author: Montana, J. Montana, J.

text:
    (No. 83-CC-0154
    Duffie S. Clark, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 2, 1984.

      Order on motion for extension of time to file petition for rehearing filed October 24, 1984.

    Duffie S. Clark, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Montana, J.

This is a claim brought by Duffie S. Clark (Claimant), a resident of Stateville Correctional Center, alleging dental malpractice as a result of dental treatment received by him at the correctional center.

On January 4, 1982, Claimant went to the dental clinic at the correctional center complaining of intense pain from a lower left wisdom tooth. That tooth had a sharp edge which penetrated his upper gum when he closed his mouth or ate and caused his gums to swell. This condition had existed for two days prior to his visit to the clinic.

At the clinic a dentist on duty, one Dr. Albertson, Xrayed the tooth and advised Claimant that it had to be removed. After giving Claimant an anesthetic, Dr. Albertson attempted to extract the tooth, which apparently fractured in Claimant’s gum. Dr. Albertson worked on Claimant’s tooth for IK to 2 hours and then told him to come back for examination a few weeks later.

Claimant then went back to his unit and went to sleep. When he awakened, he noticed that a piece of the tooth was protruding from his gum. This condition caused Claimant intense pain and discomfort continuously until his next appointment with Dr. Albertson on January 18,1982.

When he next visited Dr. Albertson on January 18, 1982, an X ray was taken of his tooth. Claimant was told that the sharp edge he felt and pain he was experiencing was due to a sequester, a dead portion of bone, which remained in his gum. He was advised by Dr. Albertson that this would loosen and fall out on its own. Although he requested some pain reliever, he was not given anything and instead was rescheduled for another appointment.

By January 20, 1982, Claimant was experiencing such severe pain that he obtained an emergency dental pass and went back to the clinic. He was examined by Dr. Verde at the clinic. Claimant informed Dr. Verde that he felt a piece of tooth protruding from his gum. Dr. Verde took another X ray of Claimant, and told him that it was just a piece of bone which, when it came loose, could be “flicked” out by Claimant. Dr. Verde prescribed Tylenol 3 for pain.

Two days later, still suffering from intense pain, Claimant went back to the clinic and was seen by Dr. Fleichman. Claimant told Dr. Fleichman that there was a piece of tooth protruding from his gum which was causing him pain. Dr. Fleichman cleaned Claimant’s gum, packed it with gauze, and prescribed penicillin to alleviate the swelling.

On January 27, 1982, Claimant made yet another trip to the clinic where he was again examined by Dr. Verde. Dr. Verde X-rayed the tooth and told Claimant he was fine. When Claimant told Dr. Verde again about the piece of tooth protruding from his gum, Dr. Verde used an instrument and probed Claimant’s gum. He acknowledged that there was something in the gum and tried to pull it out. When Dr. Verde could not extract the remaining piece, he broke it off, leaving still another piece in the gum. Claimant was then again told he was fine and he left.

From January 27,1982, to March 30,1982, Claimant contined to experience intense pain, which caused him not to be able to work, eat or sleep. On February 16, 1982, he wrote a letter to the hospital clinic coordinator regarding his tooth. He received no response. Throughout this period of time, Claimant’s jaw was swollen and he continued to take penicillin.

It was not until March 30, 1982, when Claimant obtained another emergency dental pass that surgery was performed and bone fragments in the gum were removed. Claimant endured almost three months of unnecessary suffering until this surgery was performed. Claimant thereafter received follow-up care at an oral surgeon in Joliet, and made several trips to this oral surgeon from April 6,1982, through April 19,1982.

No expert dentist testified on behalf of Claimant. Ordinarily, it is necessary for a claimant in a malpractice action to establish by expert testimony that the physician or dentist was negligent in his treatment and that the injuries suffered by the claimant were a result of that negligence. Piacentini v. Bonnefil (1966), 69 Ill. App. 2d 433, 440, 217 N.E.2d 507; Graham v. St. Luke’s Hospital (1964), 46 Ill. App. 2d 147, 156, 196 N.E.2d 355.

An exception to that rule has been established in cases of so-called “common knowledge” or “gross negligence” where the physician’s or dentist’s conduct is so palpably negligent or the treatment is so common that a layman could readily appraise it without expert testimony. Lundahl v. Rockford Memorial Hospital Association (1968), 93 Ill. App. 2d 461, 235 N.E.2d 671; Scardina v. Colletti (1965), 63 Ill. App. 2d 481, 488, 211 N.E.2d 762.

Here, we believe that the Court can infer negligence on the part of the dentists who treated Claimant because the unrebutted testimony of Claimant establishes negligence so palpable that expert testimony was not necessary. Even a layman could infer from Claimant’s testimony that the extraction was not complete, that a piece of tooth remained which should have been removed, and that had it been totally removed, as it should have been, Claimant would not have had the injury and experienced the pain he suffered. Accordingly, under these limited circumstances, we find that Claimant established a prima facie case of negligence.

Moreover, in finding the dentists negligent, we do not rely exclusively upon the permissible inference to be derived from Claimant’s testimony under the so-called “gross negligence” or “common knowledge” exceptions described above. We also rely upon the inference to be derived from Respondent’s total failure to call as witnesses any of the treating dentists or to present any evidence at all to rebut Claimant’s evidence. Respondent was given more than ample opportunity to do so and the treating dentists were available and under Respondent’s control. Further, Respondent did not and could not offer any reasonable explanation or excuse for its failure to present any of the treating dentists as witnesses. Under these circumstances, we are permitted to infer that had the treating dentists testified, their testimony would have been unfavorable to Respondent. Fuery v. Rego Co. (1979), 71 Ill. App. 3d 739, 390 N.E.2d 97; Berlinger's Inc. v. Beef's Finest, Inc. (1978), 57 Ill. App. 3d 319, 372 N.E.2d 1043.

Put another way, we can infer under these circumstances that the treating dentists would not have been able to contradict Claimant’s testimony as to what occurred and that they would have had no explanation for their treatment of Claimant to rebut the inference of negligence to be derived from Claimant’s testimony alone in this case. If the treating dentists had favorable evidence to offer from Respondent’s point of view, what a simple matter it would have been for Respondent to call them as witnesses. Having failed to do so, Respondent is bound by the reasonable inference that their testimony would have hurt Respondent’s cause.

Accordingly, this Court finds that Respondent’s dentists were negligent in their care and treatment of Claimant and that as a result of that negligence, Claimant was forced to undergo three months of unnecessary pain and suffering.

It is hereby ordered that judgment be and is hereby rendered on behalf of Claimant in the amount of five thousand dollars ($5,000.00).

ORDER ON MOTION FOR EXTENSION OF TIME TO FILE PETITION FOR REHEARING

Montana, J.

Respondent has moved for an order extending its time to file a petition for rehearing with respect to the judgment of this Court entered on July 2, 1984, and, assuming the Court grants such an extension, Respondent asks that the judgment be vacated due to Claimant’s alleged failure to file a notice of intent to sue for personal injuries.

The Court observed that the Claimant’s alleged failure to file a notice of intent to sue either was known or should have been known to Respondent since the time this case was commenced in this Court on August 9, 1982. The Respondent delayed bringing this alleged deficiency to the Court’s attention for over two years.

In the meantime, a full hearing was held before a commissioner. At the hearing on the merits, despite being given ample opportunity to do so, Respondent failed to produce any evidence to rebut Claimant’s testimony concerning negligence, even though the treating dentists were available to testify and were within Respondent’s control. Then, based on the hearing, this Court rendered an opinion and entered judgment in favor of Claimant. Then Respondent did not timely file a petition for rehearing within the 30 days allowed by the Court’s rules.

Because of these cumulative circumstances, the Court denies Respondent’s motion for an extension of time to file a petition for rehearing. Consequently, it is not necessary to address the alleged merits of Respondent’s petition to vacate judgment. The Court’s judgment of July 2,1984, will stand.


source: Caselaw Access Project

author: Montana, J.

license: Public Domain

text:
    (No. 83-CC-0288
    Dorothy Williams, Independent Administrator of the Estate of Benjamin Bradford Jones, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion and Order filed March 21, 1985.

    R. Corydon Finch, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Montana, J.

This claim arises out of a tragic accident which occurred on August 9, 1982, in Anna, Illinois. On that date Donald Charles Meeker was a committed patient at the Anna Mental Health and Developmental Center at Anna, Union County, Illinois. Meeker escaped unmolested and unrestrained from the grounds in a taxi, which he had called from Anna, and went to a shopping center in Anna. He promptly obtained a knife and brutally murdered a 73-year-old retired Pentecostal minister named Benjamin Bradford Jones in the shopping center parking lot.

The decedent’s daughter, as administrator, brought this action in five counts alleging that the State was guilty of negligence, or wilful and wanton conduct, in (1) permitting Meeker to escape from the Anna Mental Health Center; (2) in failing to know that Meeker had been transferred to the minimum security Anna Mental Health Center; (3) in transferring Meeker to a minimum security institution; (4) in failing to provide sufficient security for Meeker at the Anna Mental Health Center; (5) in permitting Meeker to have a “grounds pass”, thereby enabling Meeker to escape; (6) in failing to keep Meeker in a maximum security enclosure; and (7) in permitting Meeker to have access to telephone communications to aid in his escape.

