text:
    (No. 96-CV-2725

      In re Application of Willie Mae Bernard

      Order filed July 5, 1996.

      Opinion filed July 23, 1998.

    Willie Mae Bernard, pro se.

    Jim Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on February 25, 1996. Willie Mae Bernard, mother of the deceased victim, Mandel Durrah, III, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 et seq.

This Court has carefully considered the application for benefits submitted on March 18, 1996, on the form prescribed by tire Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on February 25, 1996, the victim was fatally shot, allegedly by an offender who was not known to him. The incident occurred at 324 East 75th Street, Chicago, Illinois. Police investigation revealed that, prior to the incident, the victim was causing a disturbance at a liquor store as he was trying to solicit money from the customers. When the alleged offender entered the store, the victim approached her and an altercation ensued. During this altercation, the victim hit the alleged offender in her face. As a result of this action, the alleged offender produced a handgun and shot the victim. The alleged offender was apprehended and charged with first degree murder. The criminal proceedings against her are currently pending.

2. That section 10.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 10.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victim s acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. That it appears from the investigatory report and the police report that, prior to the incident, the victim was causing disturbances at a liquor store while he was trying to solicit money from the customers. When the alleged offender entered the store, the victim approached her and an altercation ensued. During this altercation, the victim hit the alleged offender in her face. As a result of this action, the alleged offender produced a handgun and shot the victim.

4. That the victims conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

5. That this claim does not meet a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby, denied.

OPINION

Frederick, J.

This claim arises out of an incident that occurred on February 25, 1996. Willie Mae Bernard, mother of the deceased victim, Mandel Durrah, III, seeks compensation pursuant to the Crime Victims Compensation Act, hereinafter referred to as the Act. 740 ILCS 45/1 et seq.

On July 5, 1996, this Court, relying on the investigatory report, denied the claim finding that the victims conduct contributed to his death to such an extent as to warrant that the Claimant be denied compensation. The Claimant seeks only funeral expenses. The Claimant timely filed a request for hearing and the cause was tried before a Commissioner.

The investigatory report of the Attorney General indicates that, on February 25, 1996, the victim, Mandel Durrah, III, was fatally shot by an offender who was not known to him. The incident occurred at 325 E. 75th St., Chicago, Illinois. The police investigation indicates the victim was causing a disturbance at a liquor store as he was trying to solicit money from the store customers. When the alleged offender entered the store, the victim approached her and an altercation occurred. During this altercation, tire victim hit, or tried to hit, the alleged offender in the face. The alleged offender produced a handgun and shot and killed Mandel Durrah, III.

Claimant, Willie Mae Bernard, testified at the trial of this case before the Commissioner. She indicated that she was not present at the liquor store at the time her son, Mandel Durrah, III, was shot. Claimant did produce part of the transcript of the criminal trial against the alleged offender. Minnie Pruden also testified. She stated that she attended all hearings and the trial of the alleged offender, Laketa McCoy. Ms. Pruden testified that the victim was a fun-loving person and was not mean or violent. She believes the killing of Mandel Durrah, III was unnecessary. He was shot nine times with four times being in the back. She felt the police did not put down the truth in the reports. The burial expenses were $4,590.

Sandra Hatcher testified that she felt the offender had no remorse and that she believed the case had something to do with the Casey boys. The police report admitted into evidence indicates that the police talked to Barton Casey and Shawn Casey. They told the police that the victim had been in the store harassing customers as they entered for service. The victim told customers he would “kick their ass” or rob them. While in the rear of the store, both witnesses stated they heard a loud verbal altercation between the victim and an unknown customer. Soon thereafter, seven or eight shots rang out and the offender fled the scene. The victim sustained seven gunshot wounds. The alleged offender was Shawn Caseys girlfriend.

Supplemental reports indicate that statements were taken of two customers, Sheila J. Skinner and Robert E. Skinner. Sheila Skinner stated that on February 26,1996, at 12:10 a.m., she and her uncle, Robert E. Skinner, went to the Sunshine Food & Liquor Store to purchase beer. Upon arrival, an unknown black male, the victim, walked up to Robert E. Skinner and, for no apparent reason, grabbed her uncle and picked him up. Ms. Skinner heard the cashier shout, “Put him down or I’m going to call the police.” The victim put Mr. Skinner down and they left the store. Robert E. Skinner related the same story to the police.

The portion of the transcript of the trial of Laketa McCoy provided by Claimant contains the testimony of Shawn Casey and Rarton Casey. They were called as witnesses by the prosecution. Shawn Casey testified at trial that he had been dating Laketa McCoy. After he went to work, he saw the victim and alleged offender arguing back and forth. Mr. Casey told the victim to back off. He did, but eventually came back and said something about stomping or kicking “your ass.” The victim then stuck his knuckles toward Laketas face and said, “I ought to knock your ass out.” Laketa said, “Well, do it then,” or something to that effect. Laketa backed into a comer and the victim took a swing at her. Mr. Casey did not know if he hit her or not.

Mr. Casey ran around to the outside door and was going to pull the alleged offender in. As he did so, he heard gunshots. He got into the customer area and saw the victim on the floor. The alleged offender then went out the door. The police were called. Mr. Casey admitted he originally bed to the police by saying a man did the shooting. He was protecting his girlfriend. He later told the police it was his girlfriend who did the shooting.

Barton Casey testified that he was working the night of the shooting. The victim was in the store. He had been in the store on prior occasions and was known as Zack. When the victim first came in the store, he tried to sell Mr. Casey a radio but Mr. Casey didn’t want it. The victim left and came back and asked for a half pint of Mostel. The victim did not have enough money. The victim asked Mr. Casey if he would let the amount of money slide. Mr. Casey said, “No.” The victim then gave the next customer six cents as that customer was six cents short for the purchase he wanted. The customer and the victim then made a bet, which the victim lost. The victim became upset. As new customers came in, the victim would make gestures with his fist and say, “I am going to knock him out.” Then the victim grabbed a customer and turned him upside down and shook him. Mr. Casey told the victim to stop, and he stopped. The victim left the store and then came back in. He had conversations with other customers.

Laketa McCoy came in. The victim said, “I am going to knock this bitch out,” or something like that. An argument ensued and the victim threatened the alleged offender. He then hauled back and took a swing at the offender. Mr. Casey then heard the gunshots and then heard the victim fall. The alleged offender then ran out the door. He also testified he heard the defendant (Laketa McCoy) say to the victim prior to the shooting, “If you hit me, I am going to drop your ass where you stand.” It was after the alleged offender said this that the victim took a swing at her.

The Law

The Crime Victims Compensation Act is intended to aid and assist certain crime victims under specific circumstances to secure limited compensation to help pay for the damages they have sustained, but the rules and procedures applicable to such claims must be followed before the Court can make an award. (In re Application of Geraghty (1989), 42 Ill. Ct. Cl. 388; In re Application of Mandley (1995), 47 Ill. Ct. Cl. 613.) The Crime Victims Compensation Act is created by statute and is a secondary source of recovery. In re Application of George (1993), 45 Ill. Ct. Cl. 483.

To prevail, Claimant must prove by a preponderance of the evidence that she sustained a compensable loss. In re Application of Goff (1989), 41 Ill. Ct. Cl. 320; In re Application of Thanasouras (1984), 36 Ill. Ct. Cl. 456.

Section 10.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victims acts or conduct provoked or contributed to his injury or death; or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim. (In re Application of Casey (1993), 46 Ill. Ct. Cl. 610.) In filis case, we have considered all evidence presented, including the testimony at trial, the trial transcript, and the police reports. This Court can consider the police reports. In re Application of Dixon (1994), 47 Ill. Ct. Cl. 599.

While the Court certainly is sympathetic to the Claimant for the loss of her son, this Court must only consider the evidence before the Court. The evidence is clear that the victim was harassing and threatening numerous customers of the liquor store. The independent evidence of Sheila Skinner concerning the victim picking up her uncle, turning him upside down, and shaking him, corroborates that the victim was provoking the store customers. For purposes of the Crime Victims Compensation Act, we find that the victim provoked the alleged offender to such an extent that an award under this Act must be denied.

The Court of Claims is not a criminal court. We do not in any way exonerate the alleged offender. This Court can only state that, based on the limited evidence before the Court, the Claimant has failed to prove her case under the Act by a preponderance of the evidence. The evidence establishes that, but for the victim’s harassing, threatening and assaulting the alleged offender, it is more likely than not that the victim would not have been shot and killed. We make no finding as to the justification or lack thereof for the alleged offender’s conduct, as that is not within our bailiwick but is left to the criminal courts.

For this Court’s determination based on the evidence before the Court, we must find that Claimant has failed to prove all conditions precedent for an award under the Act. For the foregoing reasons, it is the order of the Court that Claimant’s claim be, and hereby is, denied.


source: Caselaw Access Project

author: Per Curiam. Mitchell, J.

license: Public Domain

text:
    (No. 96-CV-2872

      In re Application of Maria C. Rodriguez-Bibian

      Order filed September 24, 1997.

      Order filed April 20, 1999.

