the State of Illinois. The Court did not ignore said rules but was of the opinion there was not any negligence on the part of the Respondent.

It is hereby ordered that the petition of Claimants for rehearing be, and the same is, denied, and the Court’s original decision is affirmed.


text:
    (No. 76-CC-1788
    James H. Meskimen and Phyllis Meskimen, Claimants, v. The Department of Transportation of the State of Illinois, Respondent.

      Opinion filed August 29, 1983.

    F. Don Kelly, for Claimants.

      Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim against the State of Illinois as the result of the Claimant’s foot slipping on a ladder. It is being brought under the Structural Work Act. Claimant is basically alleging violation of the Structural Work Act because of the manner in which the ladder on which Claimant was injured was constructed.

It appears that the accident involved occurred on May 3,1975, at about 11:45 a.m. on a construction project known as 1-474 bypass bridge in Bartonville, County of Peoria, State of Illinois. Claimant was working on said project as an employee of S. J. Groves & Sons Company, and Claimant’s employer was hired by Respondent to aid in the erection and construction of said bridge. Claimant was injured while attempting to descend a ladder on said job. Mr. Meskimen was an operating engineer out of Peoria Local 649 and had worked out of this local about 20 years. He was sent to the 1-474 project by the union for the purpose of running the watering system. On the date in question, Claimant descended a ladder to the area of one of the pumps, the pump being about nine feet below ground level. The ladder was resting at the top against a dirt wall and had been in the same position for as long as Mr. Meskimen had been on the job. The construction of the ladder had not been changed nor had it been replaced by another ladder during the time Mr. Meskimen had worked there. Mr. Meskimen further stated that he would go up and down the ladder at least 12 to 14 times a day. The ladder was described as having had a hand rail with the rungs being constructed by 1 x 4 lumber. As Mr. Meskimen got to the bottom rung of the ladder and started to get off, his left foot slipped off the rung and got caught between the rail and the dirt wall and he then fell sideways. The rung of the ladder did not break.

There is some controversy as to the position of the bottom of the ladder in reference to the wall of the pit in which it was being used. It appears from reading the testimony of the various witnesses that the bottom of the ladder was approximately one foot away from the side wall. In view of the fact the pit was about nine feet deep, the bottom of the ladder had to be some distance from the wall or it would have a tendency to fall backward. There was no evidence of any kind or character to indicate this was the case.

The evidence is clear that Claimant had used this ladder ever since he first started working on this job and had used it many times a day. He was therefore familiar with the position of the ladder and the condition of the pit in which it was placed.

There is no question that Claimant suffered a severe injury. This is emphasized by the fact that he received a favorable decision under the Illinois Workmen’s Compensation Act.

Claimant testified that the ladder in question was constructed with 2x4 siderails with 1x4 rungs and a handrail. He further testified it had been raining as he descended the ladder and when he got to the bottom, his foot slipped and he fell, sticking his leg between the ladder and the embankment, and he fell to the side injuring his leg. He testified he came down the ladder backwards hanging onto the rungs of the ladder.

It is Respondent’s contention that there are two issues involved in this case, the first being whether the State of Illinois, as the owner of the bridge, was in the position of “having charge of the project” as envisioned by the statute, and the second being whether the ladder in question was “erected and constructed in the safe, suitable and proper manner” as required by the Act.

It is Respondent’s position that Respondent was not in charge of the project as envisioned by the statute and further that the record fails to show there was anything wrong with the ladder in question or that the State committed any wilful violation.

The evidence shows it had been raining on the day in question and that the bottom of the pit was muddy. Claimant testified he had cleaned his shoes with a screwdriver and the mud was already drying. The record is abundantly clear that the ladder in question had been used many times by Claimant who was thoroughly familiar with its position and the area where the accident occurred. The record also shows that a considerable number of individuals had used this ladder every day and the record is devoid of any evidence that any complaints had been made by anyone that the ladder was dangerous or did not conform to the Act.

Respondent argues very strongly that the record indicates that the control exercised by Respondent was directed solely to the quality of the product to assure that the end product would meet the engineering specifications spelled out in the contract documents. Respondent was also concerned not with how the result was achieved but only with the quality of the result.

Before Claimant can recover, he must prove that the Respondent was in charge of the work and committed a wilful or actual violation of said Act.

“Thus, before civil liability can arise under the act, the plaintiff must prove both that the defendant was in charge of the work and committed a wilful violation.” Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 391, 395-96.
“The plaintiff, however, must establish an actual violation of the act before he can recover.” Zizzo v. Ben Pelin Corp. (1979), 79 Ill. App. 3d 386, 393.

The record discloses that there were OSHA inspectors on the job and that the inspectors were Federal inspectors and not State inspectors. The record is devoid of any showing that any complaints had been made to the inspectors regarding any so-called violations of the Act.

It is the Court’s opinion that while this accident was unfortunate, Claimant has not met the proof required to establish liability on the part of Respondent.

Award is denied and this cause is dismissed.


author: Roe, C.J.

text:
    (No. 76-CC-2240
    Robert McKinney and Roxie McKinney, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 31, 1983.

    Robert McKinney and Roxie McKinney, pro se, for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The Claimants, Robert McKinney and Roxie McKinney, brought this action to recover damages allegedly sustained due to actions attributed to the Respondent. A hearing was held before Commissioner Robert J. Hillebrand, who heard testimony offered by both parties.

The incident complained of occurred on September 24,1974. The Claimants, residents of Illinois, owned and operated a trucking business with a business address in St. Louis, Missouri. Claimants allege that when they requested from the local office of the Illinois Secretary of State information as to what kind of license plates they needed for their truck, which was operating in Illinois, they were told they could use “trip permits”. (See section 3 — 403 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95½, par. 3 — 403).) They were arrested while using such a permit on the truck because they, as owners of the truck and business, were in fact residents of Illinois. See Ill. Rev. Stat. 1973, ch. 95½, par. 3 — 402B.

Claimants allege they lost income from their truck when it was impounded after the arrest, and this resulted from the failure of the Secretary of State’s employees to give accurate information.

Only Claimant Roxie McKinney testified on Claimants’ behalf at the hearing before the commissioner. Her testimony as to damages follows:

“Q. (Commissioner): You said here in your complaint that because of the impoundment of your trucks, you lost some money?
A. Yes. I figure.
Q. (Commissioner): What do you have to prove that?
A. I don’t have anything to prove it. We just could have worked those days. Q. (Commissioner): How do you know that?
A. It didn’t rain and everybody worked everyday from that day on.
Q. (Commissioner): How many days were you down?
A. I would say roughly thirty days.
Q. (Commissioner): Thirty working days or thirty days altogether?
A. Not working days. It would be probably twenty, twenty-five working days. They were out there about a month, so I figured—
Q. (Commissioner): How long had you been working at this job?
A. I don’t remember.
Q. (Commissioner): I mean before the impoundment, how long up to that time?
A. A week or two, maybe a month.
Q. (Commissioner): And how much were you earning?
A. We were making $25.00 an hour.
Q. (Commissioner): Your complaint here, or the claim you filed, says you were making $16.00 an hour.
A. No. I believe it was twenty-five.
Q. (Commissioner): Do you have anything to indicate, any document to show what you were earning?
A. No.
Q. (Commissioner): How many hours were you working?
A. Eight hours a day.
Q. (Commissioner): What were your expenses? I mean all of that is not net income to you. You had expenses?
A. Yes. Gas, oil, fix flats and pay a driver.
Q. (Commissioner): Do you have any idea how much you were earning clear a day?
A. No.
Q. (Commissioner): None at all?
A. No. At least it would be a little more or less, depending on if you had a flat or a breakdown or how much gas. Sometimes you use more gas and sometimes you use less gas, depending on how many trips you made.”