Respondent argues that it owed no duty to Claimant and that therefore negligence is not an issue. Respondent fails to distinguish the case of Eichen v. State (1975), 31 Ill. Ct. Cl. 6, or Malloy v. State, 18 Ill. Ct. Cl. 137. These cases are controlling.

The Eichen case presented a claim for damages to a sawmill that was burned down by a ward of the Illinois Department of Children and Family Services. The Court found that the facts in that case supported Claimant’s contention that Respondent was negligent in failing to exercise a reasonable degree of foresight in light of Respondent’s ward’s past record of violent tendencies. In the Malloy case, Claimant was attacked in her store on November 1, 1946, by an escapee from the Illinois Security Hospital at Menard, Illinois, an institution for the criminally insane operated by Respondent. The inmate had been convicted many times of charges relating to burglary, larceny, robbery, carrying concealed weapons and murder.

After discussing the facts of the case, the Court held as follows:

The injuries and damages to Claimant hereinabove set forth were substantially caused by the Respondent’s negligence. But for the negligence the Claimant would have suffered no harm. No new element contributes to her harm additional to the existing factors of the situation under which the Respondent’s conduct we deem was negligent. The injuries suffered by Claimant could have been prevented by the duty of care which the defendant violated.

In the case at bar, the evidence makes it clear that Respondent’s agents should have known of Meeker’s dangerous propensities. The information compiled in Meeker’s file was voluminous and pointed to the conclusion that Meeker represented a real and continuing threat to persons with whom he may come in contact. Notwithstanding this information, Respondent permitted Meeker to be placed in a minimum security situation at the Anna Mental Health Center where he was permitted to obtain, and did obtain, grounds privileges and the means for effecting escape.

Information available to staff concerning Meeker’s potentially dangerous nature included the following:

1. A memorandum dated December 7, 1978, from Dr. Clarence Novak to Assistant Warden Riegel of the Department of Corrections warned that Meeker was a danger to himself and others and recommended an emergency medical transfer to Menard Psychiatric Division.

2. A Menard Psychiatric Center Program Treatment Plan dated April 12,1979, by Robert L. Andresen, a Correctional Counselor, which described Meeker as “a very dangerous young man.”

3. A Menard Psychiatric Center Quarterly Review by Robert L. Andresen, Correctional Counselor III, dated March 3,1980, which characterized Meeker as one of the most potentially dangerous persons if he were in a free society.

4. A treatment plan dated 8/22/80 by Counselor Margaret Way men stating that Meeker’s behavior was difficult to predict.

5. A certificate of examination by Dr. J.A. Pichardo dated May 23, 1981, in which Pichardo opined that Meeker was mentally ill and could be reasonably expected to inflict serious harm upon himself or another.

6. Union County Circuit Court cause 82-MH-152 In the Matter of the Mental Illness of Donald Meeker, where a petition for involuntary admission was filed May 20,1982, alleging that Meeker was mentally ill and reasonably expected to inflict serious physical harm upon himself or another in the near future.

7. A certificate of examination by Dr. C. Willsen, a psychologist, dated May 18, 1982, stating that Meeker was mentally ill and reasonably expected to inflict serious physical harm upon himself or another in the near future in that Meeker remained chronically psychotic with major thought disorders.

8. A further certificate filed May 20, 1982 by Elizabeth Auld, M.D., setting forth the opinion that Meeker was mentally ill and reasonably expected to inflict serious physical harm upon himself or another in the near future and was distinctly paranoid.

9. The testimony of Dr. David J. Warshauer in cause 82-MH-152 in the Union County Circuit Court that Meeker was a paranoid schizophrenic and that because of his mental illness, could reasonably be expected to inflict serious physical harm upon himself or other people.

In a final summary of the “unusual incident” report prepared by the Superintendent of the Anna Mental Health facility, it was concluded that Meeker’s treatment staff, at the time of the death of Benjamin Bradford Jones, were not aware of Meeker’s homicidal tendencies, notwithstanding the fact that those tendencies and past overt actions of Meeker were part of the clinical record, which was available on the unit. The staff’s ignorance of Meeker’s homicidal tendencies stemmed simply from the fact that they did not review Meeker’s record from the beginning of his hospitalization. Under these circumstances Respondent may not escape liability by suggesting that Meeker’s recent conduct was not indicative of severely dangerous propensities. There is no question that Respondent has a duty, in situations such as presented in the case at bar, to protect the public from known propensities of persons within the control of State institutions.

Based on the foregoing allegations of negligence, Counts II and IV of Claimant’s complaint sought exemplary and punitive damages against Respondent arising out of the death of Benjamin Bradford Jones. The liability of the State in this cause is founded on Illinois Revised Statutes, chapter 23, section 4041. This statute is in derogation of common law and provides the exclusive remedy available to Claimants. This act does not authorize this Court to assess exemplary and punitive damages against Respondent. Therefore Counts II and IV of Claimant’s complaint must be denied.

Count I of Claimant’s complaint sought an award of compensatory damages for pain and suffering experienced by the decedent. The Illinois Supreme Court has held in Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 436 N.E.2d 623, that an administrator may assert a cause of action for pain and suffering of the decedent even where the decedent suffered only a short time. The duration of pain and suffering affects the amount of damages, not the administrator’s ability to recover such damages.

In the instant case, evidence showed that decedent’s pain and suffering was substantial. Decedent suffered at least 30 stab wounds to the chest and neck. There were multiple wounds to the hands and arms of the decedent apparently resulting from decedent’s having attempted to defend himself against the attack. After having escaped from the vehicle in which the attack took place, decedent was heard to groan and was kicked by Meeker while decedent was lying on the ground. Decedent was conscious when medical technicians arrived on the scene and was alive in the ambulance on the way to the hospital. It was during the trip to the hospital that decedent expired. The evidence established that although decedent’s suffering was of relatively short duration, it was none the less excruciating and horrendous. The number of wounds inflicted upon the decedent’s body indicate the more than brief struggle with Meeker. It is the opinion of this Court, based upon the facts in this case, that Claimant should be awarded the sum of $25,000 compensatory damages for pain and suffering experienced by the decedent.

Count III of the complaint for wrongful death sought awards for loss of support, consortium and services. Decedent was 73 years old at the time of his death and his life expectancy was 8.9 years. At the time of decedent’s death, he was receiving $410 in monthly Social Security benefits and a pension of $200 per month from his retirement as a United Pentecostal minister. Combined with Mrs. Jones’ Social Security benefits of $202, their total monthly income was $800, all of which was used for daily living expenses. As a result of decedent’s death, the pension has terminated and, after considering the net increase received by decedent’s widow, after his death the aggregate loss of support amounts to $4,800 per year.

In addition, the evidence showed that decedent performed many household services including cleaning, washing, cooking, plumbing, carpentry and electrical repairs. It would appear that the weekly services performed by decedent could not have been performed in less than two eight-hour days per week. At an hourly value of $5.00 per hour, this amounts to $4,160 each year over a life expectancy of 8.9 years, or $37,024. This sum combined with the loss of $42,720 in real income totals $79,744.

Finally, Claimant is entitled to recover her funeral expenses in full.

Although said damages total $108,526.45 this Court is limited by section 8 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(d)), to an award not to exceed $100,000. Based upon that limitation, it is hereby ordered that Claimant Dorothy Williams, as independent administrator of the estate of Benjamin Bradford Jones, be awarded the sum of $100,000.00.


author: Raucci, J.

text:
    (No. 83-CC-0924
    William L. Betz, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 21, 1984.

    William L. Betz, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant seeks payment for the alleged conversion of his property.

The evidence of the Claimant fails to establish that the Respondent converted his property.

Claimant testified that on August 25, 1982, he was involved in an altercation with his cellmate at the Stateville Correctional Center.

Claimant and his cellmate were placed in segregation. The cellmate apparently was allowed to leave the segregation unit, and removed his personal property.

Later, Claimant received a few items of his personal property, but claims a loss of various other items. Claimant admits that it was possible that his cellmate or other inmates took his property.

Since no showing was made that the Respondent or any of its agents come into possession of the property, the Claim will be denied, with prejudice.


author: Roe, C.J.

text:
    (No. 83-CC-0987
    Allies For A Better Community, Claimant, v. The State of Illinois, Respondent.

      Order on stipulation filed June 20, 1983.

      Order in response to order on stipulation filed September 7, 1984.

      Opinion filed February 28, 1985.

    Leonard Murray, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
    Roe, C.J.

      Roe, C.J.
   OPINION

Roe, C.J.

The Claimant brought this action seeking payment of $15¿480.00 for certain services allegedly rendered to the Respondent’s Department of Public Health. In a standard “lapsed appropriation” form complaint, Claimant alleged that it made demand for payment from the agency, but that its demand was refused on the grounds that the funds appropriated for such payment had lapsed.

