text:
    (Nos. 5885, 5899, 5908, 5923 and 5978
    Seidel Coal & Coke Co., The Elegante Ladies’ Apparel, Inc., F. W. Woolworth, Co., Allan A. Barnard, Insurance Co. of North America, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 2, 1980.

    Hoagland, Maucker, Bernard & Almeter, for Claimant.
    William J. Scott, Attorney General- (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

The above claims all arose out of one incident, a fire which occurred on February 1, 1970 at the F. W. Woolworth Building at 113 West Third Street, Alton, Illinois, and which fire, water and smoke spread to adjoining structures as to cause contents and structural property damage. The cases were consolidated for the purpose of the hearing and as such are treated in this opinion.

The Alton State Hospital was an institution for the insane maintained by the State of Illinois, Department of Mental Health.

The following acts of negligence were alleged by the Claimants in their complaints;

(a) That the Respondent or its agents negligently allowed Arthur Henry Reams, an inmate, to escape or run away from the Alton State Hospital.

(b) That the Respondent or its agents negligently allowed Arthur Henry Reams, an escaped or run-away inmate, to run at large.

(c) That the Respondent or its agents negligently failed to properly maintain control and proper supervision as to an inmate, namely Arthur Henry Reams, who had a history of numerous run-aways or escapes and having caused property damage.

(d) That the Respondent or its agents negligently failed to instruct the personnel at the Alton State Hospital who had direct supervision and control of Arthur Henry Reams, an inmate, as to said inmate’s past history of escapes and propensity to cause property damage.

(e) That the Respondent or its agents failed to instruct the personnel of the Alton State Hospital as to the reasonable and proper procedure of apprehending run-away or escaped inmates to avoid said inmate’s damage to property.

In order for the Claimants to recover, they must show negligence on the part of the Respondent, for as a review of the cases decided by this Court points out, the mere proof of an escaped convict followed by subsequent damages will not sustain an award. Jonatat v. State (1971), 27 Ill. Ct. Cl. 162; Dixon Trust Co. v. State (1956), Ill. Ct. Cl. 271.

From the testimony of witnesses and other evidence the court herewith makes the following findings of fact:

1. On February 1, 1970, Arthur Reams was a patient at the Alton State Hospital, assigned to a locked ward known as Chestnut, but had an unrestricted grounds pass, and left the Alton State Hospital grounds at or about 9:45 a.m. and proceeded to the downtown business district of the City of Alton.

2. The fire at the F. W. Woolworth Building was caused by Arthur Reams at or about 11:37 a.m. on February 1,1970, and said fire became a major fire in the downtown business district of Alton, Illinois.

3. The police records of the Alton City Police Department revealed that Reams had a prior history of escape from Alton State Hospital and had been arrested for burglarizing the F. W. Woolworth Building in 1964.

4. It is undisputed that there were no established procedures for the personnel at the hospital to follow for the apprehension of runaways and it was admitted that the Chestnut ward was understaffed in that four psychiatric aides are required on each ward rather than two.

5. The damages of the Claimants is substantiated by oral testimony and exhibits which were not disputed, and there is no question that the proximate cause of the damage to the various claimants was the action of Reams setting fire to the F. W. Woolworth Building.

The Court finds the Respondent was negligent in issuing an unrestricted on grounds pass to Reams when it had sufficient knowledge of his propensity to leave the institution imputed to it by the records of the Alton City Police Department. That Respondent was further negligent in not apprising the personnel where Reams was residing of his previous background of walking away from the institution and attempting to do damage to a particular building in the city of Alton.

Respondent contends that Claimant has failed to comply with the requirement of 111. Rev. Stat. 1969, ch. 23, par. 4041 and as a result this Court lacks jurisdiction to hear this claim.

Respondent’s argument concerning the requirement of filing a claim with the Department of Mental Health can be disregarded in that such a claim was filed. Respondent further argues that jurisdiction is lacking due to the fact that the Department of Mental Health did not conduct an investigation and recommend an award to the Claimants.

A similar argument was raised in the case of Dixon Fruit Company v. State (1956), 22 Ill. Ct. Cl. 271. In that case a claim was filed with the Department of Public Welfare and an investigation was conducted. For some unexplained reason the Department chose not to make a recommendation to the Court one way or the other. In response to a jurisdictional challenge this Court stated as follows:

“Did the Legislature intend the Department of Public Welfare to be the final arbiter of claims of this kind, and that by mere inaction or affirmative disapproval it could put an end to such claim”. We think not, as a careful reading of the Statute will reflect. . . . We think rather the Legislature intended that the Department could recommend favorable consideration if it saw fit, and that the Court of Claims would be entitled to either accept such recommendation, or, at least take it into consideration. We do not believe, however, that, because of the lack of such favorable recommendation, the Court of Claims could not hear and determine the claim itself.”

In the case at bar, the Department of Mental Health refused to take any action, and in fact, instructed the Claimants to proceed in the Court of Claims. Now, Respondent challenges this Court’s jurisdiction over this matter on the grounds that the Department of Mental Health neither conducted an investigation nor made a recommendation to the Court.

Obviously, as Dixon stated so clearly, the intent of the legislature and the purpose of the statute would be frustrated if the Department of Mental Health could deny Claimant a forum in this Court through its mere inaction or affirmative disapproval.

The Court finds that the jurisdiction of this Court to hear and determine claims under the statute is not conditioned upon a prior investigation and recommendation by the Department of Mental Health.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 6262
    Michael H. Rotman, Special Administrator of the Estate of James P. Fiormonti, Claimant, v. The Department of Corrections of the State of Illinois, Respondent.

      Opinion filed December 10, 1979.

   Holderman, J.

This matter comes before the Court upon the motion of Respondent to dismiss and Claimant’s answer to said motion.

Claimant is the administrator of the estate of James P. Fiormonti.

The amended complaint consists of two separate counts, each alleging damages due to the estate. The first count claims entitlement for damages due to an alleged unjust imprisonment and the second count claims entitlement for damages due to a wrongful death resulting from the unjust imprisonment.

The facts in this case are, briefly, as follows. The facts concerning James P. Fioramonti’s convictions were stipulated by both sides according to the record, and are as follows.

a. Indictment Number 66-492 — Claimant was convicted and sentenced to a term of ten to 15 years in the State Penitentiary on November 10, 1967.

b. Indictment Number 66-3289 — Claimant was convicted and sentenced to a term of ten to 15 years in the State Penitentiary also on November 10, 1967.

c. Indictment Number 64-573 & 64-574 — Claimant pleaded guilty on November 22, 1967 and was sentenced on November 27, 1967 to concurrent terms of ten to 15 years.

d. All of the terms of ten to 15 years were to be served concurrently.

e. On March 30, 1971, the Governor of Illinois pardoned the Claimant for Indictment Number 66-492 and the sentence for Indictment Number 66-3289 was commuted from ten-15 years to five-15 years.

f. The record shows no commutation, pardon or other action concerning the conviction and sentence for Indictment Numbers 64-573 and 64-574.

According to the foregoing facts, the Claimant was convicted and sentenced to serve concurrently all four indictments. Two of those indictments, which were being served during the period in question, were not pardoned nor even commuted in any way. Therefore, since Claimant was serving a valid sentence during the period in question, the Claimant was not unjustly imprisoned for the period in question.

Assume for the moment that the Claimant had a cause of action for unjust imprisonment resulting from the one indictment which was pardoned. There remains a second question concerning the validity of this claim. Does the cause of action for unjust imprisonment survive the Claimant’s death, which happened on June 14,1973?

Unjust imprisonment is a statutory cause of action confined to section 8 of the Court of Claims Act (Ill. Rev. Stat. 1975, eh. 37, par. 439.8) which provides:

“The Court shall have exclusive' jurisdiction to hear and determine the following matters: (c) [A] 11 claims against the state for time unjustly served in prisons of this State where the persons imprisoned shall receive a pardon from the governor ° e

It is Claimant’s contention that the claim for unjust imprisonment survives the death of Claimant and that his estate is entitled to carry on the proceedings for recovery for the two counts alleged in the amended complaint.

Respondent calls attention to the fact that regarding the claim for unjust imprisonment, two of the sentences he was serving had not been pardoned or commuted at the time of his death. This Court has always held that it is essential before recovery can be made for unjust imprisonment that the individual claiming the damages has been pardoned by the governor. The fact that proceedings had been started to obtain this pardon does not, in the opinion of the Court, satisfy the statutory requirements as to being pardoned.

The Respondent, in regard to Count II, moves for the dismissal of that count on the grounds that Claimant failed to provide statutory notice as required by section 22 — 1 of the Court of Claims Act, (Ill. Rev. Stat. 1975, ch. 37, par. 439.22 — 1) which states that an action for wrongful death must be commenced within two years after the death of the person injured. Notice in the present case was given two years, six months and 13 days after the death of Claimant.

It is hereby ordered that Respondent’s motion to dismiss be, and the same is, granted and this cause is dismissed.


author: POCH, J.

text:
    (No. 73-CC-0026
    Country Mutual Insurance Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 31, 1979.

    James S. Dixon, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant, Country Mutual Insurance Company, is the subrogee of its insured, Raymond Sewell, Hanna City, Illinois, by virtue of its net payments in the amount of $1,956.00 under a collision insurance policy covering a 1971 Ford pickup truck, which was damaged beyond repair on May 5, 1972, while being driven by one Jonathan Hill, an escaped inmate from the Hanna City Boys’ School, who had stolen the vehicle from the garage of the Sewell home.

The claim is made under Ill. Rev. Stat., ch. 23, par. 4041, and the amount of the claim is undisputed. Claimant in its amended complaint charges the State of Illinois with negligence as follows:

“11.....
A. Failed to properly maintain, watch and control the said inmate, Jonathan Hill, who was then and there under their supervision and control.
B. Upon learning of the escape of the inmate, Jonathan Hill, defendant failed to make a timely apprehension of said inmate.”