Furthermore, testimony by both the Claimant and the State of Illinois indicated that the Claimant could have had the truck released the next day if the Claimant had simply applied for a proper license plate. According to Claimant’s testimony, however, Claimant waited three weeks before mailing an application for new license plates.

According to Illinois law, if there is no evidence as to the exact amount of profit and overhead and no evidence is presented to prove the specific components of the overhead and expenses, a court will not grant an award for lost profits. (F. E. Holmes & Son Construction Co. v. Gualdoni Electrical Service, Inc. (1982), 105 Ill. App. 3d 1135, 435 N.E.2d 724.) Therefore, since Claimants have failed to prove any damages, an essential element of their claim, it is not necessary to decide whether Respondent was negligent or guilty of any action which would allow Claimants to recover. (It is difficult to ascertain from the pleadings the theory upon which Claimants base their claim.) An award cannot be granted unless there are damages proven.

Assuming, without deciding, that Claimants have stated a theory upon which relief could be granted, this Court orders, based on the foregoing, that this claim be, and hereby is, denied.


text:
    (No. 76-CC-2599
    Lucille Cataldo, Roseanne Garritano, Mary Lou Vivacqua, and Concetta Lenti, Claimants, v. The State of Illinois, Respondent.

      Opinion filed June 15, 1983.

      Order on denial of reconsideration filed September 19,1983.

    Sandman & Levy (Stewart M. Zelmar, of counsel), for Claimants.

      Neil F. Hartigan, Attorney General (Kevin J. Capéis, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim filed as a result of a one-car automobile accident which occurred on May 9,1976, at 127th Street West and Kedzie in Blue Island, Illinois.

Claimants allege that the proximate cause of the accident was a defective manhole cover which caused a tire blowout to the car involved. Claimant Cataldo was the driver of the vehicle involved in the accident. She testified that at approximately 9:00 p.m. on May 9, 1976, she was driving her automobile in a westerly direction on 127th Street in the right hand lane about one and one-half feet from the curb. The weather was clear and dry. She was familiar with the area and it was well lit. Shortly after she crossed Kedzie Avenue, she heard a noise, a thud on the right rear side of her car, and the car went out of control. Her vehicle swerved to the left and right and travelled approximately 40 feet after the thump was heard. The car was brought to a stop without colliding with any other object. After stopping, the driver walked back behind her vehicle and saw an open manhole cover with part of the cement rim missing. In her discovery deposition, Claimant indicated she saw no cracks or depressions around the hole. There was no property damage other than a flat tire to her right rear wheel.

While approaching the scene of the accident, Claimant testified she noticed nothing unusual about the manhole cover and that she had passed the area previously and noticed nothing out of the ordinary in the area. Neither she nor any of the other Claimants knew how long the alleged defect had existed.

The other Claimants were passengers in the vehicle at the time the accident occurred. They all had claims for alleged injuries suffered in the accident and they testified to the fact that previous to the day in question, they had no occasion to complain about the manhole cover.

Respondent offered no evidence except a departmental report which was to the effect that there had been no previous complaints about this particular manhole cover. There is no evidence showing Respondent had previous knowledge of any defect in said manhole cover.

All of the testimony of Claimants as to obvious defects in the manhole cover was impeached by Claimants’ discovery depositions and it is apparent the State did not have either actual or constructive knowledge of the alleged defect.

This Court has consistently held that the claimant must prove the State had either actual or constructive knowledge of the dangerous condition which caused the accident complained of, that the proximate cause of the accident was the failure of the State to remedy the dangerous condition, and that claimant was free from contributory negligence. See Container Transit, Inc. v. State (1979), 33 Ill. Ct. Cl. 225, 226.

This Court has held on many occasions that the State is not an insurer of the conditions of the highways under its control but does have a duty to the public to use reasonable care in maintaining its roadways.

In view of the fact the State did not have either actual or constructive knowledge of the dangerous condition which allegedly caused the accident, Claimants have failed to prove liability on the part of Respondent.

Claim denied.

ORDER ON DENIAL OF RECONSIDERATION

Holderman, J.

This matter comes before the Court upon motion of Claimants for reconsideration of the Court’s order heretofore entered.

It is hereby ordered that Claimants’ motion for reconsideration be, and the same is, denied, and this caused is dismissed.


text:
    (No. 77-CC-0521
    James R. Potter and Thomas F. Londrigan, Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 8, 1983.

    Londrigan & Potter, for Claimants.
    Neil F. Hartigan, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

James R. Potter and Thomas F. Londrigan bring this claim for attorney fees alleged to be due Claimants for services rendered to the State of Illinois Department of General Services (hereinafter called DCS).

In September of 1973, DCS was preparing to challenge Illinois Bell Telephone’s request for a rate increase in proceedings before the Illinois Commerce Commission. DCS had been granted leave to intervene in the proceedings because the State of Illinois is a consumer of telephone services and the increase, if granted, would have increased State expenditures for telephone service by $3 million. The Director of DCS, Roland Burris, believed that in proceedings of such magnitude, the Department would be best served if it was represented by an attorney. He therefore contacted the Claimant James Potter to discuss the matter.

On September 5, 1975, Kenneth Whitney, Chief Counsel for DCS, sent the following letter to William I. Goldberg, Chief Counsel to the Governor:

“Dear Mr. Goldberg:
Director Burris suggested that I send to you for approval the enclosed letter addressed to Attorney General Scott.
As you are aware, we have retained Mr. Potter to represent us in the Illinois Bell Telephone Company rate case (Illinois Commerce Commission, Docket No. 59666).
Mr. Potter is to be paid at the hourly rate of $55.00, and reimbursed for incidental expenses, including, but not limited to, travel and accommodations.
If the letter meets with your approval, please forward to the Attorney General. If not, please advise.
Very truly yours,
Kenneth A. Whitney Chief Counsel
KAWmjl
Enclosure”

Goldberg replied by writing the following advice on the original letter, which he then sent to Whitney:

“He (Potter) does not need to be appointed to represent (the) Department in (an) administrative proceedings. Arrangement is fine.”

Goldberg also enclosed copies of correspondence between Thomas Murphy, Director of the Illinois Liquor Control Commission, and Bernard Genis of the Attorney General’s Office, dated July 7, 1975, in which Mr. Genis states:

“It is the policy of this office to avoid any and all situations where a conflict of interest may arise. This would come about in situations where, as here, two state agencies are adverse or may take an adverse position in a particular matter. Since we are also the attorneys for the Fair Employment Practices Commission which may take an adverse position to yours in this matter, we must decline your request for representation herein.
Moreover, we will decline to represent either agency herein unless, and until their positions are compatible, as on administrative review, should it occur.”

Goldberg believed that these comments were relevant, since the Attorney General’s Office is required by statute to represent the Illinois Commerce Commission.

There is no evidence that Goldberg had ever been in contact with the Attorney General’s Office regarding the appointment of Potter, nor is there any evidence that DGS had been in contact with the Attorney General’s Office regarding the appointment of Potter. Potter did not contact the Attorney General’s Office and the Attorney General’s Office was never apprised of a potential conflict.