    Codo, Bonds, Zumstein & Konzelman (Michael Renzi and Bruce Zumstein, of counsel), for Claimant.
    Jim Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on April 6, 1995. Maria C. Rodriguez-Bibian, wife of the deceased victim, Jose H. Bibian, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740ILCS 45/1 et seq.

This Court has carefully considered the application for benefits submitted on March 29, 1996, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on April 6, 1995, the victim was fatally beaten by an offender who was not known to him. The incident occurred near Archer Road and State Street, Lemont Township, Illinois. Police investigation revealed that, prior to the incident, the victim was driving his pickup truck when he observed the offender and two of the offenders companions involved in a verbal altercation along the side of the road. The victim approached them in his pick-up truck, got out of his vehicle and involved himself in the groups private dispute. Upon intervening in the dispute, the victim immediately became an active participant in a verbal altercation with one of the offenders companions. During this verbal confrontation, the victim initiated a fight by obtaining a baseball bat type club from his vehicle and began striking one of the offenders companions in the head and arms. The offender and his other companion responded to the victims attack and began to struggle with the victim. As the victim continued to fight, the offender was able to take the club away from the victim. The offender then struck the victim in the head several times with the victims club, causing the victim to sustain fatal head injuries. The offenders two companions were subsequently acquitted of all criminal charges as a result of the incident. The offender was apprehended, prosecuted and convicted of second degree murder.

2. That section 10.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 10.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victims acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directiy or indirectly contributed to the injury or death of the victim.

3. That it appears from the investigatory report and the police report that the victim initiated a fight by striking the offenders with a baseball bat type club during a verbal altercation. As a result of this action, the victim sustained fatal head injuries after being beaten by one of the offenders with his own club.

4. That the victims conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

5. That this claim does not meet a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby, denied.

ORDER

Mitchell, J.

This claim is before the Court on the crime victims compensation application (‘¿Application”) of Claimant, Maria C. Rodriguez-Bibian, seeking compensation pursuant to the Crime Victims Compensation Act. (740 ILCS 45/1 et seq.) The claim arises out of an incident that occurred on April 6, 1995, when Claimants husband, Jose H. Bibian, was killed during an altercation. On September 24, 1997, the Court entered an order denying the claim. Paragraph 1 of the order describes the incident as reported in the Attorney Generals investigatory report. The order states that the deceased victim observed a verbal altercation amongst a group of people along the side of the road. He stopped his vehicle and, after approaching the group, he became an active participant with one of the offenders companions. The victim initiated a fight by obtaining a baseball bat type club from his vehicle and striking one of the offenders companions in the head and arms. The offender and another companion struggled with the victim, took the club away from him and struck him in the head several times causing his death. The offender was convicted of second degree murder. Section 10.1(d) of the Act states, in part, that an award shall be reduced or denied according to the extent to which the victims acts or conduct provoked or contributed to his death. The Court concluded that the victim’s conduct contributed to his death to such an extent as to warrant that Claimant be denied entitlement to compensation.

On October 15,1997, Claimant filed a request for review of the denial. Claimant acknowledged that the victim did use a weapon. She alleged that the victims intentions were peaceful in nature and he was trying to help out a bad situation. It is asserted that the victims conduct is best viewed as the actions of a good Samaritan rather than someone engaged in criminal activity and the focus should be on the victims principal goal to bring about a peaceful resolution of the parties’ argument. Claimant asserts that the victim “became threatened and it appeared violence would be imminent.” Jose seized the weapon to separate the parties. It is also asserted that the victim “was attempting to intervene to stop aggressive conduct by strangers to him.” In the alternative, Claimant requested that the public policy of encouraging good Samaritan acts should allow the award to be reduced instead of denied. Claimant provided an affidavit averring to facts stated in her petition.

A hearing was conducted on June 4, 1998, at which Claimant appeared and testified. She was represented by counsel. She stated that her husband was on his way home from work and saw a few guys fighting alongside the road when he decided to stop and break up their fight. The club was taken from him and used against him. The offender who struck her husband was convicted.

Claimant paid the funeral bill for $6,200 to Tezak Funeral Home. (Claimant’s exhibit no. 1.) She paid $350 for the cemetery plot at Mount divert Cemetery, Romeo-ville, Illinois. (Claimant’s exhibit no. 2.) She paid $421.63 to Catholic Monument Sales, Romeoville, Illinois, for a monument. (Claimant’s exhibit no. 3.)

The victim was employed by Meno Stone, Lemont, Illinois. He was earning $400 per week and during the six months prior to his death he earned a total of $9,600. She identified his payroll stubs. (Claimant’s exhibit no. 4.) All of Claimant’s exhibits were admitted into the record.

On examination by the Assistant Attorney General (AAG), the Claimant acknowledged that she was not present at the incident. The funeral and burial expenses and earnings were not confirmed by the Attorney Generals office because the denial was for contributory conduct.

The police reports were admitted into the record. (Respondents group exhibit no. 1.) Several versions of the incident indicate that a group of men were arguing and the victim struck one of them (Sabin) with the baseball bat type club and one of the others (Howard) took the club away from the victim and struck him with it.

Jason Palmer told the police that three (Sabin, Lenz and Pisciotto) of the four men all told him that the victim approached Sabin and Howard when they were arguing. Sabin and the victim exchanged heated words and the victim struck Sabin with the stick.

Claimant asserts that the victim was performing the role of a good Samaritan, but she does not provide any legal support. The provisions of the Good Samaritan Act established “numerous protections for the generous and compassionate acts of [Illinois] citizens who volunteer their time and talents to help others.” (745 ILCS 49/2.) However, none of the provisions address the situation of an individual immersing himself into a private dispute. The good Samaritan doctrine embodies a public policy protecting one from being “charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting to effect a rescue, provided that the attempt is not recklessly or rashly made.” (Blacks Law Dictionary 694 (6th ed. 1990).) Claimant has not presented any legal precedent to show that the victims alleged acts afford him a protection beyond the aforementioned general policy pronouncements.

The facts in this case are mainly provided by the group of four offenders. There are no other occurrence witnesses of the events leading to the victims death. The uncontroverted facts, as gleaned from the police report, indicate that the four offenders were out together at a couple of taverns and had consumed alcohol. They were riding in an automobile and started to argue. One of them (Howard) got out of the car. Two other passengers (Sabin and Lenz) got out of the car and argued with Howard to coax him back into the car. There is no evidence that this argument had escalated into a physical altercation. It can be presumed that the argument was carried out in a heated manner. The victim stopped, got out of his vehicle and inquired as to what was occurring. According to the offenders, the victim struck Sabin with the club before the offenders struck the victim. There is no account, as described by the offenders, where the victim was using the club to separate combatants or to protect one of them or himself. The statements by the offenders may be self-serving and not accurate. However, no other evidence is before the Court.

This is a situation where the victim voluntarily immersed himself into a dispute. It is not a situation where the victim was involuntarily pulled into one. It is not a situation where the victim could not avoid or evade the offenders.

Claimants own version indicates that the victims conduct was not performed in a reasonable manner. If the victim believed he was threatened and felt endangered, he should have left the scene. If he had the time to return to his truck and obtain the club, as asserted by Claimant, he surely had time to get into his truck and leave. If he had the club in hand as he approached the offenders, then the credibility of the offenders’ versions of the event increases and the Court finds that he had become the aggressor or had improperly escalated the argument. Either version of the victims conduct supports a finding that Claimant has failed to demonstrate, legally or factually, that the victims conduct was such that the claim should not be denied. In re Application of Catherine Dixon (1994), 47 Ill. Ct. Cl. 599.

Therefore the denial is affirmed and die case is closed.


author: Per Curiam. Epstein, J.

text:
    (No. 97-CV-0044

      In re Application of Glen Hoyd

      Order filed August 21, 1996.

      Opinion on rehearing filed May 14, 1999.

    Gregory A. Harris, for Claimant.
    Jim Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on July 7,1995. The Claimant, Glen Hoyd, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 et seq.

This Court has carefully considered the application for benefits submitted on July 5, 1996, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on July 7, 1995, the Claimant was injured as a result of a traffic accident. The incident occurred at Roosevelt and 14th Avenue, Maywood, Illinois. Police investigation revealed that the Claimant was attempting to cross the street when he was struck by an automobile. The offending driver fled the scene and has not been apprehended.

2. That in order for a Claimant to be eligible for compensation under the Act, there must be evidence that one of the violent crimes specifically set forth under section 2(c) of the Act occurred.

3. That “crime of violence” as specified in section 2(c) of the Act does not include any other offense or accident involving a motor vehicle except reckless homicide and driving under the influence of intoxicating liquor or narcotic drugs.

4. That the issues presented to the Court are: (1) whether the Claimants injury that was caused by the offenders operation of a motor vehicle is compensable under section 2(c) of the Act; (2) whether the fact that the offender fled the scene of the incident has an effect on the Claimants eligibility for compensation under the Act.

5. That as the Court stated in In re Nancy Hansen (1980), 34 Ill. Ct. Cl. 401: “The Court has uniformly taken the position that the Illinois Crime Victims Compensation Act is not applicable to unintentional motor vehicle offenses, as not being a ‘crime of violence’ within §2(c) thereof.” See also In re Jean Desir (1980), 34 Ill. Ct. Cl. 391; In re Stevens (1976), 31 Ill. Ct. Cl. 710; In re Ceniceros (1995), No. 94-CV-2822.