The parties filed a joint stipulation agreeing to our entry of an award in the amount of $12,500.00. In their stipulation the parties also agreed that a report compiled by the Department of Public Health be admitted into evidence without objection. Pursuant to Rule 14 of the Rules of the Court of Claims, such reports are prima facie evidence of the facts contained therein.

After careful review of the record, we noted in an order dated June 20, 1983, that the information contained in the departmental report raised an issue regarding the availability of funds. We made the following observations:

“This is a claim ostensibly for lapsed appropriations. From the response given to question No. 15 of the departmental report, the claim would have been paid from fund No. 063, the U.S. Public Health Service Fund. It was stated that said fund expired on September 30,1980, and 1981, and the funds are no longer available to pay this claim. We understand that the department may no longer have the legal capability to make payments out of those previous fiscal year Federal funds. Because we are unfamiliar with this particular Federal fund, we need to know whether or not, if we were to make an award in this case, there exists some procedure whereby the State can recoup the unexpended portion of those funds from those earlier Federal grants which relate to the claim at bar.”

We then put the case on general continuance pending submission of further information.

Our order elicited a response from the Respondent offering a letter from a Mr. William L. Wheeler, chief counsel to the Department of Public Health, and copies of the contracts under which this claim was made, into evidence pursuant to the aforementioned Rule 14. There was no objection to their admission. Both the response and the letter stated that the Federal grant which would have covered this billing was closed on May 25,1982. In his letter, Mr. Wheeler stated that his agency had been informed by the U.S. Department of Health and Human Services that such a late claim cannot now be paid. He also stated that he had a telephone conversation with an assistant U.S. Attorney from the Springfield, Illinois, office who apparently corroborated the position.

A subsequent order of this Court, dated September 7,1984, elicited an amended departmental report, which also is prima facie evidence of the facts contained therein. This amended report stated, inter alia, that:

1. the Federal fund from which this obligation was to have been paid was unavailable after September 30, 1981;

2. requests for payment of the claim herein were first received on November 23,1981;

3. the Federal grant of funds contained no provision for reservation of funds to pay claims received after the end of the grant period.

The report contained no explanation of the status of the grant between the September 30, 1981, availability cutoff date and the May 25,1982, date described by Mr. Wheeler as the date the grant was closed.

The case at bar is different from the usual lapsed appropriation case routinely dealt with by this Court. In the usual case, where a proper obligation of the State is not paid prior to the lapse period, the funds for payment of the obligation are said to lapse back into the State’s general revenue fund (or another State fund), i.e. the funds are still available and unspent but the authority of the State agency to spend them has ceased. A claim is then made to this Court for payment. If there was proper authorization for incurring the obligation and, but for the lapsing of sufficient funds for paying the debt, the debt would have been paid, then this Court awards the payment. In the case at bar the funds reverted to the Federal government. Not only does the State agency no longer have authority to spend them, the money is no longer available for use. In this instance, for us to make an award would be in effect appropriating State funds, which is the sole prerogative of the legislature. The facts presented are thus analogous to the line of cases in this Court wherein the claims are denied due to insufficient lapsing of funds. For those reasons we are constrained to deny this claim.

We also should point out for the record that the contracts involved herein expressly provide on the first page of the contracts that the contracts are made subject to the availability of Federal funding from the U.S. Department of Health and Human Services for the comprehensive high blood pressure control program.

Although we find, based on the Respondent’s stipulation, that the Claimant did in fact perform the services for which this claim was made, due to the unavailability of funds with which to pay it, it is hereby ordered that this claim be, and hereby is, denied.


text:
    (No. 83-CC-1486
    Dolphus Hughes, Claimant, v. The State of Illinois, Respondent.

      Opinion and order filed December 18, 1984.

    Robert M. Hodge, for Claimant.
    Neil F. Hartigan, Attorney General (Lynn Schock, Assistant Attorney General, of counsel), for Respondent.
   Montana, J.

Claimant, a former resident of Vienna Correctional Center, brought this action for personal injuries sustained by him on October 20, 1982, on the correctional center grounds when a block of ice injured his left hand.

The incident giving rise to his injuries occurred outside of the kitchen at the Vienna Correctional Center. Claimant, a 23-year-old man with no special skills and an eleventh grade education, was employed in the kitchen as a cook. On his day off, he was called into a kitchen office by Mr. Johnson and Mr. Hill, food supervisors and employees of the Department of Corrections, and ordered to unload an ice truck with five other inmates. When Claimant advised the prison personnel that he had no experience unloading an ice truck, he was told that it did not make “too much difference” because somebody would be there supervising. He and another inmate who was in the office were then given cotton gloves and ice tongs. According to testimony, the tongs had handles on one end and metal semicircular “claws” on the other, which were dull and ineffective.

Claimant and four or five other inmates were then led to the back of the kitchen to the ice house by Mr. Hill. A correctional officer with a truck of ice was awaiting them. Each block of ice was three feet tall and weighed approximately 300 pounds. A wooden inclined ramp was placed at the back of the truck to the ice house. This ramp was a board which was two or three feet wide and had elevated sides made of two-by-fours to keep the blocks of ice from sliding off. Two men on the truck, using tongs, would position a block of ice at the head of the ramp and let it slide down. Two men stationed on the side of the ramp would steady the block of ice to prevent it from sliding into the ice house until the two men in the ice house were ready to receive it. Then, the two men in the ice house, with the assistance of the two men on the side of the ramp, would push the ice from the ramp into the ice house.

The only instruction the inmates received prior to unloading the ice was to “be careful.” At first, Claimant just watched the unloading procedure, but was then told by Mr. Hill to help. Claimant stationed himself on one side of the ramp and had assisted in the unloading of four blocks of ice when the accident occurred. Claimant had his left hand resting on a block of ice waiting to move it into the ice house when a block of ice being held at the top of the truck broke away from their hold and slid down the ramp. Claimant’s left hand was crushed between the block of ice he was holding and the one which slid down the ramp. Claimant pulled his hand out from between the blocks of ice and realized immediately that it was seriously injured. He ran approximately one mile to the institution hospital, which immediately transferred him to a hospital outside the facility. The hospital took X rays and determined that Claimant had fractured his left long, ring and small fingers. All three of these fingers required sutures. Claimant’s hand was bandaged by the hospital and he was sent back to the Vienna Correctional Center hospital, where he was given pain pills for a two-month period. Claimant was also told to exercise his fingers, which he did for a two-month period. An independent medical examination revealed that Claimant has a 22% impairment of his left ring finger and a 78% impairment of function of his left small finger. Evidence propounded by Claimant showed that future surgery may improve the range of motion in Claimant’s small finger.

This Court finds that the evidence presented by Claimant clearly shows that the failure of the Department of Corrections to supervise the work of the inmates and to provide safe and adequate work tools were the proximate cause of the injuries to Claimant.

Respondent failed to produce any witnesses at trial or submit a brief although given more than ample opportunity to do so.

This Court finds that Claimant suffered great pain as a result of the accident and has suffered permanent injuries to his left ring finger and his small finger. However, the Court takes into account the fact that Claimant was contributorily negligent because he placed his left hand on the side of the block of ice where he knew or should have known it would be in danger of being hit by the next block of ice to slide down the ramp.

The Court finds that, due to Respondent’s negligence, Claimant was damaged in the amount of $9,000, but that award should be reduced to $6,000 due to the negligence of Claimant.

It is therefore ordered that the Claimant be granted an award in the amount of six thousand dollars ($6,000).


text:
    (No. 83-CC-1648
    Corabell DeWitt, Executor of the Estate of Vladimir G. Urse, Deceased, Jean Urse Popoff, and Linda Urse Anton, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 29, 1984.

    Springer, Casey, Haas, Dienstag & Silverman, for Claimants.
    Neil F. Hartigan, Attorney General (James A. Koch, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter comes before the Court upon the joint stipulation of the parties, which states as follows:

1. That instant claim was brought as a tort under section 8(d) of the Court of Claims Act (111. Rev. Stat. 1981, ch. 37, par. 439.8(d)). The complaint makes allegations of negligent hiring practices.

2. The instant claim arose from the theft of securities from the safety deposit box of Vladimir G. Urse by an employee of the State Treasurer’s office while the employee was inventorying the safety deposit box pursuant to the Illinois Inheritance Tax Act (111. Rev. Stat. 1981, ch. 120, par. 383).

3. The Claimants sought the statutory limit for tort claims of $100,000.00.

4. The Respondent admits that the theft of the securities was done by an employee of the State Treasurer’s office (said employee has been convicted for the crime) while performing the safety deposit box inventory pursuant to the Illinois Inheritance Tax Act.

5. That after careful consideration of the issues and facts pertaining to the instant claim, as well as the potential time, preparation and expense of litigation and its possible outcome, the parties have agreed to settle the claim for the sum of $85,000.00.

6. That this amount is offered by Respondent and accepted by Claimants as full, complete and final satisfaction of the instant claim or any other claim arising out of the incident in question.