On September 24, 1975, Burris sent Potter a letter confirming the oral agreement to pay Potter $55.00 per hour, plus expenses, up to a sum not to exceed $25,000.00. All bills were to be submitted to DGS for payment. This letter was accepted and signed by Potter.

According to the itemized bills submitted by Potter, he began preparing for the hearing on December 1,1975, and he performed 135.75 hours of service for DGS between that date and March 8, 1976. On February 4, 1976, the Illinois Commerce Commission issued a ruling granting Illinois Bell a rate increase of $70.4 million dollars, which was $115 million dollars less than originally requested. Illinois Bell immediately sought administrative review in the Circuit Court of Sangamon County and appealed those rate increases which had been denied, and Governor Walker ordered DGS to cross-appeal the increase which the Illinois Commerce Commission decision granted. On March 8,1976, Walter Russell, the then-acting director of DGS, wrote to the Attorney General’s Office and requested that Potter be appointed as a special assistant attorney general for the Department of General Services. Attorney General Scott answered on May 18, saying that he was instead appointing special assistant attorneys general John P. Meyer and Randall Robertson in the administrative review proceedings. On April 7, Potter entered his appearance in the circuit court for DGS. Director Burris answered Attorney General Scott’s letter on April 13, 1976, and stated that DGS did not find the appointment of Meyer and Robertson to be satisfactory. He felt that “it would be more efficient” to continue with Potter. Attorney General Scott answered on April 14 by stating that the appointing of an attorney by DGS was illegal and that he would notify the Comptroller, George Lindberg, that payment of funds to any attorney appointed by DGS would be unauthorized. Mr. Burris’ response of April 21, 1976, follows:

“I am in receipt of your letter of April 14,1976 regarding the Department of General Services proposed arrangement for representation in the above-entitled matter.
You stated that you were very surprised to learn, from my letter of April 13th that I ‘had appointed an attorney to represent the Department of General Services in the Illinois Bell rate case.’ I have not ‘appointed’ an attorney to represent the Department in the appeal of the I.C.C. decision. Indeed, on March 8, 1976, Walter Russell, then Acting Director of this Department, wrote to Dean Herzog of your office summarizing the status of the proceedings and requesting your authorization to have the same attorney represent us in the appeal who had represented the Department in the administrative proceedings. A copy of that letter is enclosed. Indeed, I had assumed that, in view of the public importance and notoriety given to those proceedings you were aware of the Department’s intervention and representation in that matter.
I was, frankly, surprised and disturbed at your March 18 reply to the March 8 letter, which implicitly refused our request and designated — without consultation — two attorneys who have no familiarity with the case.
In this regard, I understand that your office represents the Illinois Commerce Commission, the administrative agency whose decision we are contesting. In these circumstances there would, I believe, be a conflict of interest if your office insisted on choosing and controlling the attorneys who are to represent the interests of this Department which are directly adverse to the Commission.
In our judgment, Mr. Potter ably represented this Department in the administrative proceedings before the Commission. He is thoroughly familiar with the record. If you do not wish to appoint Mr. Potter as Special Assistant Attorney General, then I would request that you give your consent to his representing the Department in this matter so that we can prosecute the appeal without disputes as to authority.”

Burris received no further reply from the Attorney General’s office.

On May 3,1976, Potter refused to sign a stipulation on behalf of DGS, since he had not received authorization from the Attorney General’s Office. Potter then sought directions from the Sangamon County Circuit Court on June 15, 1976. On June 30, the Circuit Court ruled that it would not give directions to either DGS or to Potter. Potter then signed a new agreement with DGS and filed a separate complaint for an injunction and declaratory judgment on behalf of DGS against the Attorney General that same day, in which DGS sought a declaration that a conflict of interest existed in the Attorney General’s attempt to represent the Department and the Illinois Commerce Commission and also an injunction restraining the Attorney General from seeking to represent the DGS or from interfering with its right to contract for legal services. On July 23, 1976, after notice and hearing, the Circuit Court entered a preliminary injunction restraining the Attorney General from representing either the Illinois Commerce Commission or the Department of General Services and also restraining the Attorney General from interfering with DGS’ retention of “contractual legal services independent of (the Attorney General’s) Office.” On August 6, at the request of the Illinois Commerce Commission, this order was modified to allow the Attorney General to represent the Illinois Commerce Commission. On August 9, the Attorney General sought to withdraw its representation of the Illinois Commerce Commission, but the request was denied by the Circuit Court. On August 20, 1976, the Attorney General sought review of both the injunction and the subsequent order in mandamus actions before the Illinois Supreme Court. Meanwhile, pursuant to the circuit court orders, Potter and his partner, Thomas F. Londrigan, the other Claimant, represented DCS in the supreme court proceedings. (Scott v. Cadigan (1976), 65 Ill. 2d 477, 358 N.E.2d 1125.) According to the itemized billing submitted by Potter, he spent 6.75 hours on the appeal to the Sangamon County Circuit Court and he and his partner spent 133.0 hours preparing for the suit against the Attorney General’s Office and the subsequent review by the Illinois Supreme Court. Potter also alleges that he incurred $322.18 in expenses. Of that $322.18 in expense money, $176.43 was from the Illinois Commerce Commission hearing, $111.41 was from the administrative review, and $34.34 was from the suit against the Attorney General. Claimants state that they are therefore entitled to $15,152.50 in fees for legal services and $322.18 in expenses, for a total of $15,474.68. Vouchers for these claims were submitted to the Comptroller of the State of Illinois, who has refused payment. The facts are presented by stipulation of the parties.

In the opinion of the Court, the claims must be divided into two parts: (1) those claims arising out of the Illinois Commerce Commission hearing; and (2) those claims arising out of the Claimants’ suit against the Attorney General.

The claims arising out of the DGS suit against the Attorney General are clearly allowable. Section 6 of “An Act in regard to attorneys general and state’s attorneys” provides that a court may appoint special counsel in place of the Attorney General whenever the Attorney General “is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend.” (Ill. Rev. Stat. 1975, ch. 14, par. 6.) The term “interest” had been defined to include two situations. The first situation is where the Attorney General is interested as a private individual; the second is where the Attorney General is an actual party to the action. (E.P.A. v. Pollution Control Board (1977), 69 Ill. 2d 394, 396, 372 N.E.2d 50, 52.) In the suit seeking to enjoin the Attorney General from interfering with DGS’ hiring of outside legal services, the Attorney General was a named party to the suit. DGS was therefore entitled to court-appointed counsel. The circuit court authorized Claimants to prosecute this suit. They are therefore entitled to reasonable compensation from the State for the services provided in the suits filed by DGS in the circuit court and in the mandamus actions in the supreme court. The claim for legal services rendered in the Illinois Commerce Commission hearings is somewhat different, however.

Article V, section 15 of the Illinois Constitution of 1970 provides that “The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law.” In People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 359 N.E.2d 149, the Illinois Supreme Court held that this provision means the Attorney General is the sole officer entitled to represent the State in administrative reviews, and therefore any legal representation of a State agency before an administrative review board which is not authorized by the Attorney General’s Office is in violation of Article V, section 15.