The facts are as follows: Jonathan Hill was a 14-year-old inmate of the Hanna City Boys’ School at Hanna City, Illinois. The Hanna City Boys’ School is a minimum security institution designed for inmates diagnosed as suitable for an open security setting, and who will be able to go back into the community. It is a special education school. There are no guards, jail cells, or any place with bars.

In March 1972, Jonathan Hill had been given a furlough home. Upon return to the school from furlough his behavior deteriorated, and he became a disturbing influence in the school. However, he was being processed for parole. On May 5,1972, the day of his escape, he and several other students destroyed $2,000.00 worth of equipment in the school science laboratory. For this he was told that his parole was denied. As a result of his parole being denied he was immediately classified as a run risk .

An additional night supervisor was assigned to his dormitory, so that there were two supervisors on duty rather than one. The supervisors were told of his activities that day and were specifically instructed to keep him under observation. The dormitory building is approximately 100 feet long and is open like an army barracks. The supervisors are expected to situate themselves so that they have an unobstructed view of the boys. In this case the door of a linen room closet was allowed to remain open, blocking the supervisors’ view of one of the exit doors of the dormitory. As a result, Jonathan Hill and another inmate were able to walk out of the dormitory without being noticed. They climbed over an eight-foot fence topped with three strings of barbed wire and escaped from the grounds. Their escape was immediately reported and they were chased, but the boys, walking through pasture land in the darkness, managed to keep ahead of their pursuers. The boys found Mr. Sewell’s pickup truck in his garage with the keys in it, stole the truck, and a few minutes later totalled it out.

The superintendent of the institution testified that Jonathan Hill had tried to escape once before, and should have been confined in an institution with greater security.

The preponderance of the evidence in the record is that respondent was negligent in guarding Jonathan Hill on the evening of May 5, 1972. The night supervisors were told he was a run risk, but in spite of specific instructions to keep him under greater surveillance than usual, he was allowed to escape from the dormitory.

Claimant has proven the allegations of paragraph 11 A of its complaint by the preponderance of the evidence, and the proof meets the standards required for recovery as set forth in United States Fidelity and Guaranty Company v. State of Illinois, 23 Ill. Ct. Cl. 188, and in Dixon Fruit Company v. State of Illinois, 22 Ill. Ct. Cl. 271.

The claim is, therefore, allowed in the sum of $1,956.00.


text:
    (No. 73-CC-0162
    Matthew Miholic, Individually and as Administrator of the Estate of Matthew Alan Miholic, Deceased, and on behalf of Deborah Miholic, a minor, and Dorothy Miholic, Claimants, v. The State of Illinois, Department of Public Works and Buildings, Division of Highways, Respondent.

      Opinion filed July 23, 1979.

    Terrence E. Leonard, for Claimant.

      William J. Scott, Attorney General (Saul R. Wexler, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim arises out of an automobile accident allegedly caused by the State’s negligence in failing to keep drainage ditches, and particularly a culvert, open to prevent flooding and icing of a State highway.

Evidence discloses that on March 2, 1971, at about 7:30 a.m., one Kenneth M. Laube was driving a 1966 Dodge Sedan in a southerly direction on Route 63 in Liberty Township, Illinois.

The occupants of the motor vehicle were Deborah Miholic, who was seated in the right front passenger seat, Lynn Nowak, seated in the left rear seat, and Matthew Miholic, deceased, seated in the right rear seat. The occupants were on their way to school at Carmel and Mundelein. The driver testified that he was driving about five to ten miles below the speed limit.

From the evidence presented, it appears that at a point approximately one-half mile north of Casey Road as the above vehicle came over the crest of the hill, the driver observed traffic being backed up in front of him. The driver started to brake his automobile. Recause the pavement was covered with ice, and in order to avoid a rear end collision, the driver steered his automobile into the northbound lanes of traffic where the car left the road and turned over three times throwing Matthew Miholic from the automobile. Matthew Miholic was taken to Condell Hospital in Libertyville, Illinois, where he was pronounced dead.

Charles Zradicka, a police officer, testified that he was the first officer at the scene of the accident. He further testified that he noticed a glaze of ice on the road, as shown by Claimant’s Exhibit 2.

Kenneth Laube, the driver, and Debbie Miholic also identified the icy condition as existing in the area where the accident occurred.

Walter Zentner, a farmer who lived in the area, testified there was a coat of ice on the southbound lanes of Route 63 caused by a culvert along the west side of the road being plugged which caused an overflow from the culvert and ice on the highway the previous morning. He further testified that the ice would melt in the daytime, water would flow over the pavement, and it would freeze at night. He testified the area covered with ice was approximately 100 feet in length.

David W. Tilus testified that the icy condition at the time of the accident was caused from a culvert being plugged with dirt causing the water to run onto the road and freeze. He further testified that there had been a prior accident one month before the accident now before the Court under similar circumstances.

There is evidence to the effect that some work had been done in the area resulting in loose dirt accumulating along the edge of the ditches in the area of the culvert and this dirt, together with debris, would block the culvert.

Pictures introduced into evidence by Claimant clearly demonstrate that the culvert was to a large extent blocked by debris. There was no evidence in the pictures showing there had been any recent attempt to clear out the culvert so the water would flow more freely and stop overflowing onto the pavement.

Matthew Miholic, father of decedent, and administrator of the estate received $12,000.00 from the driver’s insurance company in return for a covenant not to sue. He further testified that he paid the funeral bill of $1,300.00; he paid for a cemetery lot in the amount of $160.00, and a gravestone in the amount of $193.25. He further testified that his son was 15 years of age and was attending high school; that he was an average student and performed ordinary chores around the house. He also testified that he worked as a caddy and assisted in many ways around the house.

Joseph Kostur, called as a witness for the Respondent, testified that he investigated the accident site and further stated that he checked all records and found no record of any accident at or near the location of the Miholic accident. He further stated that there were no records indicating an icy condition at the location in question.

This claim is similar to the case of Carr v. Ill., 26 Ill. Ct. Cl. 155 which was previously heard by the Commissioner and an award entered by the Court. The Court in Burgener v. State of Illinois (1954), 25 Ill. Ct. Cl. 6, 10, stated:

“While the State is not liable for injuries from the natural accumulation of ice and snow, it may be held liable for failure to warn the traveling public of the dangerous condition of a highway caused by the unnatural accumulation of ice where it has had notice of such condition.”

This Court has repeatedly held that the State is not an insurer against all accidents, which may occur by reason of the condition of its highways. However, the State is negligent, if, having knowledge of dangerous conditions on its highways, it fails to warn users of the highways of such dangerous conditions.” 21 Ill. Ct. Cl. 521; 27 Ill. Ct. Cl. 136.

Before recovery can be made, Claimant must prove that he was free from contributory negligence, that the State was negligent, and that the negligence of the State was the proximate cause of the accident.

In cases such as the one before the Court, it must also be shown that the State had constructive knowledge of the condition of the highway.

The Court finds there was not any contributory negligence on the part of the decedent and that the State was negligent in failing to correct the conditions of flooding which resulted in ice on the highway and caused the death of decedent. There is evidence that this condition had existed for at least one month before the accident occurred, that it existed the day the accident happened, and that the State had constructive knowledge of the condition of the roadway.

The Court finds that the negligence of the State was the proximate cause of the death of the decedent.

The Court makes an award to Claimant as administrator of the estate of Matthew A. Miholic, deceased, in the amount of $13,000.00, the same being the difference between $25,000.00 and $12,000.00 which Claimant received from the driver’s insurance carrier.

The record lacks any evidence showing injuries or damages sustained by Deborah Miholic. Award is hereby denied to Deborah Miholic and her parents, Matthew Miholic and/or Dorothy Miholic.


text:
    (No. 73-CC-0276
    Elaine Perlman and Paul E. Perlman, Claimants, v. The State of Illinois, Respondent.

      Opinion filed December 13, 1979.

    Fischel, Kahn, Weinberg, Brusslin, Chapman & Roin (Dan R. Roin, of counsel), for Claimant.
    William J. Scott, Attorney General (Zeamore A. Ader, Special Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant, Elaine Perlman, has brought this action seeking to recover for personal injuries she sustained at the White Pines Forest State Park, (hereafter the park) in Ogle County, Illinois. Her husband, Paul E. Perlman, has brought an action for loss of consortium arising from the same incident.

The incident which gives use to this action occurred on July 10, 1972. Claimants allege that Elaine Perlman attempted to walk along a foot trail in the park, which had been established and maintained by the State, and that the State knew, or should have known, that the trail was unsafe and dangerous. It is charged that the State failed to post a warning of the dangerous condition of the trail. It is further alleged that the trail collapsed, or otherwise caused Claimant to fall to the base of a cliff below the trail, as a result of which Claimant sustained serious and permanent injury.

The extensive record in this case reveals that on July 10,1972, Claimant drove to the park with Dennis Tagrin, Etty Tanenbaum, Lawrence Tagrin and her daughter, Judith Perlman. The party entered the park through an automobile entrance, parked in a designated parking area, and began walking southward on a trail which rose gently up a hill.

At the top of the hill the party headed eastward along the Razorback Trail. Lower ground was to the north of the party and a series of small trails, referred to as “finger trails” led northward from the Razorback Trail.

The party continued along the Razorback Trail in an easterly direction. The series of smaller, intersecting paths which ran in a northerly direction lead to a lower trail. Relow that lower trail there was foliage. Elaine Perlman testified that because of the dense foliage to the north, it was not possible to see that there was a drop-off below the lower trail. Respondent introduced evidence that the drop-off from the lower trail was visible.