6. That the Court has also recognized that while a hit-and-run accident is a crime, it is not one of the crimes specifically enumerated in the Act as being the basis of a claim under the Act. In re Alfonso Viscarrondo (1980), 34 Ill. Ct. Cl. 402; In re Ceniceros, supra.

7. That this claim does not meet a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby, denied.

OPINION ON DENIAL OF REHEARING

Epstein, J.

Claimant has petitioned for a rehearing of the Court’s denial (order of May 11, 1998) of his application for compensation under the Crime Victims Compensation Act (the “Act”) as a victim of a hit-and-run automobile incident.

In that opinion, on first rehearing from our initial adverse order, this Court rejected Claimant’s application for lack of a compensable “crime of violence” under the Act. Although the Court found that reckless driving had been shown, our inability to find an intentional crime on this record required us to deny compensation under the Act.

Claimant’s petition for rehearing urges the point that extreme “reckless, wanton and willful” driving of a motor vehicle can constitute assault with a deadly weapon under section 12 — 2 of the Criminal Code of 1961 — actually section 12 — 2(a)(1) (720 ILCS 5/12 — 2(a)(1))—and that, because section 12 — 2 is one of the compensable “crimes of violence” listed in section 2(c) of the Act (740 ILCS 4572(c)), such “reckless, wanton and willful” driving is (or can be) compensable under the Act. Claimant argues that the section 12 — 2 caselaw has recognized such conduct witii a motor vehicle as willful, rather than merely negligent, and that such constructively willful conduct can constitute a criminal act without a showing of specific intent to injure the victim, citing People v. Crockett (1957), 13 Ill. App. 2d 255, 141 N.E.2d 641; People v. Clink (1920), 216 Ill. App. 357; and State v. Schutte, 87 N.J.L. 15.

Because of the novelty of this argument, as well as the infrequency of section 12 — 2 crimes to be asserted as grounds for compensation under the Act, we set this case for oral argument. However, for reasons unknown, Claimants counsel did not appear.

The Court finds it is unnecessary to address the interesting and non-obvious issue of what is substantively added to the section 2(c) fist of compensable “crimes of violence” by the inclusion of section 12 — 2 of the Criminal Code, “aggravated assault”, (720 ILCS 5/12 — 2) in addition to such compensable crimes as simple assault (section 12 — 1 of the Criminal Code). Presumably, if not conclusively, something was intended by the General Assembly by its inclusion of this crime among the other compensable crimes under the Act. But the facts of this case do not raise that issue.

This is because the “reckless” driving facts here, as we have previously found, do not rise to the level of an intentional or willful act, which remains the dispositive issue. Even if we assume arguendo that the motor vehicle in this case was a “deadly weapon” as this Claimant contends, our third rereview of this record leaves us unconvinced that the perpetrators acts in this case were so reckless or wanton as to rise to the level of a constructively willful or intentional act. For this analysis, we also assume arguendo that the cited caselaw (Crockett, Clink and Schutte, supra) would be good law under the Criminal Code of 1961, which was enacted after those decisions.

This Court agrees that a motor vehicle can sometimes be a “deadly weapon” and that some conduct can be so extremely reckless and wanton as to be deemed willful or intentional, for purposes of the Crime Victims Compensation Act. But we do not find such extraordinary wanton or reckless acts in this case, and therefore, we must reaffirm our previous conclusion, and deny this claim.

Accordingly, the petition for rehearing is denied, and this case is closed.


author: Mitchell, J.

text:
    (No. 97-CV-1106

      In re Application of Kellie Bello

      Order filed October 20, 1998.

    Kellie Bello, pro se.

    Jim ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This claim arises out of an incident that occurred on September 28, 1996. The Claimant, Kellie Bello, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 etseq.

This Court has carefully considered the application for benefits submitted on October 23, 1996, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on September 28, 1996, the Claimant was beaten by an offender who was known to her. The incident occurred at 424 South Fulton, Bradley, Illinois. Police investigation revealed that, prior to the incident, the Claimant was advised to leave this residence by police who were called earlier in the day regarding a domestic dispute at this location. The Claimant then re-entered the residence through a window. The Claimant and the offender became involved in a physical altercation. The offender called the police and the Claimant was again advised by police to leave the offenders residence. No charges were filed regarding this incident.

2. That section 10.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 10.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victims acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. That it appears from the investigatory report and the police report that prior to the incident the Claimant was advised to leave the offenders residence by police. The Claimant later re-entered the residence through the window.

4. That the Claimants conduct contributed to her injury to such an extent as to warrant that the Claimant be denied entitlement to compensation.

5. That this claim does not meet a required condition precedent for compensation under the Act.

It is-hereby ordered that this claim be, and is hereby denied.


author: Sommer, C.J. Sommer, C.J.

text:
    (No. 97-CV-2783

      In re Application of Arthur Johnson, Jr.

      Order filed May 5, 1997.

      Order filed January 11, 1999.

    Arthur Johnson, Jr., pro se.

    Jim Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, C.J.

This cause is before the Court on Claimants petition and application for benefits. Claimant filed his application on April 9, 1997, which states that Claimant was the victim of a violent crime that took place on November 10,1993.

Section 6.1 of the Crime Victims Compensation Act (740 ILCS 45/6.1) requires that claims be filed with the Court within one year of the date of the occurrence of the crime. The Court may extend that period by one year. These limitations periods are, however, jurisdictional. (705 ILCS 505/22(h).) In the present case, Claimants application was filed over three years after the date of the crime. The Court sympathizes with Claimants plight but is constrained by statute from making an award.

It is hereby ordered that Claimants petition and application for benefits is denied and this cause is dismissed with prejudice.

ORDER

Sommer, C.J.

This cause is before the Court on Claimants application for benefits under the Crime Victims Compensation Act. (740 ILCS 45/1 et seq.) On May 5, 1997, this Court denied Claimants petition for extension of time and application on the ground that they were not filed within the limitations period set forth in the Act. Claimant filed a timely petition for hearing, which was held before a Commissioner of this Court on February 18, 1998. No briefs have been filed in this matter.

According to Claimants petition for extension of time and application, on November 30,1993, he was getting out of his car to talk to a friend when he was shot twice in the chest and back. At the hearing, Claimant and his mother testified that he was taken to Little Company of Mary Hospital immediately. After about two months, Claimant was transferred to Mercy Hospital for one month, then allowed to go through rehabilitation at home. In October of 1994, Claimant underwent outpatient and inpatient rehabilitation at Oak Forest Hospital until December, when he returned home.

After Claimant returned home, his rehabilitation continued. It appears that Claimant remains paralyzed below the waist and is confined to a wheelchair. During his hospitalization, Claimant had several surgeries and there is little doubt from the testimony of Claimants mother and pastor that he and his mother have suffered tremendously as a result of this tragedy.

Section 6.1 of the Crime Victims Compensation Act (740 ILCS 45/6.1) requires that claims be filed with the Court within one year of the date of the occurrence of the crime. The Court may extend that period by one year. These limitations periods are, however, jurisdictional. (705 ILCS 505/22(h).) In the present case, Claimants application was filed over three year’s after the date of the crime.

Claimants mother testified that she learned of the crime victims compensation program while her son was at Mercy Hospital, two months after he was shot. Claimants mother also testified that she called the crime victims program at the Attorney Generals office at some unknown time, and received an application. She did not complete the application immediately, however, because she was moving to another house. All of Claimants medical bills were paid by Public Aid. Claimant is seeking compensation for lost wages.

In order to extend a time for filing, a person must be “legally disabled,” that is, the person must be an infant or suffering from mental incapacity or incompetency. (In re Application of Curry (1994), 47 Ill. Ct. Cl. 550, 553.) Claimant is confined to a wheelchair and his mobility is severely restricted. This limitation, however, is an impairment and does not rise to the level of incompetence. There is no evidence that he was incompetent for the entire two-year period, or even a substantial part of it, following the crime. In fact, there was no evidence presented about Claimant’s mental abilities at all. While there is no doubt that Claimant has suffered greatly, he has not proven that he was incompetent under the law.

Wherefore, this Court’s order of May 5, 1997, denying this claim is affirmed and this case is closed.


author: Per Curiam. JANN, J.

text:
    (No. 97-CV-3409

      In re Application of Raul Elizondo

      Order filed November 7, 1997.

      Opinion filed May 14, 1999.

    Raul Elizondo, pro se.

    Jim Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on April 6, 1997. Raul Elizondo, father of the deceased victim, Rodolfo Garcia, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 et seq.

This Court has carefully considered the application for benefits submitted on June 19, 1997, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on April 6, 1997, the victim was fatally shot, allegedly by two offenders who were not known to him. The incident occurred at 644 Penn Avenue, Aurora, Illinois. Police investigation revealed that, prior to the incident, the victim, a known street gang member, flashed gang signals while at a party attended by rival street gang members. As a result of these actions, one of the rival street gang members produced a handgun and shot the victim as he was leaving the party. The alleged offenders were arrested and charged with first degree murder. The criminal proceedings against the alleged offenders are still pending.