Claimants argue that DGS sought the approval of the Attorney General but that William Goldberg, chief counsel to the Governor, informed them that the Attorney General’s approval was not necessary pursuant to a policy that the Attorney General had recently adopted not to take sides where two agencies might come into conflict. Since the Attorney General is required to represent the Illinois Commerce Commission, Claimants argue that they were not required to seek the approval of the Attorney General. Claimants’ argument must fail for at least two reasons. First, according to the supreme court, the Attorney General is the sole legal representative of the State of Illinois unless the Attorney General is named in the suit or unless he is involved as a private individual. The Attorney General may even represent conflicting State agencies if it chooses to do so. (E.P.A. v. Pollution Control Board (1977), 69 Ill. 2d 394, 372 N.E.2d 50; People ex rel. Scott v. Briceland, supra.) Therefore, implicit in the Attorney General’s powers is the right to examine the legal position of State agencies involved in conflicts and the right to determine on a case-by-case basis whether the Attorney General should become involved in the conflict. The Attorney General was never given such an opportunity in this case. Neither Goldberg, nor anyone from DGS, nor anyone from Potter’s office ever contacted the Attorney General.

Second, Claimants’ argument is based on their belief that Genis’ letter to Murphy at the Illinois Liquor Control Commission granted to DGS implied permission to contract for outside legal services without informing the Attorney General if DGS believes that a potential conflict of interest may arise. The Court, however, does not believe that the facts support Claimants’ position. Genis’ letter was interoffice correspondence between the Attorney General’s Office and the Liquor Control Commission. There is no evidence in the record that the letter was meant to be a blanket policy that allows any department to unilaterally commission outside legal services. Even accepting that the letter represents a strict policy of the Attorney General and that this policy has no exceptions, all State agencies are still required to inform the Attorney General of potentially conflicting positions between State agencies so that the Attorney General can evaluate whether potential conflict does in fact exist. Furthermore, the Court is not satisfied that the letter represents a strict policy of the Attorney General. Office policies are not rules of law and are subject to change at any time. In a situation such as this one, it is incumbent upon the agency involved to contact the Attorney General to determine whether the general policy applies based upon the specific factual situation present. No contact was made with the Attorney General regarding the appointment of Claimant Potter before the Illinois Commerce Commission hearings. The appointment of Potter was therefore clearly in violation of State law.

This Court has repeatedly held that in such cases where a person has rendered services at the instance of persons mistakenly purporting to have State authority to contract, those claims must go uncompensated no matter how unjust it may seem. (Schutte & Koerting Co. v. State (1957), 22 Ill. Ct. Cl. 591; Wasson v. State (1939), 10 Ill. Ct. Cl. 497.) In Wasson, this Court held

“that whoever deals with a municipality does so with notice of the limitations on it or its agent’s powers. All are presumed to know the law, and those who contract with it or furnish it supplies, do so with reference to the law, and, if they go beyond the limitations imposed, they do so at their own peril.” 10 Ill. Ct. Cl. 497.

The Court finds that $7,074.34 in legal fees and $34.34 in expenses are attributable to the cases for which compensation should be granted. The Court hereby awards Claimants the amount of $7,074.34 in legal fees and $34.34 for expenses.


text:
    (No. 77-CC-0967
    Brighton Building Maintenance Co., Krug Excavating Co., and Western Asphalt Paving Co., an Illinois joint venture, Claimant, v. The State of Illinois, Respondent.

      Order filed May 17, 1982.

      Order denying petition for relief from judgment filed January 11,1984.

    Warren Fuller, for Claimant.
    Neil F. Hartigan, Attorney General (Saul R. Wexler, Special Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon motion of Respondent for summary judgment and objections to said motion by Claimant.

The issue in this matter is whether or not Rossetti Contracting Company, Inc., a subcontractor doing work for the Brighton Building Maintenance Co. and others, should be paid for extra work done for the State despite the fact that the original contractors suffered the following penalties: Fines of $537,000.00 against each of the three companies; the suspension from eligibility to bid on both State and Federal contracts; and the imprisonment of its two principal officers and shareholders.

It is Claimant’s contention that it should not be barred by section 14 of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.14) from pursuing its action and alleges that it had no part in any of the proceedings that led to the punishment of the original contractors.

This Court is faced with the decision of whether or not the taint of Claimant’s original fraud in the procurement of the original contract carries over to taint the separate, though related, claim for extra work performed in the saw-cutting operation.

Our interpretation of section 14 of the Court of Claims Act permits us to treat the extra work as being a separate claim, as the rule plainly states that we may disallow claims, or such parts thereof as are burdened with fraud.

The Claimant makes a strong, logical and well reasoned case why the original fraud should be blocked out of the Court’s consideration in determining the merit of his present claim. Based on his reasoning, we agree we have authority to do so.

This Court, in Metal Air Corp. v. State (1977), 32 Ill. Ct. Cl. 103, stated that contracts entered into in which bid rigging is involved are contrary to Illinois statutes and therefore should be dismissed.

The nature of the fraud involved is so blatant that both congressional acts and acts of our legislature have declared a public policy by providing a severe criminal penalty and civil remedy for treble damages, that we are of the opinion for us to allow the claim would be diluting this public policy declared by our legislative bodies in the type of fraud engaged in by Claimant.

Claim denied.

ORDER DENYING PETITION FOR RELIEF FROM JUDGMENT

Holderman, J.

The questions now before the Court arise out of the following history of this case:

Brighton Building Maintenance Co. et al. had a prime contract with the State of Illinois for certain road improvements. Claimant here, Rossetti Contracting Co. Inc., was a subcontractor working under the prime contract and had performed substantial services in connection with extra work required. Brighton filed a claim before this Court for the unpaid balance due the prime contractor.

The State moved to dismiss the claim of the prime contractors based on so-called “bid rigging” constituting fraud against the State and thus subject to disallowance under section 14 of the Court of Claims Act. (Ill. Rev. Stat. 1983, ch. 37, par. 439.14.) The fraud was substantiated by evidence and on May 17, 1982, this Court dismissed the claim of the prime contractor. The fraud was the basis of criminal prosecution resulting in guilty verdicts.

Rossetti, as a subcontractor, filed a petition in the original proceedings to intervene on June 20,1978, which petition was denied by this Court. The petition had been filed by Rossetti because it felt that in light of the State’s charge of fraud against the original Claimants, its (Rossetti’s) interests could or might be inadequately represented and that the State “may attempt to utilize its affirmative defense (fraud) charging the other Claimants with attempting to defraud the State of Illinois, in some fashion so as to deny herein to Rossetti, an acknowledgedly innocent third party”. It stated it previously did not intervene as it was not felt necessary because (absent the charge of fraud) the “present Claimants adequately represented its interest”.

We were of the opinion in denying the subcontractor’s petition to intervene that notwithstanding it was free of any fraudulent conduct, it would be a dilution of the strong public policy against fraud when public funds were involved, to permit the subcontractor to sustain a claim when it was based on or derived through the fraudulent contract involved. (Wayne Sales Financial Corp. v. State (1979), 32 Ill. Ct. Cl. 963.) For the Court to direct payment to subcontractors or others who performed under prime contractors would inure to the direct benefit of the prime contractors, thus accomplishing indirectly what couldn’t be obtained directly. Wayne Sales, supra.