The party proceeded from the main trail along one of the intersecting paths to the lower trail. The lower trail was two and one-half to three feet wide. There was no foliage on the trail itself. When the party reached the lower trail, the higher ground was to its right, with heavy foliage to its left, as they again proceeded eastward.

As Elaine Perlman walked along the lower trail, it suddenly crumbled under her feet. Claimant slid to the ground below, a distance of approximately 30 to 40 feet.

Charles A. Rallard was the head ranger at the park on the date of the accident. He was responsible for the maintenance and care of all trails. He testified that on July 10, 1972, there was no sign at the automobile entrance to the park which advised visitors to stop at the ranger station, and no sign indicating that maps of the park were available at the station. There were also no signs in the vicinity of the station advising that there were dangerous areas in the park.

Maps were available at the ranger station, and the path from which Elaine Perlman fell was not designated as an “official trail” on these maps. Ballard said that “official trails” in the park were five feet wide, although they occasionally narrowed to three feet. He said there were other pathways used by hikers in the park which were generally under three feet in width. He said these were not considered “official trails” but there were no signs erected and no literature available which instructed hikers to stay on “official trails.”

There was no maintenance provided to trails which were not considered “official trails” and no inspection was made of any but the “official trails.”

The only sign in the park indicating the existence of a dangerous area was a sign reading “Trail Closed” which was located at the eastern end of the Razorback Trail, where it intersected a pathway which ran to the north. The sign was 500 to 800 feet east of the point where Elaine Perlman and her party entered the Razorback Trail.

Ballard said that as many as 20 secondary trails, or “pathways” ran off the Razorback Trail. He said that the “Trail Closed” sign was not maintained by his staff, and he did not know who erected it.

Both Ballard and the assistant ranger, David Stevens, testified that they never saw people walking on the path; never knew of anyone falling from the path; that in their years at the park they had no knowledge of any defect in the path in question. Other testimony established that the lower trail, from which Claimant fell, was frequented by visitors to the park. Elaine Perlman sustained multiple and serious injuries as a result of the fall. She was taken from the park to Dixon Hospital, where exploratory surgery was performed. She was thereafter transferred to Passavant Hospital in Chicago, where she underwent surgery several times.

Evidence was introduced that as a result of her injuries, and medicines and treatment given her, her kidney ceased to function shortly after the accident. As a result Elaine Perlman has received dialysis since shortly after the incident, and has been unable to work or maintain her household.

The State of Illinois is not an insurer and before the Respondent can be liable for Claimant’s injury it must be shown by the preponderance or the greater weight of evidence that a dangerous and defective condition existed on the path and that the Respondent knew or should have known of said defective and dangerous condition. There is nothing in the evidence or record which would give a reasonably prudent person cause to believe that the ledge in question might give way or subside. The Court feels that before the State can be liable for an action the State must have actual or constructive notice of the dangerous condition. Finn v. State of Illinois, 24 Ill. Ct. Cl. 177; Stedman v. State of Illinois, 22 Ill. Ct. Cl. 446; Kamin v. State of Illinois, 21 Ill. Ct. Cl. 467; Weygandt v. State of Illinois, 22 Ill. Ct. Cl. 478.

Claimants assert that the facts of this case are identical to those in Hansen v. State, 24 Ill. Ct. Cl. 103, where an award was made after a hiker had fallen from a path in an Illinois State Park. However, we find that there are important differences between Hansen and the instant case. In Hansen, the Claimant was on an established trail. In the case at bar, Claimant climbed down from the Razorback Trail in rough, broken ground, to the territory below.

In Hansen, the Court did not find the State negligent in failing to warn of the possibility that the trail might crumble under Claimant’s feet. Rather, the Court held that the State failed to post a sign warning that the trail from which Hansen fell adjoined a deep gorge. The gorge in that case was not visible from the trail. Here, Claimant must have known that she was on a trail which adjoined a gorge, as the foliage was not so thick that she could not see the valley below as she walked along the Razorback Trail.

Here, the danger must have been obvious to Claimant, as opposed to the situation in Hansen where the gorge was hidden from the trail.

Further, we find that the Claimant was not in the exercise of due care for her own safety and well being. It appears that the trail from which she fell was not a trail for visitors, but rather, was an animal trail, and we find that the Claimant assumed the risk of the trail when she voluntarily left Razorback Trail for the lower trail. See, Kamin v. State, 21 Ill. Ct. Cl. 467, where this Court said:

“We hold that Claimant, in hiking along this rough nature path for recreation, assumed the risks inherent in the sport of hiking as a whole, and those risks that were obvious to her, including the lack of guardrails, and the proximity of the canyon to the trail.”

For the foregoing reasons, this claim is hereby denied.


text:
    (No. 73-CC-0368
    Ida M. Rivers, Individually and as Administrator of the Estate of Ruth Dianna Rivers, Deceased, and on behalf of Roy David Rivers, a minor, and Elizabeth Louise Rivers, a minor, Claimants, v. The State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed July 31, 1979.

    William Stanley White, for Claimants.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimants filed a claim for $25,000.00 against the State for the wrongful death of Ruth Dianna Rivers. Jurisdiction of this wrongful death case for all Claimants is vested with this Court pursuant to section 8(d) of The Court of Claims Act. Ill. Rev. Stat. 1971, ch. 37, par. 439.8(d).

The Claimants in this case are mother, minor brother, and minor sister of Ruth Dianna Rivers, deceased. On February 11,1971, the Circuit Court of Sangamon County, Illinois, in Case No. 71-J-18 entered an order finding the decedent, Ruth Dianna Rivers, to be a minor child in need of supervision, and by the same order entered in that case, declared the minor child to be a ward of the Court and appointed the Illinois Department of Children and Family Services as guardian of Ruth Dianna Rivers. The Illinois Department of Children and Family Services in due course placed the said minor with a licensed foster home in Taylorville, being the home of Wilmer Brookens and his family.

On May 17, 1971, the child disappeared and was later found dead on or about July 21, 1971. The cause of decedent’s death is unknown.

Claimants argue two theories of liability. First, that the State was guilty of specific negligence in failing to keep a proper watch and protection over the minor child in light of the child’s history of running away. Second, that the doctrine of res ipsa loquitur applies due to the fact that the State had exclusive control and management of the minor child, and that the child’s unexplained death occurred after an incident of running away.

Respondent maintains that the degree of supervision exercised with respect to the minor child was adequate, and that the State did everything in its power to provide Dianna Rivers with the “kind of family environment that was so tragically lacking in the home provided by her own mother.”

Claimants allege that Dianna only saw her caseworker six times during the approximate three and one-half months stay at the Brookens’ home, although there were other contacts between the foster parents and the caseworker regarding Dianna’s welfare. Claimants do not define the kind or extent of additional supervision which Claimants argue could have prevented this tragic episode. Claimants infer in their argument that perhaps Dianna should have been placed in a closed institution. There is no proof in the record that upon currently prevailing standards, Dianna’s case called for such a drastic remedy, notwithstanding the information possessed by the Illinois Department of Children and Family Services with respect to Dianna’s propensity to run away. In effect, Claimants ask this Court to accept the proposition that the care and supervision that was given was not enough but Claimants are unwilling to state what principles, guidelines or standards in the care and control of Dianna Rivers were violated by the action of the State.

Claimants rely on Kent, et al. v. State of Illinois, (1963), 24 Ill. Ct. Cl. 321, and Chifton, et al. v. State of Illinois (1963), 24 Ill. Ct. Cl. 404 for the proposition that the State was negligent in the placement of the decedent.

In Kent, supra, an inmate classified as “insane” escaped confinement at the Galesburg State Research Hospital and took an automobile belonging to Claimants, thereafter totally destroying the car in an accident. In Kent the State was found to be negligent where there were only two guards enforcing institutional security duty over an area of 159 acres, constituting the hospital property. Further, the patient had evidenced in the past the desire to go home to his mother, and the authorities were well aware of this desire. It was further shown that about 45 inmates under confinement left the hospital each year without permission.

In Clifton, supra, Claimant’s decedent was killed while institutionalized at Jacksonville State Hospital by another inmate. The evidence showed that the authorities knew of the assailant’s history of violence and found the State liable in damages to the decedent’s heirs.

Neither the Kent nor Clifton cases, supra, are persuasive in the case at bar. The principles announced in each of those cases apply peculiarly to situations in which the State has undertaken the institutional confinement of dangerous persons who have demonstrated that they represent a threat to others if left unconfined. Such is not the case at bar. The principles and standards of care, with respect to the State’s responsibility in dealing with dangerous personalities are historically more clear so that the Court is in a better position to judge whether or not there has been a breach of those principles which would impose liability upon Respondent. In the present case there is no such clarity of the standards of care which should be met by the State in caring for dependent, neglected or delinquent children in foster homes. Clearly, such children are not normally placed in confinement until they have shown themselves to be of a class such as the criminal and deranged persons who must be confined for the protection of others. There is no evidence in the record to indicate Dianna Rivers was such an individual, and that confinement would have been in the best interest of the public or of Dianna Rivers. The Claimants have not proved that the State was negligent.

Claimants also maintain the doctrine of res ipsa loquitur should be applied by this Court in the present case. In support of this theory, Claimants cite Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 247 N.E.2d 877. In Drewick a pedestrian had been injured by a window frame that had, without explanation, dropped onto the pedestrian from a building near where the pedestrian was walking. The Illinois Supreme Court stated that the function of the theory of res ipsa loquitur is to create an inference of negligence from otherwise inexplicable facts. Two conditions must be established for the doctrine to apply. First, the accident must be the kind which does not ordinarily occur without someone’s negligence and second, the instrumentality which causes the injury must have been within the management or control of the defendant. These principles are not met in the case at bar. The “instrumentality” causing damage in the present case is completely unknown. The death of Dianna Rivers could as well have occurred as a result of a felonious act of a criminal as from the voluntary acts of Dianna Rivers. Under the circumstances in this record it is possible that Dianna Rivers’ death came about as the result of criminal acts as any other hypothesis that may be raised.