7. That there are no disputes of fact or law between the parties.

8. That both parties waive hearing, the submission of evidence and the filing of briefs.

9. That both parties have entered into this stipulation will full knowledge of all facts and law relating to the claim, and feel that an award in the amount agreed upon is a fair and reasonable sum, and that the granting of such an award would be in the best interest of all concerned.

Although the Court is not bound by a stipulation such as this, it is also not desirous of interposing a controversy where none appears to exist. As long as the stipulation appears reasonable and fair, and this one does, we see no reason to question its validity or to force the parties to take the time and expense of proving facts which are not in dispute.

Claimants are hereby awarded the amount of $85,000.00 (eighty-five thousand dollars and no cents).


author: Holderman, J.

text:
    (No. 83-CC-2026
    Brett J. Decker, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 2, 1984.

    Mohr, Lewis & Reilly, for Claimant.
    Neil F. Hartigan, Attorney General (John J. Perconti, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This cause coming on to be heard on the joint stipulation of the parties hereto, the Court being fully advised in the premises, finds:

That this is a personal injury action brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(d)).

On November 10, 1981, Claimant was bitten by a dog suspected to have been rabid. About three days later, brain samples of the dog were sent to the Department of Public Health for rabies testing. On November 17, 1981, the lab reported positive evidence of rabies. On November 18, 1981, the Department retested the samples and found no evidence of rabies. As a result of the Department’s initial positive finding, the Claimant underwent a series of rabies inoculations.

It is hereby ordered that the Claimant, Brett J. Decker, be and hereby is awarded the sum of three thousand dollars and no cents ($3,000.00), in full satisfaction of this claim.


text:
    (No. 83-CC-2609
    William Holland, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 27, 1984.

    William Holland, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming on to be heard on the stipulation of Respondent, due notice having been given the Claimant and the Court being fully advised in the premises. The Court finds:

That this claim is for salary due Claimant. The appropriations, by line items, out of which this would have been paid are as follows: 488-55201-1120-0000-83, 488-55201-1161-0000-83, and 488-55201-1170-0000-83.

Claimant is seeking a lump-sum payment of his accrued vacation days. He was the executive director of the Illinois Law Enforcement Commission at the time of its abolition by the legislature on March 31,1983. On that date Claimant had 24M accrued vacation days, or a monetary total of $4,318.76.

Claimant was then transferred to the Illinois Bureau of Employment Security on May 10, 1983. Thus, Claimant had transferred from a position not subject to the Personnel Code (Ill. Rev. Stat. 1981, ch. 127, par. 63b101 et seq.) to a position subject to the Code.

At that time, Claimant sought a lump-sum payment of his accrued vacation days. He made this election in accordance with section 14(a) of the Personnel Code (Ill. Rev. Stat. 1981, ch. 127, par. 150a), which provides that; . . upon the movement of a State employee ... to a position subject to the Personnel Code from a State position not subject to the Personnel Code ... his accrued vacation and overtime shall be either payable in a single lump sum payment, or . . . credited to the employee’s account...”

It is thus apparent that Claimant’s election to receive a lump-sum payment of accrued vacation days was in accordance with applicable law. However, he did not receive such payment because no funds existed in the line item appropriations due to the abolition of the Law Enforcement Commission.

We believe this matter is within the purview of section 30 of the Finance Act (Ill. Rev. Stat. 1981, ch. 127, par. 166), which prohibits a State commission from obligating the State in an amount in excess of the money appropriated, unless expressly authorized by law. We find that Claimant’s election to receive a lump-sum accrued vacation payment was expressly authorized by the Personnel Code, and that Respondent, therefore, remains obligated to pay Claimant’s accrued vacation days through March 31,1983.

It is therefore ordered that Claimant be, and hereby is, awarded four thousand three hundred eighteen dollars and seventy-six cents ($4,318.76).

APPENDIX A (10% State general rev.)

Identification of State Contributions and Deductions from Back Salary Award.

To the State Employees’ Retirement System

Employee’s contribution to State Employees’ Retirement System _.00

Employee’s contribution to FICA _.00

State’s contribution to State Employees’ Retirement System 23.97

State’s contribution to FICA _JOO

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal income tax 86.38

To Illinois Department:

Claimant’s Illinois income tax 15.12

To the Claimant:

Net Salary 330.38

Total award $455.85

APPENDIX A (90% Federal funds)

Identification of State Contributions and Deductions from Back Salary Award.

To the State Employees’ Retirement System

Employee’s contribution to State Employees’ Retirement System _.00

Employee’s contribution to FICA _.00

State’s contribution to State

Employees’ Retirement System 215.72

State’s contribution to FICA _.00

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal income tax 777.37

To Illinois Department:

Claimant’s Illinois income tax 136.04

To the Claimant:

Net Salary 2973.47

Total award $4102.60


text:
    (No. 83-CC-2751
    Illinois Masonic Medical Center, Claimant, v. The State of Illinois, Respondent.

      Order filed March 7, 1985.

    Biswurm & Myers, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney -General, of counsel), for Respondent.
   Roe, C.J.

This matter coming to be heard on the motion of the Respondent to dismiss the claim herein, due notice having been given and the Court being fully advised, finds as follows:

Claimant has brought this action seeking payment for hospital and medical services provided by the Claimant to an individual patient. Claimant has alleged that the patient was medically indigent and therefore the Illinois Department of Public Aid (IDPA) is liable for payment for the hospitalization and medical care provided. Claimant has also stated that an application for medical assistance made on behalf of this patient was denied by IDPA.

The Court has previously ruled, and again so rules that:

1. Section 11 of the Illinois Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, par. 11 — 1 et seq.) provides for a system of administrative hearings and appeals for applicants for aid under the Code. That section states that article III of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.) “shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Illinois Department (of Public Aid).” Under article III, jurisdiction to review final administrative decisions is vested in the circuit courts. That fact prevents the Court of Claims from assuming jurisdiction over this matter;

2. This Court has jurisdiction under the Illinois Public Aid Code to entertain vendor payment claims. Such claims are limited to actions for payment for goods or services furnished to or in behalf of recipients. A recipient is one who is currently receiving aid from IDPA or who has been found eligible for such aid. This patient was not a recipient of aid nor had the patient been found eligible for aid. Therefore, this Court can not entertain this action;

3. Claimant has no standing to bring this claim, as the Illinois Public Aid Code does not give vendors of goods or services an opportunity to appeal the administrative decisions of IDPA regarding eligibility for aid under the Code.

It is hereby ordered that the motion of the Respondent be, and the same is, hereby granted and the claim herein is accordingly dismissed.


text:
    (No. 83-CC-2755
    Kenneth Stephenson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 31, 1985.

    Kenneth Stephenson, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (John J. Perconti, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a claim for the loss of items of personal property when Claimant was taken from the disciplinary segregation unit at the Menard Correctional Center to the health-care unit of the institution on April 27,1983.

There is no dispute that the State took possession of Claimant’s property and that it was not returned to him. The problem presented by this case is the value to be placed on the lost items.

In the portion of his complaint entitled bill of particulars, Claimant described the items as follows:

“(9) Nine years accumulation of legal files, books and records including but not limited to the following, (4) Illinois Criminal Law and Procedures (1977 to 1980) (5) Illinois Legal Directories, 8 Litigation Manuals, complete records and transcripts of appeals, post-conviction, conviction and approximately six civil actions, including exhibits, all of which was photostatically reproduced for the claimant at cost. Claimant seeks an estimated $850.00 for his losses.”

He testified that the four copies of the Illinois Criminal Code were paperbacks, that he had a Black’s Legal Dictionary, and four legal directories of the type that are published annually. He lost the transcript of his 1975 trial in Cook County, the transcript consisting of at least 500 pages. He lost the transcripts of his post-conviction proceedings and the briefs and transcript of his post-conviction appeal, plus material pertaining to certain Federal actions, some apparently still pending.

He offered no proof as to what it would cost him to replace these documents, and the record fails to disclose that he actually has a need for them. The age and nature of the material supports the amount of $300.00 as fair and reasonable compensation for his loss.

It is therefore ordered, adjudged and decreed that Claimant be awarded three hundred ($300.00) dollars in full and complete satisfaction of this claim.


text:
    (No. 84-CC-0338
    Leobardo Gutierrez and Mary Gutierrez, Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 27, 1984.

    Weisz & Weisz, for Claimants.
    Neil F. Hartigan, Attorney General (John J. Perconti, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This cause coming on to be heard on the joint stipulation of the parties hereto, the Court being fully advised in the premises,

Finds:

That this is a personal injury action brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(d)).

That pursuant to section 2 — 1009(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1009(a)) the claim of Leobardo Gutierrez for loss of consortium is voluntarily dismissed with prejudice.

On March 16, 1983, Claimant, Mary E. Gutierrez, tripped and fell while walking on Illinois Highway Route 47 near or about its intersection with Donovan Avenue, City of Woodstock, County of McHenry, State of Illinois.

The parties hereto have agreed to a settlement of this claim, and Respondent agrees to an entry of an award in favor of Claimant in the amount of five hundred dollars and no cents ($500.00) in full satisfaction of this claim.