While we recognize that the State has received a benefit from the subcontractor’s work, there is a long line of cases which hold that our jurisdiction does not encompass quantum meruit. (See Schutte & Koerting v. State (1957), 22 Ill. Ct. Cl. 591,626; Hofer v. State (1978), 32 Ill. Ct. Cl. 745.) In this respect we differ from the ordinary courts of general jurisdiction. In addition, persons dealing with the State are held to whatever, terms the legislature may impose. (Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715.) The result of these limitations are oftentimes seen to be harsh, but the legislature has never authorized this Court to act otherwise.

Rossetti, as a subcontractor, had a remedy, had it chosen to pursue it, under section 23 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1983, ch. 82, par. 23), which set forth a procedure whereby subcontractors can place a lien on public funds. Rossetti apparently neglected to avail itself of the provisions of this Act.

Even in a court of general jurisdiction, a subcontractor may not maintain a law action against the owner alone. Not having privity of contract with the owner, he may not sue to establish a quasi contractual liability on the theory that it would be an unjust enrichment for the owner to retain the benefit thereof without payment therefore. Sloan v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1908), 140 Ill. App. 31, 33; Vanderlaan v. Berry Construction Co. (1970), 119 Ill. App. 2d 142, 255 N.E.2d 615; Phillip S. Linder & Co. Inc. v. Edwards (1973), 13 Ill. App. 3d 365, 300 N.E.2d 283.

In Vanderlaan v. Berry Construction Co. (1970), 119 Ill. App. 2d 142,144, the court said, “In the absence of an express contract with the owner, a subcontractor, or one contracting with a principal contractor, cannot recover against the owner upon a contract theory for there is no employment between them. (Cites omitted.) As to recovery from the owner, the rights of a subcontractor arise under the mechanic lien statute,” citing Suddarth v. Rosen (1967), 81 Ill. App. 2d 136, 224 N.E.2d 602.

As to being a third-party beneficiary, the applicable rule is set out in Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E. 498, which states that if the contract is a third-party beneficiary contract, then the third party may sue for breach. The test is whether the benefit to the third party is direct to him or is but an incidental benefit to him arising from a contract. If incidental, he has no right of recovery thereon. This case cited was not a mechanic lien case, however. A subcontractor is not a third-party beneficiary, as the benefits to him arise as an incidental benefit from the prime contract. Therefore he cannot sue the owner directly.

It now appears from the record before us that Rossetti on December 27, 1982, filed an action in the Circuit Court of Cook County titled Rossetti Construction Co., Inc. v. The State of Illinois Court of Claims, No. 82-L-51326. The Respondent moved to dismiss and the motion was argued. On September 22, 1983, the circuit judge directed Rossetti to petition the Court of Claims for redress and if “no relief is granted within 60 days of the Order, Rossetti is given leave to petition this Court for relief at that time”. On October 19, 1983, Rossetti filed its present motion to intervene and for relief from judgment. It requests this Court to set aside our order of May 17,1982, to the extent of its claim. The State moved to strike by motion filed December 5,1983. From the transcript of the proceedings in the circuit court, it appears that the circuit judge said: “But based on the pleadings only, Rossetti was treated manifestly unfairly,” i.e., by the Court of Claims.

The State’s position has been at all times that there was no privity between Rossetti and the State, and its claim is derived through the prime contract of Claimants and their claim stands in no better position than the prime contractor; that to permit Rossetti’s claim to prevail in such a situation would inure to the benefit of the prime contractors — the wrongdoers; that Rossetti’s claim lies solely against the prime contractor, not having pursued the remedy available under the mechanic lien act cited above.

While Rossetti was not and is not charged with any fraud, its position that its claim should have separate treatment was considered by this Court in the original proceedings.

We are of the opinion that based on the general rules of law relating to rights of subcontractors against owners and based on the overriding matter of public policy being involved, the original order of dismissal entered May 17, 1982, shall stand without alteration.

Motion for relief from judgment denied.


text:
    (No. 77-CC-1033
    Steven Shadden, by Judith Brems, his mother and next friend, Claimant, v. The State of Illinois, Respondent.

      Order filed October 3, 1983.

    Winstein, Kavenski, Wallace & Doughty, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court upon motion of Respondent for dismissal of said cause.

Respondent’s motion sets forth that by status report, dated March 31, 1983, Claimant advised the Court for the first time that the suit filed on April 4\ 1977, for Steven Shadden, by Judith Brems, his mother and next friend, against the Village of Colona, cause No. 77-L-50, in the Circuit Court of Henry County, Illinois, was dismissed on June 9, 1977, with leave granted to the plaintiffs to file an amended complaint within 28 days, and that no such amended complaint was ever filed.

Respondent’s motion also stated that Claimant filed one status report, undated or file stamped, one was filed on April 9, 1981, and another was filed on or about March 30, 1982. It was not until the filing of the status report on April 4, 1983, dated March 31, 1983, that Claimant informed the Court of the June 9,1977, dismissal of its case in the Circuit Court of Henry County.

Respondent’s motion further sets forth as follows:

“8. Respondent has subsequently received a certified copy of the Complaint, No. 77-L-50 filed in the Circuit Court of the Fourteenth Judicial Circuit, Henry County, Illinois, captioned Steven Shadden by Judith Brems, his mother and next friend v. Village of Colona, Illinois. Said certified complaint contains a certified copy of Notice of Hearing and a certified copy of the Judge’s Order dismissing said Complaint dated June 9, 1977 with paragraph 2 granting leave to Plaintiff to file an amended complaint within twenty-eight days, no amended complaint having therein been filed.
9. The Judge’s Order of dismissal shows on its face the attendance, on behalf of the Plaintiff, of Attorney Kavensky. A copy of certified record being attached hereto and made a part hereof.
10. The failure of the Claimant to follow through with its right to file an amended complaint constitutes a disregard for its obligations under Section 25 of the Court of Claims Act, which requires that:
‘Any person who files a claim before the Court shall, before seeking final determination of his claim, exhaust all other remedies and sources of recovery whether administrative, legal or equitable; except that failure to file or pursue suits against State employees, acting within the scope of their employment, shall not be a defense.’
11. Such failure to file an amended complaint further constitutes a violation of the Claimant’s responsibilities under Rule 6 of this Court which states that:
‘As required by Section 25 of the Court of Claims Act, the Claimant shall before seeking final determination of his claim before the Court of Claims exhaust all other remedies, whether administrative, legal or equitable.’
12. Rule 9 of this Court provides that failure to comply with Rule 6 shall be grounds for dismissal.
13. As the result of the long delay occasioned by the Claimant’s failure to diligently prosecute this action, the defense of this matter has become exceedingly more difficult, if not impossible, by the virgue (sic) of the passage of time which has resulted among other things in the resignation of the vital witness and that witness’ removing himself from the State of Illinois, last reported residence in Missoula, Montana.”

Respondent’s motion to dismiss was filed on July 27, 1983, and, to date, there has not been any response by Claimant or anyone on his behalf.

Claimant having failed to comply with Rule 6 of the Court of Claims, this cause is dismissed.


text:
    (No. 77-CC-1874
    Loren Hardesty, Claimant, v. The State of Illinois, Respondent.

      Order filed February 14, 1984.

    Loren Hardesty, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter comes before the Court on Respondent’s motion to dismiss.