2. That section 10.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 10.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victims acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. That it appears from the investigatory report and the police report that the victim initiated an altercation by flashing gang signals to members of an opposing street gang. This incident occurred as a result of their gang affiliation, gang rivalry and face to face provocation.

4. That the victims conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

5. That this claim does not meet a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby, denied.

OPINION

JANN, J.

This matter comes before the Court on the petition of the Claimant, Raul Elizondo, father of the deceased victim, Rodolfo Garcia. Claimants petition seeks compensation pursuant to the Crime Victims Compensation Act, hereafter referred to as the Act (740 ILCS 45/1 et seq.), for burial expenses.

The procedural history is as follows:

On June 19, 1997, Claimant filed his petition for compensation.

On November 7, 1997, the Court entered an order which found that the victim initiated the altercation which resulted in his death by flashing gang signals to members of an opposing street gang. The claim was denied on the basis of the victims contributory misconduct.

On December 5,1997, Claimant filed his timely petition for hearing. Hearing was held on April 28, 1998, before Commissioner Elizabeth Rochford. Claimant, San Juana Elizondo, decedents mother, and Chaplain Michael Murray testified at hearing.

The record indicates:

On April 6, 1997, the victim was assaulted and fatally shot by two offenders at 644 Penn Avenue, Aurora, Illinois. The police investigation stated that the victim, a known street gang member, flashed gang signals at a party attended by rival street gang members. One of the rival street gang members produced a handgun and shot the victim after a fist fight with another gang member and the decedent.

At hearing, Claimant, Raul Elizondo, appeared and disputed the findings of the investigatory report. Claimant testified that his son was moving his hands while dancing and not flashing gang signs. Claimant was not a witness and relied upon hearsay.

Following the hearing, Claimant produced portions of the transcript from the offenders murder trial. Witness Joseph Madrid testified under oath that, at the time of the police investigation, he told the police that the victim may have been throwing gang signs but that he wasn’t sure. At the trial Madrid testified as follows:

“A. I don’t think they were gang signs. He was just, you know, dancing, when you just move your hands. Disco music, you just move your hands.”

Both Claimant and Mrs. Elizondo testified that, although their son was a gang member, his gang affiliation should be irrelevant to recovery under the fact scenario herein. Chaplain Murray claimed to “represent” Claimant and Mrs. Elizondo as a “qualified health professional” working with families of the victims of gang violence. The hearing transcript, when taken as a whole, indicates that all three witnesses mistakenly believed that the Act is an entitlement of some form of universal insurance. Chaplain Murray also made an impassioned plea for political support of his “program” which was not clearly defined and appeared to have absolutely no relevance to the gravamen issue of fact determinative of an award under the Act.

We have carefully reviewed the voluminous police report, which includes numerous witness statements and is part of the departmental report filed herein by the State. Claimants allegations rebutting the conclusions in the Courts order denying this claim were duly considered in our scrutiny of the record and investigatory report. We are only too aware of the tragic loss suffered by the Elizondo family and regret that similar incidents are all too frequently before us.

Our review indicates that our original order was in error as it relied upon the sole action of the decedent in allegedly “flashing gang signs” while dancing at the party, which behavior directly led to his demise at the hands of rival gang members. Decedents activities at the party included a fist fight with rival gang members just prior to the shooting. The statements of his companions, Ms. Soto and Ms. Carrillo, clearly indicate decedents gang affiliation was widely known, as was the fact that rival gang members were present at the party. Apparently, the hostess had specified that no gang colors were to be worn at the party. However, the assailants wore gang hats as identified by numerous witnesses. A sign on the front door of the house where the party was held was seized as evidence. The sign stated no gang colors would be allowed at the party. Said sign belies the allegation that persons attending the party were unaware of the probability of conflict due to gang rivalries.

The record as a whole indicates that the decedents gang affiliation, attendance at a party with known rival gang members and participation in a fist fight directly contributed to his death to such an extent as to warrant denial of this petition for compensation.

This claim is hereby denied and dismissed with prejudice.


author: Raucci, C.J.

text:
    (No. 87-CC-1795
    Terry Williams, a/k/a Vincer Mitchell, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 2, 1999.

    Stuart Joshua Holt, for Claimant.
    Jim E. Ryan, Attorney General (Warren Benning, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This is a prisoner tort action arising out of an incident which allegedly occurred on June 10, 1986, at the Illinois State Penitentiary in Pontiac, Illinois, where the Claimant was incarcerated. Claimant alleges that while on his work assignment duty in the upper inmate dining room at Pontiac, the front cover of a fan fixture fell, striking him on his back and that he sustained serious injuries. Claimant alleges that Respondent, State of Illinois, was under a duty to maintain in a suitable safe condition the building and its fixtures, including the covers on the fan fixtures so that they would not fall and injure persons occupying the premises.

At trial, Williams appeared pro se and stated that he preferred to be addressed as Vincer Mitchell. Since this claim was filed at a time when he was known as Terry Williams, we will continue to refer to Claimant as Terry Williams.

Mr. Williams explained that his attorney, Mr. Stewart J. Holt of Chicago, Illinois, had made contact with him and he had been advised that Mr. Holt would not appear for the hearing. Williams acknowledged that his attorney had encouraged him to proceed pro se or to retain a local attorney. Mr. Williams announced his readiness to proceed. Williams said that he was at Pontiac Correctional Center in the “chow hall playing cards” when a fan cover fell from the ceding and hit Claimant in the back. Claimant was taken to an outside hospital, put in traction for three days and returned to Pontiac. Shortly before the incident, Claimant had been moved to Pontiac from Jacksonville Correctional Center where Claimant had undergone an operation on his lower back. Claimant said that he believed that the fan “rotated” and hit the wall and then the fan cover fell “a good 15 feet” and struck him. Claimant estimated the size of the fan cover to be about the size of a 15 inch tire for an automobile and that its weight was 10, 15 or 20 pounds. Claimant assumed that the fan cover as made of steel as opposed to plastic.

Claimant contends that after he was returned to Pontiac, he was placed in the Pontiac Hospital for back therapy. He also says that he was returned to the outside hospital on several occasions, the number of which he was uncertain about. Claimant said that, during the time he was being taken to an outside hospital for treatment from the Pontiac Correctional Center, he was having numbness from his lower hip down to his toe on the left side. On occasion he was in so much pain he couldn’t walk up the stairs and was “bent.”

Claimant was put on medical leave and never returned to prison employment after the incident.

Claimant’s treatment continued while he was at Pontiac by his being taken to outside hospitals over a period of two or three months. At such time as Claimant ceased being taken to outside hospitals for therapy, his medical treatment at Pontiac ceased.

During a time after Claimant was discharged from the Department of Corrections, he was examined by Dr. Gleason. At the time of the examination while Claimant was “on the street,” Claimant was not receiving medical treatment but was taking Motrin. While out of prison, he worked at the Chicago Yacht Service for about a year and a half detailing (cleaning) boats. His employment terminated because Claimant “wasn’t getting along with certain people on the job.” Claimant also worked at O’Hare Airport where he “checked on security” but he contends he lost that job because “the standing up caused tension” on his lower back. Claimant was last treated for the injury in 1996 after his re-incarceration, when he was given steroid shots in his back at Graham Correctional Center. The steroid shots helped. At the time of the hearing, Claimant testified he has problems only when he sleeps a certain way and lays on his stomach or his right side. If he picks anything up that is heavy, he gets a pain from his lower left hip all the way down to his left big toe. Claimant recalls that when he was actively being treated by physicians he was restricted to lifting nothing over 50 pounds.

The surgery Claimant had at Jacksonville prior to his injury in this case was because he couldn’t straighten up due to a ruptured disk in his lower back. Claimant said his ruptured disk wasn’t as a result of an accident, but just deterioration. Claimant was on the boxing team and did not believe the boxing ruptured the disk.

At the time of hearing, Claimant was 37 years of age, 5 feet, 9 inches tall, weighing 140 pounds. Claimant testified that his weight had not varied over five pounds from the time of the incident in 1986 to the present.

Claimant testified that, after his initial surgery at Jacksonville, he was cured and was able to straighten up and didn’t feel that he had any problems. Claimant admitted that he underwent no surgeiy after the fan cover fell and struck his back, but was only taken back and forth to the outside hospital and given shots in his lower back for pain.

Claimant testified that he sustained a long laceration and resulting scar across his back where the fan cover struck him. It was not sutured.

Claimant had no medical expense as a result of the injury, as all of it was paid by the Department of Corrections.

Edward W. Grant, a chief electrician at the Pontiac Correctional Center, testified on behalf of Respondent. Grant had worked at Pontiac for 24 years. Grant described the fan in question as a 24-inch stationary mounted, three-blade Dayton fan. Grant testified that the fans are stationary and do not oscillate. Grant testified that the maintenance problems with the fans came from the fact that the “grates” were getting knocked off by the prisoners so that pieces of the “grates” could be used for weapons. The wire on the front of the fan is very hard and makes a good weapon. Grant testified, “that was the maintenance problem with these fans.” Grant testified that the front of the fan would weigh from five to seven pounds. Grant testified that he determined that the fan cover came off because somebody bent it with something heavy, like a mop handle.