There is no showing in the record in this case that the State or its agents were negligent in the care and protection of Dianna Rivers. No standards of reasonableness or principles of conduct in exercising the obligation of the State toward Dianna Rivers were shown to have been breached, therefore there can be no finding of negligence against the State. The doctrine of res ipsa loquitur does not apply because it is impossible to judge the source or cause of death of Dianna Rivers. The Claimants have not met their burden of proving negligence by the State by a preponderance of the evidence. While the death of Dianna Rivers was tragic the State was not shown to have been responsible for her death. Therefore, the claim must be denied.


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    (No. 73-CC-0406
    Margaret M. Klepper, Administrator of the Estate of Charles E. Klepper, et al., Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 23, 1979.

    Me Connell, Kennedy, Quinn & Johnston, Gomien, Masching & Neville, Ltd., and Costigan & Wollrab, all for Claimant.
    Cadigan & Gillespie (Patrick J. Cadigan, of counsel), for Respondent.
   Holderman, J.

This is a claim brought by Margaret M. Klepper, administrator of the estate of Charles E. Klepper, deceased, for the alleged wrongful death of the said Charles E. Klepper, and by Willie L. Anderson, d/b/a Willie L. Anderson Trucking Company, for the loss of a tractor-trailer. By order of this Court entered June 11, 1976, the Reliance Insurance Company, workmen’s compensation insurance carrier for Willie L. Anderson Trucking Company, was allowed to intervene, having paid $29,543.00 in workmen’s compensation benefits to Margaret M. Klepper, as widow of Charles E. Klepper.

On May 16, 1972, at about 1:30 p.m., the deceased, Charles E. Klepper, was driving a tractor-trailer unit owned by Willie L. Anderson Trucking Company, in a northerly direction on Route 66, approximately 1.4 miles south of Lexington, Illinois. The right front (passenger side) of the tractor-trailer unit struck a State of Illinois Department of Transportation truck, causing Mr. Klepper to be thrown out of the tractor onto a grass median strip. Mr. Klepper died as a result of his injuries.

Evidence in this case shows that the accident occurred on a level strip of road, with dry pavement and evidently very little traffic.

The only eyewitness to the accident besides the driver of the State truck was one Kermit Hopkins, a truck driver who was approaching from the north. His deposition was taken and introduced by stipulation. He testified that he was driving south in the left hand lane of Route 66 and that, before the accident, he saw State of Illinois trucks northbound painting stripes on the highway. He testified he thought there were three trucks involved.

According to his testimony, the second truck, the one immediately ahead of the one involved in the accident, was painting lines on the highway. He testified that the first two trucks were travelling in the right hand lane, which was the easternmost northbound lane, and the second truck was doing the striping. The third truck, he stated, was a supply truck and was in the left lane, or more in the left lane than the right lane. He testified that the supply truck, or paint truck as he referred to it, did not have any signs on it, either front or back. He also testified that as the semi approached, the supply truck swerved back over to the right lane, the semi then swerved and came over to the left lane and hit the back end of the supply truck, after which the State truck went into a skid. The semi then went into a jack, as he recalled it, to the right hand side, and when it came back into the left lane, the driver was thrown out, resulting in the death of the driver of the truck.

The witness testified he was several hundred feet north of the scene of the accident when it occurred.

Attached to the witness’ deposition was a sketch made by him showing clearly his account of the accident and showing the path of the State truck from the left hand lane directly into the path of decedent’s oncoming semi-trailer.

This witness testified he did not see any signs or flashing lights nor did he see any signal of any kind or character.

The supply truck, after it was struck in the rear, left the highway on the right, or east, side of the road and came to rest against the railroad embankment. The damage to the semi was primarily on the right hand, or passenger’s side, of the cab.

The testimony of this witness is in sharp contrast to the testimony of other witnesses and the physical evidence at the scene of the accident. This witness was the only one testifying to the fact that there were three State trucks present.

Richard D. Brantley, driver of the supply truck, testified there were two trucks, and not three, present. He testified he was approximately 1,500 feet behind the striping truck in the right hand lane and on the back of his truck was a large sign, facing northbound traffic, that read: “Pass on the Left” and “Slow Moving Vehicle Ahead.”

There is evidence that some distance back of both trucks, approximately two miles south of where the accident occurred, there was a sign warning motorists of the painting crew ahead. The evidence shows that other witnesses who were on the scene shortly after the accident occurred testified that the flashing lights on the back of the supply truck were in operation and that there was a warning sign on the back of the truck, which was a sign six feet six inches high in the center part with a bottom panel three feet six inches high and a top panel two feet high and nearly six feet wide. This sign, as shown by a picture introduced in evidence, was knocked off the truck and lay on the ground where the truck finally stopped.

Evidence clearly indicates there was not any other traffic on the highway in this vicinity at the time of the accident and the State truck was struck in the rear with considerable force. This indicates the truck driven by the deceased was travelling at a rather high rate of speed despite the two-mile warning sign, despite the flashing lights, and despite the warning sign on the back of the truck.

Claimant’s case rests entirely upon the theory that the State truck hit by Claimant was pulling from the right lane into the left lane.

An examination of the record indicates, as shown by Respondent’s Exhibit 1, that more damage was done to the right hand, or passenger’s side, of the semi than was done to the driver’s side. Respondent’s Exhibit 2 shows the size of the sign and the lights on the vehicle at the time of the accident. Respondent’s Exhibit 5 is a picture showing the scene of the accident taken from the north. This shows dark spots on the pavement, evidently from spilled paint that was on the supply truck. It is to be noted that these dark spots are primarily in the right lane with very little, if any, extending over into the left lane.

Respondent’s Exhibit 6 shows the State truck against the railroad embankment with the right side of the truck knocked to the right and the sign laying on the ground behind it.

Respondent’s Exhibit 6 shows the State truck against the railroad embankment with the right side of the truck knocked to the right and the sign laying on the ground behind it.

Respondent’s Exhibit 8 was a picture taken from the rear of the State truck showing an indentation on the left rear end of the State truck, the sign on the ground behind the truck, and the right side of the rear of the truck inclining to the right. Respondent’s Exhibit 10 is a view to the north and northwest showing the skid marks beginning on the right hand side of the pavement and swerving to the left. This picture also clearly demonstrates that most of the debris was primarily along the right side of the pavement and a considerable portion on the right shoulder.

Respondent’s Exhibit 11 is another picture facing north and northeast showing the skid marks and debris primarily on the right hand side of the road.

Respondent’s Exhibit 12 is a picture looking to the northeast showing a skid mark on the right hand side swerving to the left and most of the debris on the right hand side of the road.

Respondent’s Exhibit 13 is a view to the northeast and shows the State truck involved in the accident directly east of the debris which is on the right hand side of the road and the skid marks coming from the right hand side of the road onto the left.

Respondent’s Exhibit 14 is a view looking south (into the northbound lane) and clearly emphasizes this was on a long, level, straight highway with nothing to obstruct the view of the users of the highway.

Respondent’s Exhibit 15 is a picture looking north on the highway showing a closeup of the skid marks and the debris on the pavement. This picture again emphasizes the fact that the debris is primarily on the right side of the road and the State truck is directly east of said debris.

These exhibits clearly illustrate the fact that this was a long, level, straight highway with the pavement dry at the time of the accident, and that the accident, according to the debris, was on the right hand side of the road. The skid marks clearly indicate that Claimant’s truck was evidently travelling at a high rate of speed and, for some reason, did not observe the State truck until it was too late to avoid the accident which occurred when the semi swung to the left and skidded for approximately 140 feet before the collision occurred.

There is no explanation of any kind or character in the record as to why the State truck, in broad daylight, with a warning sign two miles behind the scene of the accident, and a warning sign and flashing lights on the truck itself, was not observed by the deceased.

We therefore have a situation where a State truck with a large sign placed on the back along with flashing lights, and warning signs placed some two miles from the scene to warn travelers, was struck by a semi at a high rate of speed from the rear.

This Court has repeatedly held that before recovery can be made in cases of this kind, Claimant must show the State was negligent, that Claimant was not guilty of contributory negligence, and the proximate cause of the accident was the negligence of the State. See 30 111. Ct. Cl., 32, 565.

It is the opinion of this Court that the State was free from contributory negligence and that the negligence of the deceased was the proximate cause of the accident.

Award denied.


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    (No. 74-CC-0005
    Joan M. McGee, Claimant, v. The State of Illinois and the Department of Conservation of the State of Illinois, Respondents.

      Opinion filed April 14, 1980.

    Blumenthal and Schwartz, both for Claimant.
    William J. Scott, Attorney General (Saul R. Wexler, of counsel), Assistant Attorney General, for Respondents.
   Holderman, J.

Claimant filed a claim for injuries allegedly sustained at a pier in the Mississippi Palasides State Park, which admittedly is owned and operated by the State of Illinois. The pier is on the Lazy River, which feeds into the Mississippi River.

The injury occurred when the Claimant, after getting out of a boat which was secured to the pier in question, caught her foot in a two and five-eighth-inch wide gap in the pier. As a result of her foot being caught in the gap, she suffered a fracture of the tibia and fibula which resulted in severe and permanent damage which, at the time of the trial, was unbeatable. Her left leg is now three-sixteenths of an inch shorter than the right leg and the left ankle continues to be painful and swollen. There is a 15-degree residual contracture of the left heel cord compared to the right; a 25-percent limitation of motion of the left foot muscles, and considerable swelling.

The evidence is clear that this wide gap in the pier was most unusual and testimony introduced on behalf of Claimant indicates that such a gap in the floor of the pier was highly dangerous. This condition had existed since the pier was constructed so the State had actual knowledge of the condition that existed.