It is thereby ordered that the Claimant, Mary E. Gutierrez, be and hereby is awarded the sum of five hundred dollars and no cents ($500.00) in full satisfaction of this claim.


text:
    (No. 84-CC-0339
    Quincy Park District, Claimant, v. The State of Illinois, Respondent.

      Order filed January 25, 1985.

    Goehl & Scrubbing, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This cause having come for consideration on the Respondent’s motion to file affirmative defenses instanter and the Court being duly advised in the premises:

Finds, that the price of the tramway, which Respondent allegedly orally contracted to buy, exceeds $500.00. The said tramway is a “good” within the definition of “goods” provided by the Uniform Commercial Code. (Ill. Rev. Stat. 1983, ch. 26, par. 2— 105.) A contract of the sale of goods for a price exceeding $500.00 is unenforceable without a writing evidencing the alleged contract and signed by the party against whom enforcement is sought. Ill. Rev. Stat. 1983, ch. 26, par. 2 — 201(1).

It is hereby ordered, that Claimant’s complaint is dismissed for failure to comply with the Statute of Frauds. Ill. Rev. Stat. 1983, ch. 26, par. 2 — 201(1).


author: POCH, J.

text:
    (No. 84-CC-0427
    Christopher Schaefer, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 19, 1984.

    Christopher Schaefer, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This is a claim for property damage to an automobile which is alleged to have occurred by reason of the vehicle being struck by a traffffic control signal being blown onto the automobile.

At a hearing before a commissioner of this Court, Claimant testified that on May 6,1982, at about 4 o’clock p.m., he was driving his automobile on Lawrence Avenue eastbound at or near the intersection of Lawrence Avenue and Canfield Road, City of Norridge, Illinois.

Immediately beyond the intersection, there was a light post with a 40-mile-per-hour speed limit sign affixed thereto. As Claimant proceeded past the intersection, the sign came off the post striking Claimant’s automobile.

The sign weighed about 20 to 25 pounds and was about 2/2 feet in length and three feet in width. It had a hole in both top and bottom where it had been affixed to the pole. The holes had some sign of rust about them.

For his evidence of cost of repair, Claimant presented an unpaid repair estimate, which was inadmissible.

Respondent introduced into evidence a departmental report which indicated that on April 2 and 3, 1982, slightly over a month prior to the date of the accident, there were wind gusts in the area of the sign of 50 to 60 miles per hour. As a result of those wind gusts, the sign in question, among others, was inspected by a field traffic engineer and the sign was found not to be in need of repair.

Claimant presented no evidence of any prior actual or constructive knowledge of any defective condition of the sign. At the time of the incident in question, the wind was 23 miles per hour.

In cases such as the one before the Court, it must be shown that the State had actual or constructive knowledge of the defective conditions of the sign in question.

From the evidence before the Court, the Claimant failed to provide the Court with evidence of either actual or constructive knowledge of any defective condition of the sign.

For the above reasons Claimant’s claim will be denied.


text:
    (No. 84-CC-0645
    Jonathan Childress, Claimant, v. The State of Illinois, Respondent.

      Order filed December 18, 1984.

    Jonathan Childress, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Hans G. Fladung, Assistant Attorney General, of counsel), for Respondent.
   Montana, J.

This is a claim brought by Jonathan Childress, a resident of Stateville Correctional Center, for personal injuries when his cell door was closed on his right hand.

On September 23, 1982, Claimant was transported from his cell in E house to a cell in F house. He was then taken to see an investigator and ultimately returned to his new cell in F house around 10:00 p.m. Claimant was handcuffed with his hands behind his back while escorted to the investigator. The normal procedure for removing the handcuffs from a handcuffed prisoner is for the prisoner to enter his cell, which is then closed, and the prisoner is directed to stand with his back to the cell door. The officer reaches in through a chuck hole (or feeding hole) in the door and removes one handcuff. The prisoner then sticks his other hand out through the chuck hole and the officer removes the remaining handcuff.

In this case, after Claimant entered his cell, the cell door remained partially open (two or three inches) instead of being fully closed. The guard reached in through the chuck hole and removed the handcuff from Claimant’s right hand. When Claimant bent over to stick his left hand out through the feeding hole, he raised his right arm and rested his right hand against the door frame of the still open door. Claimant did not know that the doors were operated electrically. In E house, where Claimant had come from, the doors opened and closed manually. Claimant had never been in F house before and did not know the doors were closed electrically. While Claimant had his free right hand resting on the door frame between the partially opened door and the frame, the guard in the central tower closed the door on Claimant’s hand.

Since the cell was about a half story higher than the tower, the Claimant could see the guard in the tower and the guard in the tower could see Claimant at all times.

Although Claimant thought the guard removing the handcuffs had closed the door, when he asked the guard to open the door, the guard turned around and waved to the guard in the tower to open the door.

The incident caused Claimant to be in pain and he asked for medical attention. Although the guard said he would send somebody up, nobody came to attend to Claimant. By morning the hand was swollen three to four times its normal size. (R. 21.) Claimant was then taken to the institution hospital where the doctor examining Claimant told him there was no fracture. Claimant insisted that there had been a fracture and after the doctor took additional X rays it developed that there was an oblique fracture involving the first metacarpal and a transverse fracture involving a distal phalanx of the right middle finger. The doctor could not put a cast on it because of the swelling. He prescribed hot packs and a week later he put a cast on the hand.

The following colloquy took place between Claimant and the commissioner:

“Q: Now, then your complaint is then that you received no treatment the night of the injury? Is that what your complaint is?
A: Yes.
Q: You are not complaining about the treatment you received after you finally got to see the medical personnel?
A: No.
Q: Now, I acknowledge that you were in pain and that your hand had swollen, but in what way would your medical condition be any better if you had gone to the doctor that night?
A: They could have given some type of treatment, something for the pain.
Q: Something for the pain?
A: Yes.
Q. How soon after the incident did you notice that your hand was swelling?
A: I woke up the next morning, it was swollen.
Q: Okay. You went to sleep though before you saw, before you noticed it?
A: It was swelling a little.
Q: Now, describe the pain. How did your hand feel when you woke up in the morning?
A: It was stiff. I couldn’t move it. I could barely move the tips of my fingers.
Q: Because of the swelling?
A: Right.
Q: But you weren’t feeling any pain from the incident?
A: Yes, I was feeling pain.
Q: How did it feel?
A: Sharp.
Q: Let me see if I am summarizing this correctly. Your complaint about the medical treatment is that you are saying that you should have been able to see medical personnel immediately following the incident rather than having to wait until the following morning?
A: Yes.
Q: But once you got the medical treatment, you are not saying that you were dissatisfied with what the doctor did.
A: No.”

Claimant also complains of some partial permanent disability resulting from the incident. His testimony on this point is reproduced in full:

“Q: . . . How is your hand now?
A: It is all right. I still have a knot in it but it is okay.
Q: So you don’t feel that you have any permanent injuries from this incident?
A: I can’t say for sure. Like I say all of the swelling is stuff still hasn’t left out of it. I haven’t seen the last x-rays that they had took after they took the cast off to see whether the bone mended back together or what. They said it would be some time before it would be all the way healed.
Q: Were there any bones broken?
A: It was cracked in two different spots.
Q: Which bone was that?
A: Here and there.
Q: It is in the hand?
A: Yes.
Q: Not in the fingers?
A: No. It is in the hand.
Q: Do you have any trouble using your fingers?
A: No, I don’t.
Q: You can close your fingers just as well with your right hand as you can with your left hand?
A: I can’t close it as tight as my left.
Q: Let me see your hand. Does it show any evidence of the injury?
A: Like I say. It still has a knot right in here. You could feel it right there on the bone.” (R. 6-7.)

Additionally, Claimant testified:

“Q: But you don’t really have any permanent injury from the door closing on the hand?
A: Yes, I do.
Q: The knot that is what you are talking about?
A: Yes.
Q: All right. Now, let me see your hand again?
A: Right there.
Q: But does that affect you in any way?
A: Like I said I can’t tighten my hand all the way up. I know it is not the way that it is supposed to be.
Q: How old are you?
A: I am 31.
Q: How long have you been here?
A: 3 years.
Q: Before you came here, what kind of work did you do?
A: I was a cosmetologist.
Q: You mean you worked in a beauty salon or something like that?
A: Yes.
Q: When will you be released from here?
A: In’88.
Q: Will you go back and do that same type of work?
A: I don’t know.
Q: Well, will this in any way affect your ability to earn a living?
A: I don’t know. I can’t really say at the time.
Q: You have never done manual work?
A: Yes, I have.
Q: What kind?
A: Quite a few. Gardening, landscape.
Q: Are you on any work details now?
A: Yes, I am.
Q: What?
A: I am a clerk.
Q: Do you find any inconvenience in your work as a clerk caused by your hand?
A: It is not any inconvenience in my clerk work but it inconvenienced me being on the weightlifting team and things like that.
Q: How does it affect you on the weightlifting team?
A: Like I say I can’t ball my hand up all the way tight.
Q: Since the time the door closed on it?
A: Yes, I was on the weightlifting team before the injury happened and I was assigned back to the weightlifting team about two months ago trying to exercise to see if the strength will come back in the hand. So far it hasn’t.
Q: How long did you suffer pain?
A: What do you mean?
Q: For how long was your hand in pain from having the door close on it?
A: Until it got well.
Q: How long?
A: I would say what, four months.” (R. 18-20.)