In questioning by the Commissioner, Grant testified that the fan covers can’t just “come off’ but must be “broke loose” first.

Lt. Lariy Crosiar was called and testified on behalf of Respondent. At the time of his incident he was a “feed Lieutenant” running feeds which included making sure the dining room was clean and the chow lines called in the correct order. Prior to Claimant’s injury there had been no complaints made as to the fans in the dining hall. Daily inspections are made of the whole dining room and kitchen area, and there is a weekly summary report which would include the fans. Inmates were known to attempt to steal pieces of the fans to make weapons. Crosiar did not remember the incident where it was alleged that Claimant was injured. Inspections of the dining room including the fans were done nightly whether Lt. Crosiar was there or not.

Ronald Gruber was called and testified on behalf of Respondent. Gruber was in charge of medical records at Pontiac at the time of Claimant’s injury. The records showed that Claimant underwent a laminectomy in September of 1985. No restrictions were placed on the Claimant. The records revealed that on June 10, 1986, there was an injury report which stated that part of a fan cover fell on the Claimant’s back causing him to be sent to the local emergency room at St. James Hospital and examined. The records reveal that a contusion was noted in the area of the Claimant’s lower back. Gruber testified that a contusion was a black and blue area. Gruber testified from the records that Claimant’s final diagnosis was lumbosacral sprain and contusion of the back. He had been admitted on June 10,1986, and discharged June 13,1986.

After he was discharged, Claimant was sent out “multiple times on medical furloughs” for evaluation. Claimant was ultimately seen by Dr. Sinha, the surgeon who had seen him prior to the incident of the fan falling on him. Sinha’s summary contained a clinical impression that Claimant suffered from chronic lumbosacral sprain. Gruber testified that Claimant had a lot of testing. The testing, according to the specialist Dr. Sinha, revealed that according to the CAT scans, findings were non-specific, the MRI was normal, and the routine X-rays of the spine and pelvis were all within normal limits. Gruber had no information after March 3,1988.

On questioning by the Commissioner, Gruber testified that the original notes from the emergency room where Claimant was taken after the alleged injury made no mention of a laceration.

On cross-examination by Claimant Williams, Gruber testified that he was seen at the emergency room by Dr. Managat. The examination notes from the emergency room reflect that Claimant suffered severe tenderness MW paraspinal muscle spasms starting from L-l, S-l, but that the other tests were essentially negative, and that the Claimant should be retained for observation.

The evidence deposition of Dr. John F. Gleason was taken August 28, 1995, and admitted as Respondents exhibit C. Gleason testified that, at the time he first saw Williams on August 19, 1993, a history was taken of the accident and Williams’ prior stories of his medical background. Williams testified that early in 1986 while incarcerated, he was sitting and a ceiling fan fell and landed in the middle of his back. Gleason testified at length as to Williams’ complaints. On examination, Gleason found there was some straightening of Williams’ normal lumbar lordosis. Williams had sustained no gluteal atrophy. Gleason testified that the results of the tests on Williams were that “it was a normal finding.” There were no restrictions. Gleason’s extensive examination of Williams on August 19, 1993, concluded that his symptoms were consistent with someone who had had a laminectomy in his low back but was otherwise normal, and would result in no restrictions related or secondary to the fan striking his upper back. All restrictions were secondary to the surgery of 1985, before he was struck on the back. The laceration on his left upper lumbar area and the tenderness at that site were secondary to the fan striking the Claimant. There were two injuries and two separate areas.

A second evidence deposition was taken of Dr. Gleason on May 20, 1996. Subsequent to his first deposition, Dr. Gleason was given medical records on Claimant from the Claimant’s partial laminectomy on September 25, 1985, which was necessitated by a ruptured L-5, S-l disk on the left side. After reviewing the record, Dr. Gleason formed an opinion which he gave in writing as Respondent’s exhibit no. 2. Exhibit no. 2 made clear the fact that the review of the data from the earlier surgery did not alter Gleason’s opinion expressed in his independent medical examination on August 19,1993. In the second deposition, Gleason testified that Claimant’s occasional mid- and low-back pain may be linked secondarily to the fan cover incident.

Claimant waived briefing.

The evidence in this case established that an accident occurred which caused physical injury to the Claimant as a result of an instrumentality that is under the control of the State. This Court has repeatedly held that the State of Illinois owes a duty to inmates of its penal institutions to provide them with reasonably safe conditions. (Reddock v. State (1978), 32 Ill. Ct. Cl. 611; Thomas v. State (1987), 40 Ill. Ct. Cl. 188, 190.) When an injury has been caused by something under the management of the State, and the injury is one that, in the ordinary course of events, would not have happened if the State had exercised proper care, the accident itself affords reasonable evidence, in the absence of an explanation, that the accident arose from the State’s want of due care. (Thornton v. State (1993), 45 Ill. Ct. Cl. 272, 275.) This would be particularly true when the State has notice of potential defective conditions that could cause an injury. (See Thornton, supra, p. 275.) In Holt v. State (1990), 43 Ill. Ct. Cl. 195, a window fell on the Claimant’s hand, severing a finger. The claim was based on the theory that the prison guard’s knowledge of the use of a stick to prop the window open created liability on the part of Respondent. This Court pointed out that it has been previously held that the State owes a duty to inmates of its penal institutions to provide them with safe conditions under which to perform their assigned work. (Reddock v. State, supra; West v. State (1977), 31 Ill. Ct. Cl. 340; Spears v. State (1985), 37 Ill. Ct. Cl. 164.) This Court concludes that the State owes a duty to inmates to provide them with a safe place to live.

The evidence in this case establishes that the fan is a permanently mounted fixture out of the normal reach of inmates to provide air movement in the area where the inmates eat. The evidence adduced by the State established that the guards in charge of the area were aware that inmates attempt to remove the covers from these fans with the use of broom or mop handles, so that weapons can be made from the metal in the covers. Inspections were said to be conducted daily.

In the case at bar there is absolutely no evidence that the Claimant in this case was involved in any effort to remove the cover, but was simply present in the dining room, unluckily beneath the area where the fan was located. The evidence is undisputed that the fan cover fell causing injury to Claimant’s back. There is also no doubt that the fan cover would not have fallen from its position on the fan had there not been damage done to the fan by the actions of other inmates. Apparently Respondent seeks to avoid liability in this case on the theoiy that, since the fan cover would not have fallen but for the illegal and destructive acts of inmates generally, the State should not be held hable when the fan cover falls, striking an otherwise innocent inmate.

It is the finding of this Court that the State is hable for Claimant’s injuries sustained in this accident. The instrumentality causing the injury to Claimant’s “upper lower back” was within the control of Respondent, and this injury would not have occurred if the fan cover had not been loose, thereby allowing it to fall on the Claimant.

A more difficult question for the Claimant exists in the measure of Claimant’s injuries.

Claimant would have this Court believe that the 1985 surgery undertaken by Claimant was a complete success and left Claimant with no symptoms whatsoever relating to his back. He would have this Court believe that all of the symptoms which he now claims to endure are related to the injury caused by the fan cover falling on his back. Unfortunately, the expert testimony of Dr. Gleason in two separate evidence depositions establishes clearly that any symptoms of which Claimant complains at the present are related to the earlier laminectomy and not any injury sustained in the accident which gives rise to this claim. The most that Dr. Gleason would say in respect to symptoms reasonably related to the injury caused by the fan cover is that Claimant may feel mild discomfort from time to time as a result of the scar tissue in the area of the location where the Claimants back was struck. The examination given by Dr. Gleason to the Claimant was exhaustive and was negative in the sense that Gleasons findings were all within normal range. The medical evidence does not support Claimants contentions respecting the symptoms from which he now contends he suffers. Despite the fact that the injury sustained by Claimant is relatively minor, Claimant is entitled to an award of damages.

We find that Claimant is entitled to an award of $2,500.

It is therefore ordered, adjudged and decreed that Claimant is awarded two thousand five hundred and no/100 ($2,500) dollars in full and complete satisfaction of this claim.


author: Frederick, J.

text:
    (No. 87-CC-3545
    Melvin Williams-El, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 2, 1999.

    Robert M. Hodge, for Claimant.
    Jim E. Ryan, Attorney General (Mark E. McCullough, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This cause comes before the Court on Claimant’s second amended complaint which was filed on April 4, 1995. Claimant, an inmate of the Illinois Department of Corrections, alleged that on March 12, 1987, Captain Rosen canceled Claimant’s sick pass. Claimant attempted to have Captain Rosen allow him to see the eye doctor but Claimant’s request was refused. Claimant further alleged that he then set a small fire in front of his cell to try to secure the attention of the superintendent of the cell house to Claimants situation. Claimant was then maced by Captain Bosen. Claimant seeks compensation of $5,000 for the deprivation of medical care and for being maced, all of which allegedly caused pain and suffering to Claimants eye. The cause was tried before Commissioner Ufkes.