Medical bills were in the amount of approximately $1,100.00, part of which were paid by Claimant’s insurance.

The evidence is clear that Claimant was not guilty of contributory negligence in any manner, shape or form. It is also clear that the State, having constructed the dock where the accident occurred, was fully aware of the dangerous situation which caused the injury complained of, and that construction of the dock and the manner in which it was built was the major cause of the injury.

At the time the accident occurred, the State’s limitation of liability was $25,000.00. Claimant has requested that the limitation which now exists be applied rather than the limitation at the time of the accident. It is the Court’s opinion that the statutory limitation that existed at the time of the accident is the proper amount that can be paid.

Due to the severity of the accident, the Court finds that the $25,000.00 limitation should be awarded to claimant.

Claimant is hereby awarded the amount of $25,000.00.


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    (No. 74-CC-0565
    Wilbur McDonald, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 27, 1980.

    Frederick F. Cohen, for Claimant.
    William J. Scott, Attorney General (William Karaganis, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant, Wilbur McDonald, filed suit pursuant to Ill. Rev. Stat., ch. 37, par. 439.8, claiming $15,000.00 for unjust imprisonment. That statute establishes a maximum of $15,000.00 for unjust imprisonment of up to five years.

Claimant was born on May 3, 1939, is single, and was never convicted of a crime other than the one from which this claim arises. Claimant was arrested by Chicago police officers on July 11, 1970, and was thereafter tried and convicted on August 17,1971. The offense for which he was indicted, tried and convicted was murder.

In August of 1973, one Lester Harrison confessed to the murder of which Claimant was convicted. On September 25, 1973, the State’s Attorney of Cook County, after full evaluation of the facts in said cause, granted Claimant a new trial. The State then nolle prossed the charges against Claimant.

Claimant was imprisoned from August 17, 1971, to August 15, 1973. He was granted a pardon by the governor on the basis of innocence and was released on August 15,1973, after remaining in custody continuously from July 11, 1970 until August 15, 1973, a total of three years and 35 days.

The record indicates that before Claimant was incarcerated, he was steadily employed and that as soon as he was released from the penitentiary, he went back to the same employment. The record also shows that on the basis of his income tax returns, his loss of earnings exceeded the maximum provided by the Illinois Statutes.

Volume 29, Ill. Ct. Cl. 371, states that before recovery can be made in cases such as the one now before the Court, Claimant must prove by a preponderance of the evidence (1) that the time served in prison was unjust; (2) that the act for which he was wrongfully imprisoned was not committed by him; and (3) the amount of damages to which he is entitled.

It is the Court’s opinion that the confession of the individual who actually committed the murder, the pardon by the governor, and the proof as to the reduction of Claimant’s earnings satisfy the Court’s requirements.

Award is hereby entered in favor of Claimant in the amount of $15,000.00.


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    (No. 74-CC-0667
    Arnold Ufer, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 31, 1979.

    Schwarz & Self (John S. Self, of counsel), for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel) for Respondent.
   POCH, J.

Claimant seeks to recover for personal injuries sustained by him on April 25,1973, when a vehicle operated by Claimant in a westerly direction along Highway 108 in Breen County, Illinois, collided with large piles of sand located in the westbound lane at or near an area where sandbagging operations were taking place due to emergency flood conditions. Claimant and the State have stipulated that Claimant’s damages are in the sum of $2,733.95.

Before Claimant can recover he must prove (1) Respondent’s negligence, (2) Claimant’s freedom from contributory negligence, and (3) that Respondent’s negligence was the proximate cause of the injuries suffered by Claimant.

Claimant testified that at approximately 8:30 p.m. April 25, 1973, he was operating his vehicle in a westerly direction along and upon Highway 108, extending west from Eldred, Illinois. It was a very dark night. Approximately one mile west of Eldred, Illinois, Claimant came upon a pile of sand blocking the westbound lane of Highway 108. Claimant was unable to stop and ran into the sand, totally destroying his automobile and causing personal injuries to Claimant’s mouth and head. Claimant had his headlights on at the time of the accident. Claimant testified that there were no lights, barricades or warnings near the pile of sand and that he had no notice of any sand being piled on the highway.

The parties stipulated that a report of Sheriff Langley of Breen County could be admitted and considered by the Court in this cause. Langley’s report contains the following statement:

“No notification on the highway that the sand was piled on the highway. The State of Illinois was in charge of piling the sand on the highway."

The duty of the State is to keep its highways reasonably safe for ordinary travel by persons using due care and caution for their own safety. Sommer v. State of Illinois (1952), 21 Ill. Ct. Cl. 259. This Court has also held that if the State has knowledge, actual or constructive, of a dangerous condition on its highways, and fails to warn the public of the condition, with resultant injury, the State is responsible and must pay damages for its negligence. Bovey v. State of Illinois (1955), 22 Ill. Ct. Cl. 95. A pile of sand completely blocking the lane of traffic, being several tons in amount and approximately four and one-half feet in height, certainly constitutes a dangerous hazard on a State highway.

Claimant argues that the State was negligent in failing to adequately warn users of the highway of a known dangerous condition. A preponderance of the evidence demonstrates the accuracy of Claimant’s position. It is the opinion of the Court that even though a barricade may have existed on Route 108 at the west edge of Eldred, Illinois, this was not sufficient warning to the users of Route 108 of the extremely dangerous condition then existent. It is important to note here that although a barricade was set up, the road was open to local area traffic such as residents and workers.

Claimant’s uncontradicted testimony with respect to his operation of the motor vehicle on the night of the accident proves by a preponderance of the evidence that Claimant was free from contributory negligence. There is no question that the negligence of Respondent proximately caused Claimant’s injuries.

Accordingly, an award is entered in favor of the Claimant, Arnold Ufer, in the sum of the stipulated damages, being $2,733.95.


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    (No. 74-CC-0715
    American Management and Maintenance Corp, as Agent for Beverly Bank, as Trustee under Trust No. 16338-1633; First Bank of Oak Park as Trustee under Trust Agreement dated May 2, 1968, and known as Trust No. 8377; Stephen M. Mullins, Carol R. Mullins and David R. McNally d/b/a West Park Realty, Claimants, v. The State of Illinois by the Department of General Services for the use of the Department of Mental Health Drug Abuse Program, Respondent.

      Opinion filed March 21, 1980.

    Schumacker, Jones, Vallely, Kelly & Olson, for Claimants.

      William J. Scott, Attorney General (Richard J. Grossman, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim for damages alleged to have been inflicted by the Respondent on real estate and personal property leased by Respondent from Claimants.

The real estate involved in this action is 2127 North Kenmore, Chicago, Illinois. During the time of the lease period, the legal title to the property was held by the Beverly Bank, as Trustee under Trust No. 16338-1633. The beneficiaries of this trust were Claimants, Stephen M. Mullins, Carol R. Mullins and David R. McNally, who remained beneficiaries when the property was conveyed to the First Bank of Oak Park as Trustee under Trust No. 8377.

Claimant, American Management and Maintenance Corp., was the agent of the owners of the property.

The actual owners of this property are Stephen M. Mullins, Carol R. Mullins and David R. McNally.

The uncontested and unrebutted evidence indicated that Claimants purchased the building in question, which was a three flat building, including a basement and garage, on May 15,1970, from Harvey Shein. At the time of purchase, it was fully rented.

In 1969, the previous owner, Harvey Shein, testified that he completely and extensively renovated the premises. He testified in detail as to the work done which included stripping down the plaster on the walls, re-plastering, installing dry wall, installing new parquet hardwood floors, six fireplaces, new plumbing risers, new kitchen cabinets, new bathroom vanities, new bathroom plumbing fixtures, redecorating, carpeting, new closets, new windows and storm windows, new forced air heating system, and electrical upgrading.

Within one year, the newly renovated premises was sold to the claimants.

From September 16, 1971, through June 1973, the entire property and personal property contained therein was leased to the respondent for use by them as residences for persons recovering from or participating in a drug abuse program. The written lease, if any there was for this period, was not produced by either party. The leasehold interest was extended by written lease, dated October 4, 1973, effective July 1, 1973, extending the lease to September 30,1973.

In view of the fact that the possession of the premises was surrendered back to the lessor on September 20, 1973, there was no explanation offered for the fact that the lease is dated after the date possession was yielded up. However, Respondent stipulated to the admission into evidence of the lease and in its argument and brief does not contest the validity, applicability or enforceability of the lease.

Harvey Shein testified that there was no wear and tear on the premises at the time respondent took possession of them. Respondent’s witness. F. Schumacher, testified to the excellent condition of the building at the time of Respondent’s taking possession.

Claimants’ evidence was that in March 1973 the premises began to degenerate into disrepair, becoming even worse in the period of July through September 1973. When the premises were vacated by respondent, the premises were left open and unsecured. The evidence was uncontradicted and overwhelming that there were holes in walls, a sink that was ripped out of the wall, broken windows, doors with holes in them, broken mirrors, torn carpeting, vandalized refrigerator, popping of parquet floors, storm windows and screens with holes in them, trash abounded, garage door broken, railing and rear stairs were off, counter and sink broken, closet doors off track, doors ripped off hinges and removed, door jambs ripped off, broken and irreparable vending machines and washers and dryers, missing light fixtures, walls broken, defaced, or covered with graffiti, wall on first floor was down, plumbing fixtures, doors and mirrors broken throughout, floors buckled, shelves broken, and tiles off floors.

Claimants employed three different parties to make the necessary repairs. These repairs were started in November 1973 and the entire repair job was completed in May 1976. Contractors worked periodically due to the fact that Claimants were evidently unable to raise sufficient funds at any one time to complete the repairs before the 1976 date.

Claimants’ testimony regarding the necessity of repair and the amounts expended for repair was voluminous, totally creditable and corroborated for the most part by documentary evidence. The Claimants, in the opinion of this Court, proved by overwhelming evidence that there was required the sum of $29,337.07 for repairs and restoration.