Respondent called Dr. Gartrell King, medical director at Stateville Correctional Center, as a witness. Dr. King was not the treating doctor, but testified from Claimant’s medical records.

At the request of the commissioner, Dr. King examined Claimant’s right hand (R. 32-35). He found slight tenderness over the right second metacarpal, found that the hand appeared to be “grossly unremarkable,” could not say with a reasonable degree of medical certainty, based on the information that he had, that the knot on the back of Claimant’s hand was caused by the fracture, and found that the patient appeared “to have substantial ability to grip with his right hand.”

It is clear that Claimant proved a prima facie case of negligence on the part of Respondent. The instrument causing the injury was totally under control of Respondent, and Respondent called no witnesses to explain how the incident occurred.

As held by this Court in Westchester Fire Insurance Co. v. State, 27 Ill. Ct. Cl. 327:

“When a thing which has caused an injury is shown to be under the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the parties charged, that it arose from want of due care.”

Claimant was not guilty of contributory negligence because of his unfamiliarity with F house and specifically, its electronic doors. Moreover, the guard removing Claimant’s handcuff did not warn him not to rest his hand on the door frame or in any other manner advise him of safe procedures.

Although in the departmental report Warden DeRobertis offered the conjecture that Claimant injured his hand in a fight prior to being taken to segregation, Respondent called no witnesses to support this conjecture. In fact, Respondent introduced Claimant’s medical records which include Claimant’s resident injury report which recites that Claimant caught his right hand in a cell door.

Claimant failed to prove substantial permanent injuries, but he obviously experienced pain and suffering. The failure of Respondent to furnish Claimant with emergency medical treatment increased Claimant’s pain and suffering.

It is hereby ordered that Claimant Jonathan Childress be and hereby is awarded the sum of one thousand dollars ($1,000).


text:
    (No. 84-CC-0663
    City of Quincy, Claimant, v. The State of Illinois, Respondent.

      Order filed August 13, 1984.

    Donald D. Adams, for Claimant.
    Neil F. Hartigan, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The City of Quincy brought this claim seeking the sum of $35,831.00 in payment for fire protection provided the Respondent’s Illinois Veterans Home located in Quincy, Illinois. The Claimant alleged that it demanded payment from the Respondent but its demand was refused on the grounds that the appropriation with which it could have been paid had lapsed or, in the alternative, on the grounds that there were insufficient funds appropriated for the payments.

It appears from the departmental report compiled by the Respondent’s Department of Veterans’ Affairs, which report is prima facie evidence of the facts contained therein pursuant to Rule 14 of the Rules of the Court of Claims, that amidst massive cost reduction measures taken by the Respondent with respect to the operation of the Veterans Home, it was decided that the City of Quincy’s fire protection bill would not be paid. The Department of Veterans’ Affairs described the situation as follows:

“During December, 1982, the staff of the Illinois Veterans Home, at Quincy, prepared an updated projection of expenditures through FY83. This projection indicated that, if the then current operational level was to be maintained, it was probable that overspending of the appropriated amount by approximately $500,000 would occur.
The Department implemented various cost curtailment measures wherever possible, to assure spending within the limits of the approved appropriation. Significant reductions were made in staffing levels with layoffs and the freezing of vacant positions. Participation of employees in the voluntary furlough program was encouraged. All future equipment acquisition was frozen, various service contracts were cancelled, commodity inventories were reduced and new purchases were deferred.
About this time, it also became apparent that the Illinois Veterans Home Fund was experiencing a serious cash-flow problem, as generated income was not keeping pace with expenditures. The Illinois Veterans Home Fund is funded from revenue generated at the Home through partial reimbursement of costs by the Veterans Administration and Medicare. A maintenance charge is also collected from the members of the Home, which is based on their monthly income. The Illinois Veterans Home Fund has in recent years supported approximately 60% of the operating costs of the Home.
This tight money situation was further adversely affected in March, 1983, when the Governor’s freeze on new admissions was put into effect. This freeze on new admissions, while intended to reduce operating costs, also placed a freeze on new income. As members died or moved out of the Home, income also was reduced.
A situation developed in which everyone involved was engaged in efforts intended to reduce expenditures and maximize the generation of income, while maintaining a level of operation which would provide adequate care and service for the approximately 600 members of the Home. In spite of efforts to reduce the cost of contractual services it was found that, in particular, the high cost of providing hospital and medical care for the members of the Home was continuing to increase at a drastic rate as the fiscal year was drawing to a close. Adding to the difficulty was the fact that the extent of Medicare participation in payment is never known with certainty until after a lag of several weeks.
Although adequate income was generated and cash was allocated to permit payment of all anticipated expenditures, and total expenditures were curtailed to within the limits of the total appropriation, the Department found that the appropriation by line item was greatly dislocated from where the costs were being incurred.
The remaining amount of transferability under the Z% transfer statute was necessarily utilized to permit payment of the final FY83 payrolls at the Home.
The Department sought the aid of the General Assembly in obtaining an amendment to our FY83 Appropriation to make the necessary transfer. Unfortunately, it was too late in the legislative session, and the Department was unsuccessful in this effort.
As a result, while the Department was lapsing approximately $162,000.00 in the Commodities line item, it was unable to transfer those funds to satisfy the additional needs in the Contractual Services line item.”

Ordinarily in circumstances such as this, this Court must deny this claim, as this Court is not permitted under the Constitution of the State of Illinois, 1970, article 8, section 2, or section 30 of the State Finance Act (Ill. Rev. Stat., ch. 127, par. 166), to award funds in excess of those the legislature has appropriated. However, the complaint and the departmental report, which pursuant to Rule 14 of the Rules of the Court of Claims is prima facie evidence of the facts stated therein, both state that the Claimant is requesting payment for fire protection rendered to the Illinois Veterans Home in Quincy, Illinois. Clearly, this is a service which is indispensable for those institutionalized at the home, and it is a service which cannot be purchased from any other source. There is an exception for payment of services in excess of the appropriated amount where those services are expressly authorized by law. The State submits that the operation and maintenance of the Illinois Veterans Home is mandated by section 2.01 of “An Act creating the Illinois Department of Veterans’ Affairs” (Ill. Rev. Stat., ch. 126M, par. 67.01), and that fire protection services are part of the operation of that home, and that these services are expressly authorized by law. This interpretation is consistent with the holding in Fergus v. Brady, 227 Ill. 272.

It is hereby ordered, that the Claimant be awarded $35,831.00.


text:
    (No. 84-CC-0770
    James Pygott, Claimant, v. The State of Illinois, Respondent.

      Order filed February 28, 1985.

    Baird, Latendresse, McCarthy & Rowden, for Claimant.

      Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Montana, J.

This cause comes on the joint stipulation of facts and attachments submitted by the parties. The stipulation of facts is that the Claimant, James C. Pygott, Sr., suffered an injury on October 16, 1981, at a parking lot located at 3122 North Water Street, in the City of Decatur, County of Macon, State of Illinois. That said parking lot was next to the State of Illinois’ Department of Public Aid office in Decatur, Illinois, and was owned or leased by the State of Illinois; and further, there was a storm sewer located below said parking lot with access to the sewer provided by manholes with manhole covers which were maintained and repaired by the State of Illinois. On the day in question, the Claimant, being lawfully on said parking lot, stepped onto a manhole cover located on said lot; and because of the manhole cover’s state of ill repair, fell through it with one of his legs, causing him bodily injury. The cover of the manhole referred to above was at said time and place in a damaged or defective state in that one of the metal rods of the grating was missing, thus allowing said accident to happen. The Respondent, State of Illinois, did not have a maintenance or inspection program for this grate.

Because of this accident, the Claimant suffered injuries on various parts of his body; specifically, his lower back, his cervical spine, his head and his left knee; and continues at this time to have lower back pain with radiation to both hips, superimposed over a pre-existing, but asymptomatic, condition known as spondylolisthesis, headaches and accompanying upper back pain and left knee pain on occasion, all of which impair his ability to work and carry on usual activities. Claimant has incurred medical bills amounting to roughly $1100.00 because of this accident and may incur future medical bills for treatment of the above described injuries. Based on the facts, the parties have agreed to settle the above captioned matter for the sum of two. thousand five hundred dollars ($2500.00) and respectfully ask that this Court approve this settlement agreement.

While this Court is not required to accept such settlements, the Court has no desire to impose a controversy where none appears to exist. The stipulation submitted by the parties appears to have been entered into freely and fairly, and its contents appear to be reasonable.

It is hereby ordered, that the Claimant be awarded $2500.00 in full and final satisfaction of this claim and all other claims arising from this incident.


author: Roe, C.J. Roe, C.J.

text:
    (No. 84-CC-0794
    Michael E. Schafer, M.D., Claimant, v. The State of Illinois, Respondent.