The Facts

Pursuant to a request for admission of fact, the Respondent admitted the following facts:

That the Claimant, Melvin Wilhams-El, register no. A-01181, was at all times mentioned in the second amended complaint, a prisoner of the State of Illinois and in the care and custody of the Illinois Department of Corrections. Claimant was confined to the Pontiac Correctional Center, Pontiac, Illinois, and housed in the north cell house. Pontiac Correctional Center is a maximum security institution and is operated under the laws of the State of Illinois. The State of Illinois is the sole owner of the grounds, buildings, and other tangible property that make up the Pontiac Correctional Center. The State of Illinois is the ultimate employer of the security and administrative employees of the Illinois Department of Corrections and the employees are acting as agents and/or servants of the State of Illinois in their official duties as employees of the Illinois Department of Corrections.

Between March 3 and March 7, 1987, Claimant was prescribed both eye drops and Tylenol #3 by medical personnel of the Pontiac Correctional Center for a medical condition involving Claimants right eye. Claimant had a prescription for dark glasses while incarcerated at Pontiac Correctional Center and Claimant was to see an eye doctor for problems with his right eye. Claimant was scheduled to see an eye doctor on March 12, 1987, by medical personnel of the Pontiac Correctional Center.

On March 12, 1987, the Pontiac Correctional Center was under lockdown conditions, which had no relation to Claimant’s medical condition. Captain Bosen held the rank of captain. Claimant started his cell on fire. Claimant was subjected to a burst of “mace.” Captain Bosen, who was acting in his official capacity as an agent and/or servant of the State of Illinois and employee of the Illinois Department of Corrections did, on March 12,1987, write an “Inmate Disciplinary Beport” against the Claimant, which reflects the fact that Claimant was “maced” while locked within his cell.

Claimant testified at trial that about a week before March 12, 1987, he was having pain in his eye and blurred vision. He went to the hospital and saw an eye doctor who filled out a special pass for Claimant to have dark glasses. Claimant was to see the doctor again and Claimant had a pass which allowed him to see the doctor even if the institution was on lockdown. Claimant had been told he had a detached retina. The night before he was to see the doctor, the prison was put on a routine, institutional lock-down. Claimant learned the lockdown would be for three or four days. Normally during a lockdown, all medical appointments are canceled. Claimant discussed the situation with a sergeant and asked to speak to a lieutenant or captain so he could keep his doctor’s appointment. The captain arrived and Claimant gave him the pass. The captain refused to allow Claimant to leave his cell because Claimant was not dying or bleeding to death. The captain said, “You won’t be going today,” and tore up the pass. Then, Claimant requested to see the superintendent. The captain said the superintendent was not in and so Claimant asked to see the warden. Subsequently, Claimant tore some papers out of a magazine, balled them up, set them on fire, and threw the burning pages in front of his cell. Claimant believed that this action would bring the superintendent to his cell. The superintendent did come to Claimants cell with the captain. Claimant explained the problem to the superintendent and showed him the copy of the pass the Claimant had retained. The captain stated he did not believe Claimant and asked to see Claimants eye. When Claimant walked up to the bars of his cell and took his glasses off to show the captain his right eye, the captain pulled his mace out and sprayed Claimant in the face with the mace through the bars. The captain then cuffed Claimant and indicated Claimant was going to segregation. The superintendent said the captain shouldn’t have done that and had Claimant seen by a doctor before Claimant was sent to segregation. Doctor Ah refused to treat Claimant before he was sent to segregation because Claimant had set a fire.

Claimant had been incarcerated for 22 years and was not sure when he started having eye problems. He had been seeing prison doctors four or five years for treatment of his eye. Claimant testified that since being maced, he has lost all the vision in his right eye. Claimant has had problems with his balance due to his loss of vision. He also has problems reading.

Incident reports by Captain Bosen indicate that when they tried to put out the fire, Claimant threatened them with a wooden stick. Claimant denied that such activity took place. Claimant also denied the allegation in Correctional Officer Bush’s report that Claimant wouldn’t take sick call and refused to come out of his cell and was, therefore, maced.

Claimant eventually had surgery in May of 1987 for his detached retina and the retina was repaired. Claimant started losing his sight a couple of years after the surgexy. Claimant believes the macing played a part in Claimant losing complete vision in his right eye.

Dr. George Castrovillo testified for the Respondent. He was a family practitioner and not an ophthalmologist. The medical records of Claimant indicate Claimant had a medical history of eye problems dating back to 1975 when he suffered a detached retina. Claimant had a second retinal detachment in 1981. Claimant received ongoing treatment and observation for glaucoma and a cataract in the right eye since 1981. Claimant had a cataract in his right eye prior to March 12, 1987. The medical records indicate Claimant had surgery in May, 1987. Claimant noticed the loss of vision in his right eye on May 15,1987. Prior to May 15, 1987, Claimants visual acuity was only 1/200 in the right eye. On May 15, 1987, Claimant noticed loss of vision in his right eye unaccompanied by any recent trauma.

The medical records also indicate Claimant saw Dr. Ah on March 12, 1987, at 10:50 a.m. The medical note indicates Claimant was in no acute distress. Dr. Castrovillo further testified that he has never known of mace to cause blindness and that mace would not have any permanent effect on the eyes. Mace causes an irritation to the eyes that stings. Usually within a day, the effects are resolved. Dr. Castrovillo also stated that he doubted that the mace would have aggravated Claimant’s eye condition or caused blindness to Claimant.

Correctional Lieutenant Patrick Riley testified that if an inmate set a fire and then was threatening or belligerent, the use of mace on the inmate would be appropriate. Starting a fire, even in front of one’s cell, is a serious violation of institutional rules.

The Law

Claimant makes two claims. The first claim is that he was denied adequate medical care by Respondent because the Respondent’s agent refused to allow him to keep his doctor’s appointment. The second claim is that Captain Bosen committed a battery on Claimant by his excessive use of force in macing Claimant.

Allegations of failure to provide reasonable medical care and treatment are allegations of medical malpractice. (Moore v. State (1988), 40 Ill. Ct. Cl. 254.) To prevail on a medical negligence action, the Claimant must prove, by a preponderance of the evidence, the standard of care by which Respondent’s conduct is to be measured, that Respondent deviated from the standard of care, and that Respondent’s deviation was a proximate cause of Claimant’s injury. (Whitehead v. State (1998), 50 Ill. Ct. Cl. 287.) Allegations of improper medical care must be proven by expert testimony and the Court may not conclude on its own what is or what is not appropriate medical care under the circumstances of the case without the aid of such expert testimony. Tackett v. State (1993), 45 Ill. Ct. Cl. 334.

The Claimant must also prove his damages by a preponderance of the evidence and often expert testimony is required to prove damages. (Harris v. State (1989), 41 Ill. Ct. Cl. 184; Dye v. State (1996), 48 Ill. Ct. Cl. 452.) In this case, Claimant presented no expert testimony. Claimant has failed to meet his burden of proof of establishing the standard of care, a deviation of the standard of care, and that such deviation was a proximate cause of his injury. There was no evidence presented by Claimant to prove that missing his doctor’s appointment on March 12, 1987, caused him any injury. There certainly was no evidence before the Court that proved that Claimant’s eye condition was aggravated by the failure of Respondent’s agent to allow Claimant to see the doctor on March 12, 1987.

Claimant’s claim regarding the macing is a much closer case. The Respondent failed to call any witnesses to directly rebut the testimony of Claimant as to the factual circumstances of the macing. However, even considering all of the testimony of Claimant and even assuming Captain Bosen to be the intemperate cretin Claimant makes him out to be, the Court must consider that Claimant intentionally set a fire in the cell block. This fire, however small, could have endangered Claimant, guards, or other inmates. Additionally, such action could have caused a serious security problem if not stopped immediately. Claimant admits he set the fire. Based on all of the evidence, we cannot say that Respondent was guilty of negligence or excessive force in using mace on Claimant while Claimant admitted setting a fire within the cell block. Simmons v. State (1991), 44 Ill. Ct. Cl. 304.

Additionally, Claimant has failed to prove the damages he claims from the mace by a preponderance of the evidence. Claimant failed to present any evidence that the mace aggravated his eye condition or caused the blindness in his right eye. The only evidence before the Court was that the mace did not aggravate the eye condition or cause blindness. While the Court would have given more weight to Dr. Castrovillo s testimony if he had been a specialist in diseases or conditions of the eye, we do give his testimony some weight because he was a doctor licensed to practice medicine and had been a doctor for over 35 years. His testimony was the only medical testimony before the Court and his testimony did not support Claimants claims.

Claimant has failed to meet his burden of proving the Respondent used excessive force and has failed to prove his alleged damages by a preponderance of the evidence. For the foregoing reasons, it is the order of the Court that Claimant s claim be and hereby is denied.


text:
    (No. 88-CC-0839
    Ava Bowley, Claimant, v. The State of Illinois, Respondent.

      Order filed July 19, 1999.

    Harvey L. Warner & Assoc. (Jonathan Warner, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Edward C. Seward III, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, C.J.

This cause coming on to be heard on the Commissioners recommendation after hearing, the Court being fully advised in the premises, the Court finds:

This matter comes on to be heard on the claim of Ava Bowley for personal injuries sustained by her due to the alleged negligence of the State of Illinois by and through its agents and employees at the Illinois Department of Transportation (IDOT) in maintaining one of its roadways. Claimant seeks compensation for injuries based upon her theory that a dangerous condition or “defect” existed upon the side of the Kennedy Expressway at or near its intersection with Mannheim Road in Cook County, Illinois.