The evidence was also overwhelming that the damages were caused by the negligence and malicious acts of the residents of the building and the negligent acts of Respondent’s agents and all caused after numerous oral notices and complaints made by the Claimants’ agents.

That Respondent breached the lease by failure to yield the premises back in as good condition as at the date of lessee taking possession thereof was not seriously contested by any evidence brought by Respondent.

Claimants admitted that, at various times, Respondent’s agents complained of inadequacies or necessity of repairs to have been made by lessor. It appeared that most of the complaints were of items whose repair was necessitated by acts or neglects of Respondent’s residents and agents.

Respondent has advanced the argument that some of the repairs and restoration of the real estate and items of personal property resulted in betterments of the premises, that is, that part of the expenses incurred resulted in a better condition of the real estate and personal property and that Respondent should be given credit for such better condition. However, Respondent offered no evidence to indicate such betterments nor the value thereof. In the opinion of this Court, such betterments, if any, are so insignificant in relation to the whole of the damage as to not be worthy of consideration except for the installation of central air conditioning instead of replacement of six window air conditioners, an increase in cost of $1,600.00 which should be deducted from the total repair costs.

Claimant also makes claim for lost rentals during the period of repair and restoration and for lost rentals during a period of time that Claimants did not have sufficient funds to finance the repairs and restoration.

The evidence was that the repair and restoration took a period of time over two years and eight months because of lack of funds. Claimants proved overwhelmingly that they did not have nor could they borrow sufficient funds to hire a contractor and proceed to do the necessary work expeditiously.

Claimants, in their brief, cite the case of Behrens v. W. S. Bills & Sons (1972), 5 Ill. App. 3d 567, 283 N.E.2d 1, as standing for the proposition that a Claimant is required to mitigate damages on the basis of their financial ability to do so. In the Behrens case, the Court allowed, as an element of damages for a collapsed building, damages sustained by reason of attempts made by the plaintiffs to reopen their business but their inability to do so due to financial inability. Claimants argue that this case is applicable to the instant case and the Respondent is therefore required to pay damages for all of the time that the building in the instant case was rendered unrentable, a total for at least some of the apartments of two years and eight months.

While the Behrens case is accurately cited and is somewhat applicable to the instant case, Claimants ignore the language in that case which required action by the plaintiffs which was reasonable under the circumstances.

In the opinion of this Court, Claimants did not act reasonably with regard to the timing of the repairs. Doing the necessary repair work was only one of the alternatives of Claimants. They could have attempted to sell the property and their claim would have been the difference between the market price of the property and the actual sales price. It is unreasonable, in this Court’s opinion, to require Respondent to pay for lost rentals for close to three years. That argument, carried to its extreme, could make Respondent the insurer of lost rentals in perpetuity. This contention, that of requiring respondent to insure Claimants for lost rentals on an open end basis is patently unreasonable and should be rejected.

Based on the evidence, this Court feels that a period of six months would have been sufficient to gather the necessary finances, make the necessary contracts and perform all of the necessary repairs and restorations. By the testimony of Claimants’ witnesses, the reasonable value of lost rents for all three apartments was $1,000.00 per month. This Court recommends awarding a total of $6,000.00 to Claimants for lost rentals.

Respondent argues forcefully in its brief that, in view of the fact that Claimants knew during the tenancy that damages were being inflicted on the property, that Claimants should have mitigated damages by instituting a suit for eviction of Respondent. Claimants, in rebuttal, argue that knowledge of the severity of the damages did not come to their attention until it was so close to the end of the lease period that it would have been futile to institute a proceeding for eviction. This Court agrees that the evidence indicated that Claimants began to see great damage starting in July of 1973 on a tenancy due to terminate September 30, 1973, and that a proceeding in forcible entry and detainer would have taken at least 30 days to obtain eviction.

However, it is not necessary for the Court to make findings on the basis of these factual contentions. Neither the Claimants nor Respondent, in making these arguments, considered that the breach of the lease actually occurred in September 1973. The lease provided that respondent “yield the demised premises back to the lessor in as good condition as at the date of lessees taking possession thereof...” Thus, it was not the destruction of the premises but rather the failure to restore the premises that constituted the breach. The breach of the lease took place at the time of the yielding of possession. A claim therefore of a requirement to institute an action for forcible entry and detainer prior to the breach of lease is not at all material on the question of mitigation of damages.

This Court is of the opinion that an award of $29,337.07, less $1,600.00 for the resulting improved air conditioning system, plus $6,000.00 for lost rentals, or a total award of $33,737.07 should be awarded to Claimants, Stephen M. Mullins, Carol R. Mullins and David R. McNally.

An award in favor of Claimants is hereby made in the amount of $33,737.07.


text:
    (No. 74—CC—0740
    Javier Curiel and State Farm Fire and Casualty Company, Inc., Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 3, 1979.

    Westervelt, Johnson, Nicoll & Keller (Daniel L. Johns, of counsel), for Claimants.
    William; J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This is a claim for compensation pursuant to the provisions of Ill. Rev. Stat. 1973, Ch. 23, par. 4041 for damages caused by an escaped inmate of State controlled institution, and the Court of Claims Act, Ill. Rev. Stat. 1973, ch. 37, par. 439.8(a). This action arises out of an incident which occurred on July 23, 1973.

On that date Arrozo Rafael escaped from the Hanna City Boy’s School, a State run institution. He abandoned a motor vehicle in front of the home of the Claimant. On the same date Claimant’s automobile was stolen from his home along with items of jewelry. Later that day Rafael was apprehended driving the Claimant’s automobile. The Claimant alleges that the State was negligent in allowing Raphael to escape and should be liable for his actions.

According to facts brought forth at the hearing, Arrozo Raphael escaped on July 22, 1973, while on an off-grounds activity. He was apprehended by Fulton County Police and returned the same evening. While absent, Arrozo Rafael stole a motor vehicle. Subsequent to this escape attempt, he was placed on a dormitory floor protected by security screens, a youth supervisor and other security measures. The fact that he was allowed to leave the dormitory, unattended, at 4 a.m. on July 23, 1973, to go to the Control Center for medication does not prove the Claimants’ contention that the State was negligent in failing to properly supervise Arrozo Raphael. The security procedures were adequate under the circumstances and no evidence of negligence.

The Claimant also contends that Mr. Raphael stole the Claimant’s jewelry reported missing on July 23,1973. Because Raphael was apprehended that very same day and the jewelry was never found on him or in his car, the contention is merely a conjecture and not substantiated by the facts. No evidence was ever adduced at the hearing connecting Raphael with the missing jewelry of claimant.

It is, therefore, ordered that the claim of Mr. Javier Curiel be denied.


text:
    (No. 74—CC—0858
    Hugh McKee, III, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 18, 1978

      Rehearing denied November 7,1975.

      Motion to vacate denied January 16,1980.

    Peter A. Loutos, for Claimant.
    William A. Scott, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

The Claimant, Hugh McKee, III, seeks recovery of $15,000 in damages for personal injuries and damage to his personal property when the motorcycle upon which he was riding struck a hole in the highway on Cicero Avenue near the Midlothian Turnpike located in the Village of Crestwood, Illinois.

At a hearing before a Commissioner of this Court, the Claimant testified that at approximately 8:00 p.m. on June 13, 1973, he was driving his motorcycle in a northerly direction upon Cicero Avenue which is a State highway. He was proceeding at 45 m.p.h. in an area where the posted speed limit was 45 m.p.h. As he approached the area in question, he noticed a dark patch on the highway in front of him. He was proceeding in the lane closest to the center line, and was on the left side of his lane. Because of oncoming traffic he was unable to swerve to avoid the dark patch on the highway. As he approached, he saw that the dark patch dipped down into a hole about two feet wide and ten inches deep. He tried to slow down but struck the depression in the roadway. The front end of the motorcycle snapped off from the impact and Claimant fell off the motorcycle and slid on his back and then on his hands and stomach, causing burns and abrasions of the left hand and left upper forearm and right upper forearm.

A State Trooper arrived at the scene and asked the Claimant if he was all right. The Claimant indicated he was not “in too bad shape.” Crestwood Police Department was notified and after an officer arrived at the scene took the Claimant to the Crestwood Police Station. The Claimant was taken back to the scene where he collected his personal belongings. He was then taken to St. Francis Hospital where he was treated in the emergency room. The Claimant stated that the accident caused him to incur the following losses or expenses:

St. Francis Hospital $ 81.60

Dr. Glenn W. Gutzett 20.00

Loss of Income for 16 Days 512.00

Property Damage to Motorcycle 489.25

$1,102.85

Claimant called Officer Carrol A. Ray of the Crest-wood Police Department. Officer Ray testified that on June 13,1973, he travelled that section of Cicero Avenue over ten times prior to the accident. He noticed a depressed area where the accident occurred which area got worse during the day but not sufficiently bad to convince him to report the situation to the State Highway Department. The area, according to the officer, was often under repair. There had been work done in that area of the highway almost yearly. About one year previous to the accident there had been a sewer line placed under the highway.

The officer further testified that at the time of the accident there were no barricades or warning signals of any kind warning of the danger of the depressed area.

The State called Joan Dwyer, Village Clerk for the Village of Crestwood, who laid the foundation for the introduction into evidence of a State of Illinois permit and plans dated May 4, 1972, that permitted the Village of Crestwood to install a sewer line under Cicero Avenue at the Midlothian Turnpike, and a contract between the Village and a contractor for the sewer pipe installation. The project was started in late summer of 1972 and completed within a year thereafter. She testified that the State is always patching the street in that area.

The State called, as an expert witness, Joseph J. Kostur, Jr., District Safety and Claims Manager for District One of the Department of Transportation. He testified that there is a difference between a depression in a highway caused by an improper augering process and a pothole.