      Order filed April 19, 1984.

      Order on motion to dismiss filed September 7, 1984.

    Michael E. Schafer, M.D., pro se, for Claimant.

      Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause comes on to be heard on the Respondent’s motion to dismiss, due notice having apparently been given, and the Court being fully advised in the premises;

The Claimant brought this action seeking payment of $2,100.00 for medical services provided to a child in the custody of the Department of Children and Family Services (DCFS). He alleged in his form “lapsed appropriation” complaint that demand for payment was made from DCFS, but his demand was refused on the grounds that the funds with which his bill could have been paid had lapsed.

The Respondent has moved for dismissal on the grounds that this obligation has been paid. In support of its position, the Respondent attached as Exhibit A a letter from DCFS which was described as a departmental report and offered as prima facie evidence of the facts contained therein pursuant to Rule 14 of the Rules of the Court of Claims. The letter states that the Department of Public Aid paid this Claimant $1,480.00 which is in accordance with their pricing index for such services.

This Court has consistently rejected such evidence. Rule 14 is very beneficial to the Respondent and it enables this Court to function efficiently and economically. However, we cannot allow a departmental report from one State agency describing transactions of another State agency to become prima facie evidence under the rule. The weaknesses of the triple hearsay nature of the evidence outweigh any circumstantial guarantees of accuracy ordinarily attributed to departmental reports.

Motion denied.

ORDER ON MOTION TO DISMISS

Roe, C.J.

This matter coming to be heard on the amended motion of the Respondent to dismiss the claim herein, due notice having been given and the Court being fully advised;

Finds that this claim has been paid directly by the Illinois Department of Public Aid at rates in accordance with the Medical Assistance Program Pricing Index.

It is hereby ordered that the motion of the Respondent be, and the same is, hereby granted and the claim herein is dismissed.


text:
    (No. 84-CC-1273
    City of Chicago, Claimant, v. The State of Illinois, Respondent

      Order filed September 21, 1984.

    James D. Montgomery and Edward T. McAuliffe, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause comes on to be heard on stipulation of the Respondent to pay the Claimant’s claim of $13,700.15, notwithstanding the fact that sufficient appropriated funds were not available at the end of Fiscal Year 1983 to pay this claim.

Respondent urges us that this expenditure “was expressly authorized by law” and therefore not subject to the ordinary restriction that public monies must be appropriated by the General Assembly in order to be expended.

The “expressly authorized by law” concept has its genesis in the opinion of the Supreme Court of Illinois in the case of Fergus v. Brady (1917), 277 Ill. 273. And following that opinion, this Court has made numerous awards on the basis that they “were expressly authorized by law.” See Rock Island County v. State (1973), 28 Ill. Ct. Cl. 337, and Clavey v. State (1973), 29 Ill. Ct. Cl. 21.

Unlike the prior cases, the instant case arises because the General Assembly legislated that the funds previously appropriated be reduced through a device known as “contingency reserves.” This authorization is contained in the Emergency Budget Act (P.A. 82-1038, approved December 1982).

The Act withstood vigorous constitutional attack by a divided Supreme Court of Illinois in Warrior v. Thompson (1983), 96 Ill. 2d 1, 449 N.E.2d 53.

The specific legislative intent (i.e. to “reserve” appropriations) being easily ascertainable, this Court has no alternative but to deny the claim.

It is therefore ordered that the claim be dismissed, with prejudice.


text:
    (No. 84-CC-1275
    City of Chicago, Claimant, v. The State of Illinois, Respondent.

      Order filed September 21, 1984.

    James D. Montgomery and Edward T. McAuliffe, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause comes on to be heard on stipulation of the Respondent to pay the Claimant’s claim of $10,872.96 notwithstanding the fact that sufficient appropriated funds were not available at the end of Fiscal Year 1983 to pay this claim.

Respondent urges us that this expenditure “was expressly authorized by law” and therefore not subject to the ordinary restriction that public monies must be appropriated by the General Assembly in order to be expended.

The “expressly authorized by law” concept has its genesis in the opinion of the Supreme Court of Illinois in the case of Fergus v. Brady (1917), 277 Ill. 273. And following that opinion, this Court has made numerous awards on the basis that they “were expressly authorized by law.” See Rock Island County v. State (1973), 28 Ill. Ct. Cl. 337, and Clavey v. State (1973), 29 Ill. Ct. Cl. 21.

Unlike the prior cases, the instant case arises because the General Assembly legislated that the funds previously appropriated be reduced through a device known as “contingency reserves.” This authorization is contained in the Emergency Budget Act (P.A. 82-1038, approved December 1982).

The Act withstood vigorous constitutional attack by a divided Supreme Court of Illinois in Warrior v. Thompson (1983), 96 Ill. 2d 1, 449 N.E.2d 53.

The specific legislative intent (i.e. to “reserve” appropriations) being easily ascertainable, this Court has no alternative but to deny the claim.

It is therefore ordered that the claim be dismissed, with prejudice.


text:
    (No. 84-CC-1377
    State Employees’ Retirement System, Claimant, v. The State of Illinois, Respondent.

      Order filed September 21, 1984.

    State Employees’ Retirement System, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This issue in this case involves the constitutional power of the General Assembly to control the fiscal policy of the State.

In 1982, the General Assembly, in various appropriation bills, provided funding that included the State’s portion for retirement contributions to the various retirement systems, including the State Employees’ Retirement System for Fiscal Year 1983 (commencing July 1, 1983). The contribution rate set by Claimant for FY 1983 was 5.5% of employee compensation.

In April of 1982, responding to the State’s fiscal crisis, the General Assembly passed Senate Bill 177. That bill amended the various appropriation bills to reduce the previously appropriated monies for retirement contributions to a rate of 4.5%. On April 29, 1983, Governor James R. Thompson exercised his power to item reduce certain items and Senate Bill 177 became effective immediately as Public Act 83-0002.

On April 28, 1983, the Senate adopted Senate Joint Resolution No. 33, sponsored by Senators Philip Rock, President of the Senate, and Howard W. Carroll, Chairman of the Senate Appropriations I Committee.

Senate Joint Resolution No. 33 declared that:

“. . . Senate Bill 177 was adopted for the purpose of helping to alleviate the state’s current cash problems by reducing appropriations made for the employees’ contributions to various state retirement systems for fiscal year 1983. . .”

and that:

“. . . it is the intent of the General Assembly to pay to the various pension funds. . . the amount by which payments to those funds were reduced for fiscal year 1983, plus interest at the rate of 6% per year. . .”

The Resolution then resolved that the amounts reduced would be repaid by 20% of the reduction made for each of the next five fiscal years commencing with fiscal year 1984, plus 6% interest per year.

Claimant filed this claim to recover $869.35 for payment of retirement contributions for employees of the Department of Nuclear Safety.

Because of the aforesaid action of the General Assembly, insufficient funds were appropriated (as a result of Senate Bill 177) to cover this claim.

Article VII, section 2(b) of the 1970 Constitution of the State of Illinois provides:

“The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.”

The General Assembly having determined (perhaps belatedly) that funds would not be available during Fiscal Year 1983 to cover this claim, this Court has no alternative but to deny the claim.

It is therefore ordered, that this claim be dismissed, with prejudice.


text:
    (No. 84-CC-1440
    Savin Corporation, Claimant, v. The State of Illinois, Respondent

      Order filed December 6, 1984.

    Savin Corporation, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This matter coming to be heard on the motion of the Respondent to dismiss the claim herein, due notice having been given and the Court being fully advised.

The record in this matter discloses that Claimant furnished a copying machine to the Department of Children and Family Services pursuant to a contract for Fiscal Year 1981. After that contract expired, DCFS continued to use the copying machine but no new contract was executed.

The Comptroller would have been unable to issue warrants in payment for the rental of this machine because no contract for the same was ever executed or filed with the Comptroller as mandated by law. Therefore, this Court is also unable to make an award on this claim.

It is hereby ordered that the motion of the Respondent be, and the same is, hereby granted and the claim herein is dismissed.


author: Holderman, J. Holderman, J.

text:
    (No. 84-CC-1770
    George Grawe, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 19, 1984.

      Order on petition for rehearing filed January 24, 1985.

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

This is a claim by George Grawe against the State of Illinois for lost wages during a period of time that he was wrongfully discharged from his employment with the Department of Transportation as a highway maintainer. A hearing was held on June 6,1984, all briefs have been filed, and the matter now comes on for an opinion by the Court.

In 1977, Claimant suffered a heart attack which resulted in a workmen’s compensation case against the State. During the pendency of that case, Claimant was off work. The case was ultimately settled by the parties in 1979. Thereafter, Claimant remained off work by taking a series of six-month leaves of absence until January of 1981. Claimant was terminated from his employment by Respondent, effective January 9, 1981. He sought review of that decision before the Civil Service Commission and ultimately through the courts. As a result of that action, Claimant was reinstated to his position on December 3, 1981. Claimant now seeks $17,385.45 for back wages for the period of January 9, 1981, through December 3, 1981, and $1,500.00 for lost overtime wages which Claimant states he expected to earn during that period.