On October 8, 1986, the Claimant was working as a “flagman” or “flagger” for her employer, McDonough & Associates, pursuant to her employer’s contract with IDOT for the surveying of the Kennedy Expressway. A flagger is required to face oncoming traffic wearing a reflective vest and utilizing a flag to alert the oncoming traffic that another work associate is working further up the roadway. She had performed her job for two days prior to the accident without incident.

On October 8, 1986, Claimant was working with Paul Kuehnlenz on the south side of the westbound lanes of the Kennedy Expressway at or near the Mannheim Road overpass in Chicago, Illinois. Claimant was facing oncoming traffic and walking backward in a westbound direction, i.e., to her right was the shoulder and retaining wall and to her left was live traffic. Claimant was between the oncoming traffic and Mr. Kuehnlenz, who was doing the surveying work. As she was walking backward, Claimant fell into an uncovered rectangular drain outlet or sewer cover. The cover or drain outlet was either broken, missing or both. Claimant admitted that nothing obstructed her view of the open hole, such as leaves or garbage, and that the reason she could not see the open hole was that she was walking backwards. However, Claimant "contended she was necessarily following orders in walking backwards as Kuehnlenz’s flagger.

Claimant fell all the way into the hole and was held up by her armpits. She pulled herself out and was then helped by Kuehnlenz to the Resurrection Immediate Care Facility. She was examined and treated conservatively. She was not diagnosed with any fractures and was released to the care of her family physician, Dr. Enoch Prasad. Subsequently, and over the next two years, she continued to be treated by Dr. Prasad and she was hospitalized at South Suburban Hospital for dehydration and severe pain symptoms. Claimant submitted medical bills in excess of $30,000 attributable to her injuries.

Claimant also asserted that she lost two years of wages, but did not offer a specific figure. Respondent adduced evidence that indicated that Claimant chose not to work at certain points during the two year recovery period, and that she resigned from her position at McDonough & Associates in November of 1987.,

By all accounts, the hole was plainly visible to a person who would have been walking facing forward and who was walking without their attention being distracted. Neither Claimant nor IDOT presented evidence of prior notification or complaint of a missing or broken sewer cover in the general area. IDOT had posted signage prohibiting the use of its highways by pedestrians at or near the area of Claimants fall. Respondent pled an affirmative defense asserting that the Claimant had breached her duty to use due care and caution for her own safety.

In order for a Claimant to recover for the injuries suffered, the Claimant must prove, by a preponderance of the evidence, that such a dangerous condition or defect existed and the Respondent had actual or constructive notice of it. (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225.) In addition, a Claimant bears the burden of proving by a preponderance of the evidence that the State is negligent in its duty to maintain the roadway in question, and that the States negligence proximately caused Claimants injuries. (Skinner v. State (1975), 31 Ill. Ct. Cl. 45.) Conversely, the State has a duty to exercise reasonable care in maintaining its highway so that defective and dangerous conditions do not exist. (Baran v. State (1974), 30 Ill. Ct. Cl. 162.) In addition, the Claimant must also prove that aforementioned duties apply to pedestrians who are utilizing the State’s roadways for work purposes and that she, as a pedestrian, utilized due care in undertaking her duties.

In analyzing the present claim, it is clear that the threshold question that must be answered is whether the State had actual or constructive notice of the open outlet drain or sewer, and failed to take reasonable steps to correct or warn of the dangerous condition. It is uncontroverted that any injuries sustained by the Claimant occurred as a result of falling into the open outlet drain.

The Claimant has failed to sustain her burden of showing that the State had actual or constructive notice of the open drain outlet. There is simply no evidence submitted that the State had actual notice of the open outlet drain through complaints or otherwise to IDOT or any other entity of the State.

Claimant asserts that the State had constructive notice since IDOT’s contractual relationship with McDonough & Associates obligated IDOT to inspect the area to determine the condition of the roadways wherein Claimant was to be working. Thus, Claimant asserts, the State’s failure to fulfill its duly to inspect establishes constructive notice. We find no support in fact or in the case law to support this contention.

Whether the State had constructive notice depends on the facts of each case. (Scroggins, 43 Ill. Ct. Cl. 225, 227.) It must be shown that the defect was substantial enough and must have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made or, in the alternative, that warning signs should be posted. (Stege v. State (1971), 27 Ill. Ct. Cl. 399.) Here, in part because pedestrians were normally prohibited from the area where Claimant fell, there is no testimony from prior users of the area or State employees patrolling the area as to the substance of the defect, which would give the State constructive notice.

Even if the State had a duty to inspect pursuant to its contract with McDonough, the Claimants failure to take due care for her own safety would defeat her claim. By walking backwards for a long stretch, she placed herself in danger unnecessarily. Cross-examination of Claimant (and other witnesses) established that (1) she could easily have turned at intervals to inspect the area where she was walking; (2) because she was walking backwards was the only reason she did not see the outlet; and (3) the route of her work could have been reversed to allow her to walk facing forward, thus viewing where she was to be walking. These reasonable measures were not undertaken despite their common sense safety implications.

Claimant has failed to meet her burden of proof.

It is therefore ordered that this claim is dismissed and forever barred.


text:
    (No. 88-CC-0985
    George O. Guy, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 19, 1999.

    Manchik & Romaker (Craig L. Manchik, of counsel), and Levin & Perconti, for Claimant.
    Jim E. Ryan, Attorney General (Edward C. Seward III, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This cause comes before the Court after trial before a Commissioner of a tort claim filed by Claimant for damages arising out of Claimants operation of a motorcycle on September 7,1987, on Route 20 (Lake Street) in Rartlett, Illinois. Claimant alleges he struck a bump in the roadway causing him to crash resulting in severe injuries to Claimant.

The principal issues are (1) whether the Respondent had actual or constructive notice of a dangerous or unsafe condition; (2) whether the bump in the road was a dangerous or unsafe condition; and (3) whether this condition was the proximate cause of Claimants injuries.

On September 7, 1987, a warm and sunny day, Claimant was riding his 1985 Yamaha Ventura motorcycle in a westerly direction in the right hand lane on Route 20 in the Village of Bartlett. The Claimant was driving within the speed limit. As he entered a curve, the Claimant hit possibly two, three or four cracks in the road. Claimants handle bars starting shaking. Claimant then claims he struck a raised bump in the road which caused him to lose control of his motorcycle and crash onto the pavement.

The Claimant and the Respondent stipulated that Claimant’s injuries from the collision included but were not limited to a fractured skull, a comminuted fracture of his left clavicle, a fractured fourth left rib, a severe facial laceration and multiple severe abrasions of the shoulder and thorax. Claimant required surgical repair of his lacerations and management of his fractures. Claimant has multiple scars and other permanent injuries as a result of the incident. The parties stipulated that the medical expenses for Claimant totaled $9,140.75. Claimant lost wages as a lineman for Commonwealth Edison from September 8, 1987, to November 17, 1988. He earned approximately $42,000 a year.

Claimant had traveled this road previously and not noticed the alleged defect prior to September 7, 1987. While Claimant recalls riding over crevices or splits in the road which looked like cracks, he does not recall the bump. Immediately before the incident, Claimant got up off his seat to stand and allow his legs to act as shocks while he drove over the cracks. Claimant was informed by his doctors that as a result of his skull fracture and other injuries, he would not have a memory of the incident.

Walter Guy, Claimants brother, was riding his motorcycle approximately 50 yards behind Claimant in the left lane of westbound Route 20. He testified that he saw approximately two, three or four cracks that extended across the two westbound lanes of Route 20. The incident occurred where Claimant drove over the cracks. It appeared that his brother then hit a bigger bump that caused his bike to go up into the air, its handlebars shaking and Claimant going over the handlebars head first. Two photographs of the cracks were admitted into evidence. However, the record is unclear as to whether the photographs were taken two months or two years after the incident. No photograph of the bump was produced.

He testified that following the incident he went back to the scene to look at the bump. He placed his foot up against the bump and measured it as three inches in height. The bump was the same color as the pavement and extended across the westbound lanes.

Carlton Perry, a patrol officer with the Village of Bartlett testified that he was the investigating officer at the scene of the incident. Officer Perry determined that Claimant struck a raised expansion in the roadway which caused his accident. The raised expansion extended across the westbound lanes of Route 20. Officer Perry believed that rise in the pavement was approximately one and one-half inches. Officer Perry never measured the bump.

Approximately three days before Claimants incident, Officer Perry was on a routine vehicle patrol in the area of the incident. Officer Perrys front tires struck something in the roadway which caused him to turn around and examine the road. Officer Perry noted there was an expansion joint raised up approximately one to one and one-half inches above the surface of the roadway. The officer felt this was a dangerous condition so he contacted his dispatcher and advised the dispatcher to contact the State Highway Department about the condition. Officer Perry believes the Claimant struck this rise. Officer Percy has no knowledge whether the dispatcher ever contacted the State Highway Department.

Gerald Zielinski who was a team section technician in St. Charles for the Illinois Department of Transportation testified that in January 1988, he received a memorandum asking him to investigate the scene where the Claimant sustained his injuries. Zielinski never before received an inquiry for this location. The memorandum was admitted into evidence and contained hand-written responses from Zielinski.