The Claimant, an electrician who worked for the State, is seeking retroactive compensation based on a difference between the union scale agreed to by the industry and the prevailing rate paid by the State during the interim period between the date of the industry labor agreement and the time the State changed its prevailing rate scale. The issue involved in this case has long been settled and is exemplified by the case of Hollender v. State (1944), 14 Ill. Ct. Cl. 40, wherein this Court stated in effect that merely because contractors in a particular locality agreed to recognize and pay an increase in the hourly wage demanded by the union, the State, not having been a party to the agreement, is not bound to pay the same scale unless and until it agrees to do so. The State is therefore free to set its own policy as to prevailing rates.

This Court supports the long-standing policy of the State concerning prevailing wage rates. That policy as set forth in a Department of Personnel memorandum dated September 20,1974, is basically as follows:

1. International unions submit the industry contracts to the Department of Labor.
2. The Department of Labor applies its time stamp upon receipt of union contracts.
3. The Department of Labor forwards the time-stamped copies of the contracts to the Department of Personnel.
4. The Department of Personnel edits the contracts to remove “pyramid” items and adjusts the hourly rates accordingly.
5. Prevailing rates which are time-stamped before midnight of a calendar quarter and which have contractually effective dates on or before said quarter are released to be effective on that quarterly date (January 1, April 1, July I, October 1).
6. Prevailing rates which are time-stamped after midnight of the appropriate quarter are held for release on the first day of the next quarter. For example: A negotiated effective rate is April 1. The time stamp is April 2. The release date for the Department of Personnel will be July 1.

The Department of Labor received and applied its time stamp to the first contract upon which the Claimant bases his claim on June 24, 1974. In accordance with the policy of the Department of Personnel as set forth above, this contract was released to be effective on the first day of the quarter following its receipt by the Department of Labor, which was July 1, 1974.

The second contract relied on by the Claimant was received and stamped by the Department of Labor on June 18, 1975. In accordance with the above-mentioned policy of the Department of Personnel, this contract was also released to be effective on the first day of the quarter following its receipt by the Department of Labor, which was July 1,1975.

Since this claim is for retroactive compensation for periods of time prior to the release dates by the Department of Personnel for the effective application of these contracts, this claim must be, and hereby is, dismissed.


text:
    (No. 77-CC-2037
    McDonnell Douglas Automation Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 7, 1983.

    Gillespie, Cadigan & Gillespie (Patrick Cadigan, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant, McDonnell Douglas Automation Company (McAuto) comes before this Court seeking recovery for services rendered pursuant to a contract with the Secretary of State’s Data Processing Department. A hearing on this matter was held before Commissioner Parsons on November 30, 1979. It is the Court’s opinion that Claimant, McAuto, be awarded $44,925.57 as consideration for the data entry work it performed.

It appears that on or about May 26, 1977, Alex Martinegro, a regional marketing manager for McAuto, met with representatives of the Secretary of State’s office. The representative informed Martinegro that the Data Processing Department was overburdened with a large backlog of data entry work that required urgent completion. Since the Department’s usual vendors could not handle the volume, Me Auto’s assistance was needed in reaching a July 12 deadline.

On June 7, the parties agreed to a contract, the terms of which seemed well suited to the particular exigencies confronting the parties. The most troublesome provision for the parties to agree upon was the means of ascertaining the consideration that the State would provide. The Secretary of State’s office customarily used a “per stroke” method whereby a certain amount was paid for each letter converted. McAuto was reluctant to agree to a method that hinged upon quantity of output. They stressed that before acceding to that type of arrangement, a lengthy analysis would have to be undergone to determine exactly what price “per stroke” would be acceptable. This however, would be time consuming and frustrate the Department’s goal of quick completion.

Alternatively, McAuto proposed a time and materials contract. The terms provided that McAuto’s costs would be compensable at fixed rates irrespective of their rate of production. In response to the Department’s inquiries as to rate of production, McAuto stated that on an easy job they could average 6,500 strokes per hour. Upon this assumption, the Department expressly agreed to compensate McAuto on a time and materials basis. Yet, sensitive to binding itself to a contract with a party with whom it had not before done business, and in light of its accepting McAuto’s pricing mechanism, the Department added Clause 15 to the contract:

“It is assumed that McAuto will average 6,500 strokes per hour. If McAuto does not, the State has the right to cancel the contract.”

Evidently the State sought to leave itself an out should there arise dissatisfaction with McAuto’s rate of production. In fact, due to the following circumstances, the Court’s decision turns on construing this vital provision.

The seven weeks following June 7 were marked by concern and confusion over McAuto’s rate of production. Communication between the parties was fairly regular. McAuto consistently voiced its concern to the Data Processing Department that work was not going as fast as the parties had planned. It is noteworthy that the Department continuously encouraged McAuto, apparently convinced that efficiency would increase as time progressed. Alex Martinegro’s unchallenged testimony is illustrative of the point:

“We were told not to get discouraged; that this is in fact as easy job . . . that as you do it over a period of time, they have found with their other vendors that it becomes much easier. And we were told to continue progress and to attempt to keep them informed

Only at one point, on July 14, did McAuto represent that the results being attained were parallel to those envisioned at the time of contract. Soon thereafter, however, McAuto realized that their pace was, as before, half as fast as the parties had anticipated. Faced with this, on July 26, the Data Processing Department cancelled the contract pursuant to the aforementioned Clause 15. The Department’s letter stated that cancellation was necessary because McAuto had not averaged over 6,500 strokes per hour as the contract “required”.

What must be determined in this case is how much the Data Processing Department owes McAuto. Although the State of Illinois asserts in its brief that McAuto breached the contract, with an air of magnanimity it offers $19,205.95 as a fair settlement. The State says when a party breaches a contract “they have no right to claim compensation as if the contract had not been breached” and that “a party breaching a contract has no right to recover under the contract”. However applicable these legal principles are in other circumstances, here they are inapposite and the State’s analysis and settlement must be disregarded.

The State’s analysis misconstrues the plain meaning of Clause 15 and ignores the reason for which it was inserted. This is evidenced by the language in the Data Processing Department’s letter referring to the “required” rate of 6,500 strokes per hour. The only sense in which the 6,500 strokes per hour rate was a requirement was as a necessary condition prior to cancellation. The rate was clearly not a guarantee, the failure of which to meet, constituted a breach. Nowhere is the word “breach” mentioned. In fact, the circumstances that gave rise to the contract indicate that the rate was a target or a standard that the parties hoped McAuto could meet. If the rate was not met, the State had the option to minimize its dissatisfaction and terminate the relationship. Thus, when the Department did become unhappy with McAuto’s progress, they acted in accordance with the contingency expressly provided for. They simply released themselves from further obligation. The clause did not, however, allow the Department to renege on payments for work already performed. Furthermore, it is well-settled contract law in Illinois that in construing conditions inserted in a contract for the benefit of the party who made them, where the clause is ambiguous, the construction will be adopted which is least favorable to the party drafting it. (Richmond v. Brandt (1905), 118 Ill. App. 624.) Thus, even if the clause’s plain meaning and the surrounding circumstances weren’t clearly dis-positive, the Data Processing Department would still bear the onus of the faulty draftsmanship.