According to Mr. Kostur, augering is a method of placing a concrete or steel casing under a pavement without disrupting the flow of traffic on the pavement, and then later a sewer pipe can be installed through the casing. If an augering process is done improperly, there may be a void created under the pavement which could cause a cave-in either at the time of the augering or some time later. A pothole requires thrée or four months to develop. In his opinion, the depression of the type which caused the accident to Claimant was the result of improper augering.

The State contends that it is not liable because there was no negligence on its part and further that the Claimant was contributorily negligent. It is well settled that the State is not an insurer against accidents that may occur by reason of the condition of a State highway. Bloom v. State (1957), 22 Ill. Ct. Cl. 582, 584.

However, the State does have the duty to exercise reasonable care in the maintenance and care of its highways so that dangerous conditions likely to injure persons lawfully on the highway shall not exist. Metzler v. State (1971), 27 Ill. Ct. Cl. 207, 209; Pacific Ins. Co. of New York v. State (1971), 27 Ill. Ct. Cl. 91, 94.

In order for a Claimant to recover damages arising out of a defect in the roadway, the defect must be substantial enough and it must exist for such a length of time that reasonable persons would conclude that immediate repairs should be made or in the alternative that warning signs be posted. Stege v. State (1971), 27 Ill. Ct. Cl. 399, 400. Thus in order to recover the Claimant must show that the State had actual or constructive notice of the defect that caused the injury. Weygandt v. State 22 Ill. Ct. Cl. 478, 485.

The testimony of Officer Ray did not establish notice on the part of the State. He traveled the road many times that day, prior to the accident, and apparently did not see anything that required a report to be made to the State.

However, the State’s witnesses did establish notice. The State continually, for years, had trouble with that stretch of roadway, requiring repeated repairs. And most important, it allowed an apparent improper augering under its highway by the contractor employed by the Village of Crestwood. The State, having the obligation of maintaining the highway, likewise had the obligation and duty to see to it that those tunneling under its highway, under State permit, performed their job in a way that would not create a dangerous condition on the State highway. The State should have known, by proper inspections during the course of the installation of the sewer, that the installation was done in a manner which might cause a sudden cave-in of the pavement.

As to constructive notice of highway defects each case must be decided on its own facts. Palecki v. State (1971), 27 Ill. Ct. Cl. 108, 110.

In the instant case, we find that the State had constructive notice of the dangerous condition on its highway and failed to remedy the defect or to warn motorists of its presence by posting warning signs.

This failure to properly repair and failure to properly warn motorists constitutes negligence on the part of the State.

The State next contends that Claimant was guilty of contributory negligence in that Claimant was wearing sunglasses at the time of the accident and this fact combined with his speed of 45 m.p.h., caused him to be unable to perceive the hole in the dark patch of the highway.

The facts, however, show that it was not yet dark at 8 p.m., when the accident occurred. The only evidence of the lighting conditions was the testimony of the Claimant who testified as follows:

“Q. Are there any street lights in that area?
A. No, it was just dusk. It wasn’t very dark.”

In view of the setting of the sun at or near that hour and the possibility that the sunset would interfere with driver vision, it cannot be held to be contributory negligence to wear sunglasses without a showing by the State that it was actually dark at the time of the accident.

The State further contends that the Claimant has failed to exhaust his legal remedies as provided by section 25 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.24 — 5) by failing to make a claim against the Village of Crestwood and its sewer contractor. However, information as to fact of possible liability of the Village of Crestwood and its contractor was within the knowledge of the State and not in the hands of the Claimant. There is nothing in the record to indicate that the State conveyed this information to the Claimant until the actual hearing of the case which was held more than two years after the accident, thus precluding Claimant from asserting such a claim against the Village and its contractor. The State’s contentions in this regard are without merit.

The State next contends that the wage loss was not adequately proven. In view of the fact that the State stipulated as to the admission into evidence of Claimant’s Exhibit #5 which was a letter by his employer asserting his lost wages of 16 days in the amount of $512.00, we find that the Claimant has proven this contention by a preponderance of the evidence.

The Claimant is entitled to an award of $2,000.00 for his personal injuries caused by the negligence of the State and an award of $489.25 for damage to his motorcycle.

Claimant is awarded the sum of $2,489.25.


text:
    (No. 75—CC—0002
    Edward Linneman, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 6, 1979

    Gordon F. De Hart, for Claimant.
    William J. Scott, Attorney General (Richard J. Grossman, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is an action brought pursuant to Ill. Rev. Stat., ch. 23, par. 4041, known as damages caused by escaped inmates of State controlled institutions, for loss of the contents of a truck stolen by escaped inmates.

Mark Lane, an inmate, had been confined to the Youth Center on April 2, 1974, for the crime of robbery. Selma Gerder, had been confined since April 3,1973, for shoplifting, criminal damage to property, bike theft and running away.

They were housed in McKinley Cottage, one of 15 at the Center.

On June 4,1974, the number of inmates at McKinley was between 40 and 50 and was so overcrowded that seven inmates were obliged to sleep on the floor. The security system consisted of two unarmed guards for the cottage, a locked exit door to the cottage with the keys in the possession of the guards inside, and an exterior nine foot fence. There were no electronic or other alarm systems other than a telephone which was used for periodic reporting.

At 10:20 p.m. Lane and Gerder overpowered the guards, obtained the key to the exit door from one of them, ripped out the phones and exited the building.

The escapees slept in a field that night. At about 6:30 a.m. on June 5, 1974, they entered Claimant’s premises and stole Claimant’s truck which was loaded for corn planting with bags of corn, insect killer, weed killer, and various sensors, tools and other material necessary for corn planting.

Approximately one and one-half hours after the theft, the inmates were apprehended by an alert officer of the Bloomingdale Police Department. The escapees were placed under arrest by the police and the truck was transported to Krolls’ Gas Station and Garage in Bloomingdale.

At the time of the arrest, the arresting officer noticed that there were sacks of corn on the truck and that the truck was well loaded. He saw no physical damage on the truck. On the same day Claimant received a telephone call from the Bloomingdale Police Department stating that they had his truck. Claimant had previously reported the truck stolen. Claimant went to Bloomingdale and observed the truck at Krolls’ Gas Station where he found that the tires on the left side had a big bruise and that the wheel was kinked. The other front wheel of the truck was also damaged and bulged. The truck headlight was damaged and a door rain gutter was torn off. The only contents of the truck were two bags which were broken and split with the contents spilling.

The first issue to be decided by the Court is whether the State was negligent in allowing the escape of the inmates which ultimately led to the theft of Claimant’s vehicle. McKinley Cottage, where the escaped inmates had been living, was overcrowded, and therefore it was foreseeable to the Respondent that the conditions might encourage an escape. The two unarmed guards with the exit door key were inside the cottage. The Respondent should have foreseen that 50 or more inmates could easily overpower two unarmed guards and obtain the exit key. Further, the lack of any alarm system allowed the escapees to exit the building and exit the premises without further interference from the authorities. There were no outside guards for security from the place of the cottage door to the institution fence enclosure.

It is our opinion that the lack of any alarm system, the overcrowded condition of the cottage, the fact that the guards on the inside had the exit key, all were factors which constituted negligence on the part of the authorities operating the Youth Center which allowed the inmates to escape. Kent v. State (1963), 24 Ill. Ct. Cl. 321.

The second issue to be decided, is whether the State is liable for a loss which occurred subsequent to the capture and arrest of the inmates.

The testimony of the police officer indicated that at the time of the arrest of the inmates, the truck was still loaded — reasonably full with sacks of corn. The officer noticed no defect in the condition of the truck.

This testimony by Officer Michael Joseph was substantiated by Sgt. Raney, both of the Bloomingdale Police Department. Their testimony was further substantiated by the testimony of Mark Lane, the escapee, who testified that during the time that he and the other inmate had possession of the truck they took nothing out of the truck.

It is, therefore, not subject to serious dispute that the loss of the contents of the truck occurred some time after the arrest of the escaped inmates and during the time that the truck was in the possession of the police department or during the time that the truck was in the possession of Kroils’ Garage.

Claimant contends that the negligence of the Respondent in allowing the escape was the proximate cause of the ultimate loss of the items on the truck, and that the intervention of some other force which directly resulted in the loss does not break the causal connection if the intervention was of itself probable or foreseeable.

Claimant cites the case of Ney v. Yellow Cab Company, 2 Ill. 2d 74, 117 NE2d 74 in support of his contention.

In the Nev case, a thief stole a vehicle which was left at a curb with the engine running. The thief caused damage to the plaintiff’s car while the thief was operating the stolen vehicle. The Court held that the owner of the vehicle was liable despite the intervention of a criminal force which directly caused the injury.

However, the basis here of Claimant’s claim is Ill. Rev. Stat. 1975, ch. 23, par. 4041. The Statute provides:

“Damages Caused by Escaped Inmates of State Controlled Institutions” Whenever a claim is filed with the Department of Mental Health and Developmental Disabilities, the Department of Children and Family Services or the Department of Corrections for damages resulting from personal injuries or damages to property, or both, or for damages resulting from property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable, penal, reformatory or other institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Mental Health and Developmental Disabilities, the Department of Children and Family Services or the Department of Corrections shall conduct an investigation to determine the cause, nature and extent of the damages and if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the Department may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have the power to hear and determine such claims. (Emphasis supplied.)

The statute emphasizes the legislature’s intent that the State will be liable for damages sustained by a Claimant if the loss occurred while he (inmate) was at liberty after his escape and the damage was caused by the escapee.

In the case at bar, the testimony of the inmate and the two police officers who took him into custody clearly proves Claimant’s truck bed was full at the time of the arrest. Lane and Gerder were no longer “at liberty,” after their escape and any loss which occurred subsequent to that point in time is beyond the above statute, the basis of Claimant’s claim.