“Q.(l) Were we aware of pothole or any other type of roadway hazard at the above location prior to the date and time of this accident?
Response: No, not immediately prior. There was a bump where the Bit. (Bituminous) surface and concrete surface meet, but this was burned and planed off previously that year.
Q.(4) If this is the facility’s first notification of this defect, please make a field inspection and advise us of your findings.
Response: Area inspected on 1-21-88 - No Defect Found.
Q.(5) Is the roadway in question inspected on a routine basis? If so, please advise when the roadway was last inspected prior to the date and time of this incident.
Response: Roadways are inspected in the Spring and then (3) times a year by the Mowing Crew - any major defects noted are then repaired or scheduled for repair.”

With respect to question (1), Zielinski believes the term “not immediately prior” probably means not within the last couple of months. Zielinski testified that a burning and planing of that area occurred in 1982 or 1983 and a planing occurred again either before Claimants incident or after the incident. Burning to cure defects was the process in 1982-1983, however, planing procedures' were used in 1987 to correct bumps.

Although no actual records were located by Zielinski (they may have been thrown away), he does recall a call coming in to the communication center regarding a bump on Route 20 prior to January 22, 1988. However, there was no testimony as to when the call came in, what was done or where the bump was actually located. Zielinski also testified that the second repair may have been part of general maintenance over an area from Naperville Road to Rluff City Roulevard. Approximately 30 areas were shaved at that time.

The Respondent provided testimony of Dror Kopernik, an expert witness from Triodyne Consulting Engineers. Kopemiks testimony and video tapes he produced were the subject of motions to bar and motions in limine. Claimants counsel contends that Kopemik testified at his deposition that all of his opinions with respect to this matter were based on the assumption that Claimant stmck a depression below the road surface. Then, less than 60 days before trial, the Respondent provided amended answers to interrogatories indicating that Kopemik changed his opinions. The Claimant claims the Respondent violated 111. Sup. Ct. Rule 213 and has now prejudiced the Claimant.

The Respondent contended that their expert did not change his mind or testimony. They contend that Kopernik testified in his deposition as to Claimant striking both holes and bumps. Further, at the deposition the witness produced video tapes about the effects of motorcycles driving over raised bumps. In addition, the Respondent claims that Kopemiks opinions have not changed since his deposition.

While both Claimant and Respondent were provided leave to submit briefs on the issues, no briefs were filed with the Court.

The tapes Claimant seeks to bar provide images of an individual driving a motorcycle over pieces of wood of varying size. Claimant asserts that one tape was made after Kopemik s deposition. Neither tape involves the same type of motorcycle driven by Claimant, the same road surface or the same type of stationary bump encountered by Claimant.

While the tapes do not actually depict the identical conditions or type of bump, the tapes do not prejudice Claimant. The probative value of the tapes exceed any alleged prejudice to the Claimant. No evidence was brought by the Claimant that a movable bump (piece of wood) would show different effects to a motorcycle as opposed to a stationary bump. In addition, no evidence was brought by the Claimant to establish different effects from different motorcycles. The tapes are admitted into evidence, as is the testimony of Kopemik.

Dror Kopemik testified that how a motorcycle reacts to a bump depends on the relationship between the diameter of the wheel and the bump driven over and the condition of the motorcycle. The larger the tire size, the easier it is to drive over certain size bumps.

The witness tested motorcycles going over different size bumps. While you feel the bump when you ride over it, there is little interference with the handlebars. Kopernik stated that the results did not depend on whether the tests were done in a parking lot or a highway, or if on concrete or asphalt, or if the bump was affixed or not, or on the model or brand of motorcycle tested. The one and one-half inch bump should not have any adverse effect on a motorcycle. Although a three-inch bump is felt more by a rider, it should also not adversely affect the motorcycle.

The witness concluded that the alleged bump did not cause Claimants accident. Unexplainable vibrations threw the Claimant off his motorcycle. The fact that the Claimant braced himself by standing on his pegs and raised off his seat so he would absorb the shock supports the witness’ conclusion that the bump should not affect the control of the motorcycle.

The Respondent is not an insurer of all persons traveling on its highways. (Toliver v. State (1994), 47 Ill. Ct. Cl. 55, 59.) However, where a dangerous condition on a State highway exists, and a person using the highway suffers an accident involving the condition, that person must prove, by a preponderance of the evidence, that such dangerous condition existed and that the Respondent had actual or constructive notice. Id. The Claimant also must prove that the Respondent’s negligence was the proximate cause of the injury, and that the Claimant was in the exercise of due care and caution for his own safety. Graves v. State (1983), 36 Ill. Ct. Cl. 76, 78.

For a finding of negligence, there must be a duty on the part of the Respondent. It is the duty of the Respondent to exercise reasonable care in the maintenance and care of its highways in order that defective and dangerous conditions likely to injure persons lawfully on the highways shall not exist. (Allen v. State (1984), 36 Ill. Ct. Cl. 242.) The exercise of reasonable care requires the Respondent to keep its highways reasonably safe. (Allen, 36 Ill. Ct. Cl. at 244.) If the highways are in a dangerously defective condition and therefore not reasonably safe and the Respondent is on notice of such condition, the Respondent is negligent if it does not notify or warn the public of such condition. Id. “The Court has never held that all State roads must be bump free. To hold that they must, would be to make the State an insurer.” Id.

Claimant has failed to establish that the Respondent had actual or constructive notice of the alleged defect. The fact that Officer Perry noticed a one to one and one-half inch rise in the pavement approximately three days before Claimant’s incident, as opposed to Walter Guy’s testimony of a three-inch bump, fails to show actual or constructive notice. No evidence was presented that the alleged defect was actually reported to the Respondent. The evidence shows that repair work was performed in 1982 or 1983 and again sometime within a year before the occurrence. However, the second repair may have been pursuant to a general maintenance schedule for that area. The evidence shows that the affected area was repaired within a year before the incident, and the record fails to establish that any actual notice was given to the Respondent thereafter of any defect. The evidence presented does not support a finding of constructive notice. Because we find that the Respondent did not have notice of the defect, it is not necessary to determine whether the defect actually existed.

Claimant has failed to meet his burden as to proximate cause. The Claimant’s failure to establish either actual or constructive notice of a dangerous condition precludes recovery in this matter.

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


text:
    (No. 88-CC-3521
    Elizabeth Rush, Individually and as Special Administrator of the Estate of Sandra Rush, Deceased, Claimant, v. The State of Illinois, Respondent.

      Order filed July 19, 1999.

    Artery & Haspel (Deborah G. Haspel, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Edward C. Seward III, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, C.J.

This cause coming on to be heard on the Respondent’s motion for summary judgment, the motion having been fully briefed, and the Court being fully advised in the premises, the Court finds:

1. Claimant filed a two count complaint alleging that on October 30, 1985, Michelle Rush and Sandra Rush were placed in the custody of their father, Rrian Rush, pursuant to a judicial order entered upon the recommendation of a caseworker of the Respondent’s Department of Children and Family Services (DCFS). The complaint further alleges that numerous calls were made to DCFS between October 30, 1985, and April 3, 1986, to report deplorable and dangerous conditions existing in the home of Brian and the apparent abuse and neglect of their children. One John Hemmer is alleged to have lived in the house, and to have brutally beaten Sandra Rush to death on April 3,1985.

2. The thrust of the complaint is that the Respondents DCFS negligently failed to investigate the numerous allegations of abuse, negligently investigated the allegations of abuse and negligently failed to remove the children from the deplorable and dangerous conditions in which the children were living.

3. The record in this case demonstrates that Respondent is entitled to summary judgment as a matter of law. There are no genuine issues of material fact.

4. Our decision in Rapp v. State (1998), 51 Ill. Ct. Cl. 72, controls the disposition of this case. In Rapp, as in this case, the child was not in the custody of DCFS. The child was in the custody of his mother by order of the circuit court. The child died. We found that:

"In the present case, it is undisputed that at the time of decedent’s death, the Department of Children and Family Services did not have custody or guardianship of the decedent. The child’s mother, pursuant to the Court’s orders, had custodial duties with specific responsibilities as ordered by the Court. Therefore, no duty to Claimants' decedent can be placed on DCFS predicated on guardianship or custody status.
Claimants argue that Respondent had a duty to investigate child abuse and make its report to the Court. Claimants argue the breach of duty was when the investigator failed to request the guardianship and custody status at the Court hearing. The uncontradicted facts before this Court are that the investigator investigated and made a report. He further testified at the Court hearing to everything that was in his report. There are no allegations of malice on the part of the investigator. (Lehmans v. State (1991), 44 Ill. Ct. Cl. 178.) The circuit court judge entered the order continuing the case under supervision and it was the child’s mother's actions or inactions that led to the death of her child.” Rapp, 51 Ill. Ct. Cl. at 81.

5. DCFS substantiated three of the five claims, but determined that the situation was not serious enough to warrant removal of the children from the fathers home. There is no malice alleged on the part of the investigator. The fact that Hemmer, who babysat on two occasions, committed a horrific crime does not establish negligence as a matter of law.

6. While we have great sympathy for Claimant, we are constrained to deny the claim.

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