“In construing a contract, and determining the intention of the parties, the instrument should be read and considered as a whole, and the meaning of particular language may be enlarged or limited according to the true intent of the parties as made manifest by the various provisions of the contract as a whole.” (Illinois Law and Practice, sec. 215 Contracts, pp. 372-73, and cases cited therein). In applying this fundamental principle, the Court finds that McAuto correctly determined the amount due it. Item 12 of the contract states that upon termination of the contract, the customer must pay all charges. Item one states that all charges are to be determined on a time and materials basis. Individual costs are itemized on page two. Using these figures, the amount due McAuto can be determined as follows:

Data Entry 4734.7 hours x 8.95 per/hour $42,375.51

Card Load 25.5 hours x 100.00 per/hour 2,550.00

Amount Due......$44,925.57

It is hereby ordered that the claim be granted in the amount of $44,925.57.


text:
    (No. 78-CC-0738
    Thomas Begg, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 8, 1983.

    McKenna, Storer, Rowe, White & Farrug, for Claimant.
    Neil F. Hartigan, Attorney General (Francis Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim by one Thomas Begg, Jr., a former special agent for the Illinois Bureau of Investigation, who is seeking to collect overtime pay alleged to be due him.

Claimant is a former special agent, Department of Law Enforcement, Illinois Bureau of Investigation, and was employed in that capacity from April 1970 through May 31,1977. He received his training at the Illinois State Police Academy and in June 1970 he became a special agent assigned to either the Organized Crime Division or the Special Investigation Division until he terminated his employment.

At the training academy, Claimant was advised that as a special agent he would be required to work additional hours over and above the normal hours of a work week and, after receiving this warning, he still continued to work for the State in his capacity as special agent. Claimant was not required to punch a clock nor report to his office on a daily basis. The nature of the work required working odd hours and working hours in addition to the ususal 40-hour week. Overtime was an authorized part of his duties and his supervisors expected overtime in order to complete assignments. Claimant voluntarily worked overtime in order to complete his investigations on many occasions.

In view of the fact the job entailed additional hours, the Illinois Bureau of Investigation instituted a policy of granting compensatory time off. For each hour worked in excess of 40 hours each week, agents would be allowed an hour of compensatory time.

As a result of the heavy case load and insufficient manpower in the Department, none of the agents were able to take all of the compensatory time earned but were limited to two compensatory days off per month from 1970 to June 1, 1971, and to four compensatory days off per month from 1971 through 1977. Time worked and compensatory time earned and taken were reported by each agent on special forms supplied by the Illinois Bureau of Investigation.

Despite the fact that Claimant’s supervisors knew that no more than four days per month compensatory time would be allowed, Claimant’s request for compensatory time was granted by his supervisors. Claimant earned much more than four days of compensatory time each month but he was never able to take more than the allowed four days. He was told by his supervisors that earned compensatory time not taken within an 18-month period would be lost. He was also informed that no monies would be paid to him for unused compensatory time. Claimant did not know of any other special agents who were paid for unused compensatory time and he admitted that no persons in authority ever advised him that he would be paid for unused compensatory time.

Claimant, during the term of his employment, accumulated 2,242.5 hours of unused compensatory time, amounting to $14,170.07 based on his regular pay.

William O’Sullivan, the present deputy director of the Illinois Department of Law Enforcement, and Thomas Howard, Sr., formerly division chief of the Illinois Bureau of Investigation, both confirmed that overtime was expected of agents; that no authorization was ever made to pay special agents for unused compensatory time; and that because of case loads the special agents were not allowed to take all of the compensatory time earned.

On September 1, 1973, the superintendent of the Illinois Bureau of Investigation issued a general order which mandated that all compensatory time which was not used as of the time of termination of employment would be forfeited. Although Claimant could not remember reading the general order, he admitted that special agents were required to read each general order, sign it, and retain a copy for themselves.

The issue in this case is whether there are any rules of the Department of Personnel which provide for payment in cash of unused compensatory time and, if not, whether there was any contractual arrangement which would require Respondent to pay cash for unused compensatory time.

There are three Department of Personnel rules in question. Rule 3 — 340 became effective May 1,1970, and is as follows:

“Rule 3 — 340. OVERTIME: Authorized work in excess of an approved work schedule shall be overtime. Such work may be compensated for in cash or compensatory time as determined by the Director. Overtime work shall be distributed as equitably as possible among employees competent to perform the services required, and they shall be given as much advance notice as possible. Time spent in travel shall not be considered overtime.
Compensatory time shall be scheduled at the convenience of the employing agency, after consideration of the employee’s preference, but within 12 months of its accrual. If such compensatory time off is not liquidated within 12 months of its accrual the agency shall pay the employee for such overtime by adding a sum equivalent to its value at the employee’s rate of pay at the time the overtime was performed, to the employee’s salary voucher within 30 days after the expiration of such 12-month period.
The Director shall maintain lists of those positions which are exempt from the payment of overtime in any form.
This Rule shall be subject to such modification as may be necessary to comply with such provisions of Public Law 89 — 601 as may be applicable to positions in the State service. (As revised January 20, 1970).”

Rule 3 — 340 was revised and the following became effective on October 1, 1970:

“Rule 3 — 340. OVERTIME: Authorized work in excess of an approved work schedule shall be overtime. Such work may be compensated for in cash or compensatory time as determined by the Director. Overtime work shall be distributed as equitably as possible among employees competent to perform the services required, and they shall be given as much advance notice as possible. Time spent in travel shall not be considered overtime.
Compensatory time shall be scheduled at the convenience of the employing agency, after consideration of the employee’s preference, but within the fiscal year during which the related overtime was worked. If such compensatory time is not liquidated within the fiscal year during which it has been earned, said time must be liquidated in cash at the end of the fiscal year.
The Director shall maintain lists of those positions which are exempt from the payment of overtime in any form.
This rule shall be subject to such modification as may be necessary to comply with such provisions of Public Law 89 — 601 as may be applicable to positions in the State service. (As revised September 22,1970).”

On June 1, 1975, Rule 3 — 320 became effective. It is as follows:

“Rule 3 — 320. OVERTIME: For those positions approved by the Director and designated on lists maintained by the Director, authorized work in excess of an approved work schedule shall be overtime. Such work may be compensated for in cash or compensatory time as determined by the agency provided such desigation is in accordance with the Fair Labor Standards Act, as amended. Overtime work shall be distributed as equitably as possible among qualified employees competent to perform the services required, when overtime is required, and employees shall be given as much advance notice as possible. Except where required by law, time spent in travel shall not be considered overtime.
Compensatory time, if any, as earned hereunder, shall be scheduled at the convenience of the agency after consideration of the employee’s preference, but within the fiscal year during which such time was earned. If such compensatory time is not liquidated within the fiscal year during which earned, it shall be liquidated in cash at the end of the fiscal year.”

A thorough reading of Rule 3 — 320 shows that the rule grants cash compensation for overtime only to such employees who hold positions designated on lists maintained by the director. According to the evidence in this case (Respondent’s Group Exhibit No. 1), the position of special agent was never listed among the position titles eligible for cash payment for overtime. Actually, there is no authorization in Rule 3 — 320 for compensatory time for overtime hours, and therefore, compensatory time was granted without official sanction of the Department of Personnel and, in fact, was against the rules and regulations of the Department of Personnel.

Rule 3 — 340 in both of its versions is similar to Rule 3 — 320 except that it mandates cash liquidation of overtime for all positions except those on lists maintained by the director. Thus, in Rule 3 — 320, the director must maintain lists of those positions which are eligible for cash overtime and Rule 3 — 340 in both of its versions requires that the director maintain lists of those positions which are ineligible for cash overtime.