In interpreting the Statute referred to, we previously stated in Fuller v. State (1967), 26 Ill. Ct. Cl. 14,15:

Therefore, the elements, which must be ascertained before a recovery is awarded to Claimant, are: (1) that an inmate escaped from an institution over which the State had control; (2) that the inmate caused the damage claimed while he was at liberty after his escape; (3) that the proper State authority establishes upon investigation that the damages were caused by the escapee; and, (4) a determination of the nature and extent of the damages.

This case should be read and followed in cases of this kind. As we said on page 18 of said Case:

“We do not accept the pertinency of such an argument in the light of the specific recovery right bestowed by the Statute (Ill. Rev. Stat. 1963, ch. 23, par. 4041).

In that case Respondent claimed that Claimant’s violation of a section of the Motor Vehicle Act amounted to negligence and was the proximate cause of his loss (Page 18). The Court rejected that argument.

Claimant has failed to prove by a preponderance of the evidence that his loss was caused by Gerder and Lane while they were at liberty. Claimant’s claim must therefore be denied.

Redress here is strictly statutory. It could well be that Claimant had redress elsewhere. Damages occurring after the inmates were no longer at liberty are not covered by the statute involved, and the statute is controlling.

Claim denied.


author: Per Curiam.

text:
    (Nos. 75-GC-0123 and 75-CC-0124
    Medley’s Enterprises, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed June 18, 1980.

   Per Curiam.

This cause coming to be heard on the Court’s own motion to dismiss, it appearing to the Court that due notice has been given, and the Court being fully advised;

The Court hereby finds that:

1. On August 9, 1979 the Court handed down an order whereby an award was made in the instant claim only if, as and when the Claimant filed an amended complaint substituting Medley Movers and Storage as the proper Claimant.

2. Rule 26 of the rules of the Court of Claims provides that a case may be dismissed for want of prosecution where the Court determines that the Claimant has made no attempt in good faith to proceed.

3. The Deputy Clerk of the Court of Claims made written requests of Claimant to comply with the Order on November 5, 1979, January 16, 1980, and an oral request on June 4, 1980. Furthermore, a duplicate file was sent to Claimant on February 4, 1980.

4. To date no action has been taken by Claimant in response to the Court’s conditional order.

5. The Claimant has made no attempt in good faith to proceed.

It is hereby ordered that this consolidated claim be and hereby is dismissed for want of prosecution.


text:
    (No. 75-CC-0127
    Joseph Kowaczek, Sr., Administrator of the Estate of James Kowaczek, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 21, 1979.

    Edward L. Cooper, for Claimant.

      William J. Scott, Attorney General (Glen P. Earner, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This matter comes before the Court upon the joint stipulation of the parties. The action has been brought by Joseph Kowaczek, Sr., as the Administrator of the Estate of James Kowaczek, deceased, seeking recovery for the wrongful death of the decedent. Both parties have stipulated to the following facts:

1. That on May 18, 1973, the Claimant’s decedent, James Kowaczek, was admitted to Elgin State Hospital for treatment.

2. That at all times mentioned herein, the Respondent owned, operated and maintained Elgin State Hospital.

3. That at the time in question, Respondent was under a duty to diagnose and treat the decedent in accordance with the accepted standards of prevailing medical practice in the community.

4. That on May 18 and May 19 of 1973, the Respondent was negligent in that it failed to correctly diagnose the decedent’s condition and failed to provide the decedent with adequate medical care.

5. That the above negligence was the proximate cause of the decedent’s death on May 19,1973.

6. That as a result of the Respondent’s negligence and the consequent death of James Kowaczek, the Claimant has suffered and is entitled to damages in the amount of $4,000.00.

The parties have further agreed that no further evidence will be introduced by either party, and that the right to a hearing and to file briefs has been waived. Claimant has also agreed that he will accept the award of $4,000.00 as full satisfaction of the claim.

It is the prerogative and duty of the Court to adjudicate for itself the issues of negligence, proximate cause and damages, and in so doing, it is not bound by facts agreed upon by the parties to the action. At the same time, the Court is not mandated to reject stipulations of facts and agreed amounts of damages; nor is the Court desirous of creating a controversy where none appears to exist.

Where, as in the instant claim, the Court is not called upon to decide between two contrary sets of facts and legal theories, the decision must rest upon the propriety and validity of the stipulation submitted by the parties. The stipulation in this case appears to have been freely and validly entered into by all parties concerned, with full knowledge of all the facts involved. It also appears that the stipulation has set forth uncontroverted facts which are sufficient upon which to grant an award. The Court finds also that the amount of the award is an appropriate and fair recovery for the Claimant, as it has no facts before it to otherwise indicate.

It is therefore the opinion of this Court that the Claimant, Joseph Kowaczek, Sr., Administrator of the estate of James Kowaczek, be, and hereby is, awarded the amount of $4,000.00.


text:
    (No. 75-CC-0197
    Rozelle Jeffery Spencer, et al., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 7, 1979.

    Rees and Sullivan (Thomas Ryan Rees, of counsel), for Claimant.
    William J. Scott, Attorney General (Richard Gross-man, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This is an action brought by Rozelle Jeffery Spencer, individually and d/b/a Aaron Rros. Moving System, to recover $28,921.85 as payment for 216 moves allegedly made during 1972 and 1973 for alleged Public Aid recipients.

Respondent does not contest $5,182.55 of this amount. The balance is contested on the following grounds:

1. Many of the allegedly unpaid bills have in fact been paid.

2. The Department of Public Aid could not verify that many of the persons moved were in fact Public Aid recipients at the time the moving services were rendered.

3. The Claimant did not follow the proper procedures in securing authorization for many of the moves.

In March of 1973, a new program was implemented by the Department of Public Aid called the Relocation Service. Under this procedure, a mover was required to secure approval for moves through the relocation service, rather than through the recipient’s caseworker. To ease the transition from the old program into the new program, a three-week grace period was allowed. There were 14 moves made during the period at a cost of $1,787.00. One of the moves, however, occurred three and one-half months after the relocation service became effective, at a cost of $130.00. Recovery for this move should be denied. Claimant should, however, recover $1,652.00.

Also during the time in question, Claimant had factored some of his accounts receivable with the Independence Bank. In November of 1972, he authorized the State to send payment directly to this bank. Despite Claimant’s testimony that none of the factored accounts were involved in this suit, a photocopy of a State of Illinois warrant for $3,172.50, covering some of the moves in question and endorsed by the Independence Bank, was introduced into evidence. This Court is of the opinion that Claimant should not recover on any of these accounts.

Respondent has alleged that it paid for 45 of the moves in the amount of $6,099.80. Yet, Respondent could only produce evidence of payment for 19 of these accounts, totaling $2,874.30. Therefore, Claimant may recover only $3,225.50 on these bills.

On many of the accounts, Respondent could not locate its records. As a genuine dispute exists here, and the evidence is open to interpretation, a compromise of the $2,695.00 involved is recommended.

Also on many accounts, a search of Respondent’s records showed that $6,391.00 worth of Claimant’s services were performed for persons who could not be identified as public aid recipients. This Court feels that it was Claimant’s duty to ascertain whether or not persons requesting Claimant’s services were in fact public aid recipients. Since Claimant has offered no evidence tending to prove that these persons were in fact receiving public aid, recovery on these accounts is denied.

Claimant also argues that because of the confusion and disorganization in the Public Aid offices, various accounts totaling $6,772.00 were unpaid. Respondent contests these accounts for various reasons such as: “no request for moving expenses”, “move not approved because client moved to substandard housing”, “excess rent”, etc. This Court finds that Claimant has not sustained its burden with respect to these accounts:

ALLOWED:

Admitted by State $ 5,182.55

Allowed because of transition 1,652.00

No evidence payment 3,225.00

Fifty percent State can’t find records. 1,347.05

Total Allowed $11,407.05

DISALLOWED:

Evidence of payment submitted $ 2,874.30

can not identify as recipient 6,391.00

fifty percent State can’t find records 1,347.50

Unauthorized moves 6,772.00

Improper authorization 130.00

Total Disallowed $17,514.80

Wherefore, Claimant is awarded $11,407.05.


text:
    (No. 75-CC-0227
    Rozelle Jeffery Spencer, et al., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 7, 1979.

    Rees & Sullivan (Thomas Ryan Rees, of counsel), for Claimant.
    William J. Scott, Attorney General (Richard Gross-man, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This is an action by Rozelle Jeffery Spencer, individually and d/b/a Aaron Bros. Moving System to recover $8,947.50 as payment for 67 moves for alleged Public Aid recipients.

Respondent does not contest $995.00 of this amount. The balance is contested on the following grounds:

1. $1,852.50 of the allegedly unpaid bills have in fact been paid.

2. The Department of Public Aid could not verify whether the persons moved were in fact Public Aid recipients at the time of $2,360.00 of moving services were rendered.

3. The Claimant did not follow the proper procedures in securing authorization for many of the moves for $3,740.00.

Wherefore, this Court awards the sum of $4,735.00 after deducting the unidentified recipients and the amount paid from the original claim.


text:
    (No. 75-CC-0263
    Alfred Moore, Claimant, v. The State of Illinois, Respondent.

      Order filed October 26, 1979.

   Per Curiam.

The Court having read the arguments of counsel and the report of the Commissioner and being fully advised in the premises, finds as follows:

1. That the Claimant was unjustly incarcerated in a State penal institution for a total of 28/2 months.

2. That the Claimant was pardoned by the Governor of Illinois on grounds of innocence.

It is therefore ordered, adjudged and decreed as follows:

1. That the Claimant be awarded the amount of $5,700.00 based on $200.00 per month for each month of incarceration.

2. That the attorney for the Claimant is allowed $1,000.00 as and for attorney’s fees, to be paid by Claimant from said award.