The lists maintained by the director were lists of those job titles eligible for cash overtime but also contained the words “all other job titles are not eligible for overtime.”

Claimant’s job title is not on the list of those eligible. It is therefore the Court’s belief that Claimant was ineligible for collection of compensatory time-off wages. To hold otherwise would completely void the above wording because it is the Court’s opinion that it is an inescapable conclusion that any job title not listed as eligible would be ineligible.

Claimant argues that since the Illinois Bureau of Investigation approved special agents as one category which accrued compensatory time, this means that it was designated and approved as one which accrued overtime and which, therefore, caused Rules 3 — 340 and 3 — 320 to mandate cash liquidation of the overtime. This argument, however, is without merit in that the designation of the eligible job positions was to have been made, according to the rules, by the director of the Department of Personnel. The director of the Illinois Bureau of Investigation had no authority to designate positions for overtime. As has been previously stated, the granting of compensatory time to special agents was without official sanction of the Department of Personnel and against the rules and regulations of the Department of Personnel.

It is the opinion of the Court that under the rules of the Department of Personnel Claimant is not entitled to a cash liquidation of uncompensated overtime work.

Claimant cites the case of McDougall v. State (1975), 30 Ill. Ct. Cl. 629. In that case, Claimants were employees of the Department of Law Enforcement as crime scene technicians and were seeking payment for overtime. Rule 3 — 340, which was in effect at that time, was to the effect that Claimants were entitled to cash liquidation of uncompensated overtime work; however, the Court points out that the Rule 3 — 340 in effect at the time of the McDougall case is not the same Rule 3 — 340 in effect at the time of Claimant’s employment. In the McDougall case, there was no reference to lists of eligible or ineligible persons to obtain cash for overtime. By the time this Claimant was employed, the rules had been changed to require that the director set out specifically which job titles were eligible for cash and which job titles were not eligible for cash and, as has been previously noted, the job title of special agent was never listed as eligible. Claimant has not proved any contractual agreement requiring cash liquidation of overtime hours not otherwise compensated for and, in fact, evidence introduced is to the contrary. The necessity for overtime was made a condition for employment and the fact that compensatory time would be limited to only four days per month was also made known to Claimant. Claimant admitted he was told that overtime work would not be paid for in cash. Claimant further admitted he had no expectation of any cash payment for overtime. The IBI also had a written policy denying overtime pay, which written policy was encompassed by an IBI general order which stated:

“Personnel will forfeit regular days off and compensatory time not taken before the date of separation.”

It is the opinion of this Court that Claimant is not entitled to receive payment for the hours of overtime worked by him. Claim denied.


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    (No. 78-CC-0739
    David Brinson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1984.

    Frank M. Bonifacio, for Claimant.
    Neil F. Hartigan, Attorney General (Hans G. Fladung, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a claim for false imprisonment alleged to have been inflicted upon Claimant by the Tinley Park Medical Center (Center).

After a hearing before a commissioner, Claimant failed to file a brief and the matter was, by order, taken up upon the evidence and Respondent’s brief only.

Claimant was arrested on the morning of April 15, 1976, at the CTA barn at Archer and Pershing, Chicago. Claimant had boarded the bus at the barn waiting for the bus to commence its run westbound in the direction of Claimant’s home. While waiting in the bus, at the barn, Claimant, who had been drinking, fell asleep. He was awakened by a CTA guard who ordered him off the bus. Upon leaving the bus an altercation occurred with the CTA guard, and the Claimant was arrested by the Chicago police upon a complaint filed by the CTA guard charging trespass and battery.

The same morning, Claimant appeared before a judge of the Circuit Court of Cook County. The examination was completed that morning as a result of which Dr. Gerson Kaplan signed a petition for hospitalization. A certificate of need for hospitalization was signed and the police thereupon transported Claimant to the Center. The petition stated that Claimant was paranoid, suicidal and dangerous to himself and to others. At the Center, the Claimant was placed on homicidal and suicidal precaution.

On the following day, April 16, 1976, at 2:30 p.m. at the Center, which day was Good Friday, Claimant was examined by a psychiatrist within the 24-hour time limit required by section 7 — 5 of the Mental Health Code of 1967 (Ill. Rev. Stat. 1973, ch. 91½, par. 7 — 5). The psychiatrist noted that “the patient shows no evidence of any reason for need of psychiatric hospitalization and should be discharged as soon as possible”. Claimant was not released until the following Monday, April 19, 1976. It is for this period of confinement that Claimant seeks damages for false imprisonment.

Respondent’s evidence, through their witness, Alfred Schwarz, the coordinator of forensic services for the Center, indicated that where a patient is received by way of a Circuit Court mittimus, as was the Claimant, a patient cannot be released directly by the Center but must be returned to the sheriff of Cook County. In the case of Claimant, a bond had been set on the criminal charges. The Center has no authority to accept bonds, nor is there any procedure at the Center for posting of bonds. When the patient is discharged, the sheriff’s police are notified and they pick up the patient from the hospital to return him to the House of Correction. The Center is not permitted to transport the patient between the hospital and the House of Correction.

The normal procedure is that the sheriffs police pick up the patient the day after they are called to do so, except in cases of calls made on Friday. Calls made on Friday are followed up by the sheriffs police by picking up the patient on the following Monday. The procedure is invariable and although the Center has attempted to obtain cooperation of the sheriff’s office to change this situation, they have been unsuccessful in so doing.

Although Schwarz was unable to testify that, in the case of Claimant, a call to the sheriff had actually been made on Friday, April 16, 1976, he was certain that such a call must have been made on Friday, April 16, 1976, because the sheriff’s police picked up Claimant on Monday, April 19, 1976.

Generally, an action for false imprisonment does not lie for a detention made by virtue of legal process duly issued by a court. Hendricks v. State (1949), 19 Ill. Ct. Cl. 68; Gee v. State (1954), 21 Ill. Ct. Cl. 573; Olsen v. Karwoski (1979), 68 Ill. App. 3d 1031, 386 N.E.2d 444.

In the instant case, it is clear that Claimant was detained by reason of legal process in accordance with the statute. Thus, the initial detention cannot be the basis of any valid claim. In view of the fact that there were no further legal documents which changed Claimant’s status as being lawfully detained, in the opinion of this Court the continued detention cannot be the basis of any valid claim.

Moreover, by reason of section 3 — 8—5(e) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1003 — 8—5(e)), a prisoner transferred to an institution of the Department of Mental Health and Developmental Disabilities is not discharged from the Department of Corrections but remains under the control of that Department.

In the case at bar, the Center, once having determined that Claimant was not in need of hospitalization, was under a duty not to discharge him unconditionally but to discharge him to the custody of the sheriff of Cook County. If the sheriff does not move quickly to obtain custody, such omission is not the responsibility of the Center. This Court finds from the evidence that the Center did notify the sheriff to pick up the Claimant on Friday, April 16, 1976, but the sheriff did not do so until April 19,1976. The unrebutted evidence was that further telephone calls or requests to the sheriff on Saturday or Sunday would have been futile. Thus, we find that the Center did all that it was legally required to do and was not in any way negligent. Indeed, the Center would have violated its responsibilities had they unilaterally released a person who was under a criminal charge without the posting of bond and without a court order.

Therefore, it is hereby ordered that the Claimant’s claim be, and hereby is, denied.