The question of overtime, which was raised at the time of the trial of this case, is, in the Court’s opinion, irrelevant. This Court has previously held that the Claimant, in cases such as this, must meet his burden of proving he took reasonable steps to mitigate the damages suffered as a result of the State’s wrongful act. The rule on mitigation of damages is stated distinctly in Fuller v. State, 26 Ill. Ct. Cl. 14, as follows:

“This Court has long followed the principle of ‘avoidable consequences’ which holds that a Claimant must use means as are reasonable under the circumstances to avoid, mitigate, reduce or minimize the damages, which he has incurred as a result of a wrongful act.”

Claimant testified he did not make any job applications in his home town of Camp Point which had a population of approximately 14,000 people. He further testified that the “want ads” he looked at disclosed nothing he considered suitable for his abilities, and that he did not seek job applications in Quincy, Illinois, because his son-in-law advised him there were no suitable positions available in that town.

It is the Court’s opinion that Claimant’s attempts to find work were not reasonable within the meaning of the Court’s decision in the case above cited. A claimant must take steps beyond merely looking at “want ads” and relying on a relative’s opinion.

Award denied. Case dismissed.

ORDER ON PETITION FOR REHEARING

Holderman, J.

This matter comes before the Court upon Claimant’s petition for rehearing on an order heretofore entered by this Court dismissing said cause, and Respondent’s reply to said petition.

Claimant seeks to recover compensation for a period of time when he had been wrongfully discharged from his employment with the Department of Transportation as a highway maintainer. A hearing was held on this matter and a Commissioner’s report was returned.

In 1977, Claimant suffered a heart attack which resulted in a workmen’s compensation case against the State which was eventually settled. Claimant remained off work until January 1981 by taking a series of six-month leaves of absence at which time his employment was terminated.

The evidence introduced before the commissioner at the time of the hearing was to the effect that Claimant had made little effort to mitigate the damages suffered as a result of his wrongful layoff. Claimant lived in a town of approximately 14,000 people and was in fairly close proximity to Quincy, Illinois, a much larger town. Claimant testified his son-in-law told him there was not any work available for him in Quincy and he had been unable to find work in his home town. His efforts to find work were minimal, to say the least.

The rule on mitigation of damages is stated distinctly in Fuller v. State, 26 Ill. Ct. Cl. 14, as follows:

“This Court has long followed the principle of ‘avoidable consequences’ which holds that a Claimant must use means as are reasonable under the circumstances to avoid, mitigate, reduce or minimize the damages, which he has incurred as a result of a wrongful act.”

Claimant further testified that he made no job applications in his home town and that the “want ads” that he looked at disclosed nothing he considered suitable for his abilities.

It is the Court’s opinion that its original order denying Claimant an award because of his failure to actively seek to mitigate the damages is correct.

It is hereby ordered that Claimant’s petition for rehearing be, and the same is, denied and this cause is dismissed.


text:
    (No. 84-CC-1836
    Jesse Lee Brown, et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 25, 1984.

    Aviva Futorian and Diane Redleaf, of Legal Assistance Foundation, for Claimants.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause, coming on to be heard on the joint stipulation of the parties hereto, the Court being fully advised in the premises, finds:

That the multiple-party group of Claimants listed herein consists of 17 Claimant seeking individual awards of varying amounts. These claims, in the aggregate amount of ten thousand seventy-eight dollars and thirty cents ($10,078.30), are for recovery of benefits to which the named Claimants were entitled between April 1980, and March 17,1982, but did not receive, under the Aid to Families with Dependent Children (AFDC) program of the Illinois Department of Public Aid. The joint stipulation is preceded by and predicated upon a U.S. district court decision in litigation entitled Simpson v. Miller, 535 F. Supp. 1041 (N.D. Ill.). This expenditure is authorized in article IV of the Public Aid Code (Ill. Rev. Stat. 1981, ch. 23, par. 4 — 1 et seq.).

The amount due would have been paid in the regular course of business had the obligation been acknowledged by Respondent at the appropriate time. Such acknowledgment was not then possible because of protracted Federal court litigation, and Claimants could not be timely notified of their right to file claims until recently. By then, the appropriation of funds with which the Department of Public Aid would ordinarily pay such claims had lapsed.

The sole reason said obligation was not previously paid is the present nonavailability of State funds appropriated to the Department for the period in which this debt was incurred.

Money was appropriated under line items:

AFDC 001-47801 — 4400—02-00 FY’80
AFDC 001 — 47801—4400—02—00 FY’81
AFDC 001-47801 — 4400—02-00 FY’82

A sufficient amount lapsed to cover this claim.

It is therefore ordered that Jesse Lee Brown et dl., be and are hereby each awarded the sums specified in the parties’ joint stipulation, for an aggregate amount of ten thousand seventy-eight dollars and thirty cents ($10,078.30).


author: Raucci, J. Raucci, J.

text:
    (No. 84-CC-1922
    County of St. Clair, Claimant, v. The State of Illinois, Respondent.

      Order filed October 31, 1984.

      Order on motion for rehearing filed March 25, 1985.

    Gary L. Bement, Assistant State’s Attorney, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause comes on to be heard on motion of the Respondent to dismiss the Claimant’s claim of $953.01 due to the fact that sufficient appropriated funds were not available at the end of Fiscal Year 1983 to pay this claim.

Respondent urges us that this expenditure is subject to the ordinary restriction that public monies must be appropriated by the General Assembly in order to be expended.

The instant case arises because the General Assembly legislated that the funds previously appropriated be reduced through a device known as “contingency reserves.” This authorization is contained in the Emergency Budget Act (P.A. 82-1038, approved December, 1982).

The Act withstood vigorous constitutional attack by a divided Supreme Court of Illinois in Warrior v. Thompson (1983), 96 Ill. 2d 1, 449 N.E.2d 53.

The specific legislative intent (i.e. to “reserve” appropriations) being easily ascertainable, this Court has no alternative but to deny the claim.

Claimant, subsequent to Respondent’s motion, filed its motion to amend complaint. Because of the disposition of Respondent’s motion, Claimant’s motion is moot.

It is therefore ordered that the claim be dismissed, with prejudice.

ORDER ON REHEARING

Raucci, J.

This cause having come for consideration on the Respondent’s objection to Claimant’s motion for rehearing and the Court being duly advised in the premises:

Finds, that the Claimant is asking for a rehearing on a matter which is already moot. Claimant asks that this Court decide the “merits” of this case. However, in order for the Court to decide this case there is need for an actual controversy. (Royal Glove Insurance Company v. Aetna Insurance Company, 82 Ill. App. 3d 1003, 403 N.E.2d 680; Midwest Petroleum Marketer Association v. City of Chicago, 82 Ill. App. 3d 494, 402 N.E.2d 709.) Furthermore, a claim for declaratory relief, standing alone, does not keep an otherwise moot claim alive. (Simpson v. Miller, 93 F.D.R. 540.) A moot case can not support an entry of declaratory judgment with regard to future rights. (Berg v. City of Chicago, 97 Ill. App. 2d 410, 240 N.E.2d 344.) Declaratory judgment procedure is not intended to permit litigation of moot or hypothetical cases. Clyde Savings & Loan v. May Department Stores, 100 Ill. App. 3d 189, 426 N.E.2d 955.

It is hereby ordered, that as this case has been decided, and the issue is moot, the motion for rehearing is denied.


author: POCH, J. Roe, C.J.

text:
    (No. 84-CC-2062
    Texaco, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 25, 1984.

      Order on Court’s motion filed July 27, 1984.

    James C. Shy, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

The record in this cause indicates that this is a standard lapsed appropriation claim. The Attorney General has submitted a Respondent’s stipulation based upon a report of the Department of Corrections.

This Court finds that this was a properly authorized expenditure of which $36.39 remains unpaid. The purpose of the expenditure was for gasoline for State-owned vehicles.

Money was appropriated under line item #001-42605-1800-00-00. A sufficient amount lapsed to cover this claim. Claimant’s Social Security or Federal Tax I.D. number is 741-383-447.

It is hereby ordered that the Claimant be and is hereby awarded, in full satisfaction of this claim, the sum of thirty-six and 39/100 ($36.39) dollars.

ORDER ON COURT’S MOTION

Roe, C.J.

This matter comes on to be heard on the Court’s own motion:

On May 25,1984, this Court rendered an opinion in this claim awarding the Claimant $36.39. The claim was for payment for gasoline for State-owned vehicles and was based on lapsed appropriations. Our decision was based on a stipulation by the Respondent and a departmental report issued by the Illinois Department of Corrections. Such reports are accorded the extraordinary status of being prima facie evidence of the facts therein by rule of this Court.

The bill of particulars attached to the complaint in this case shows that the claim consists of two purchases, one occurring in May of 1983, and one occurring in April of 1983. The departmental report, signed by one John S. Crain, fiscal manager, of the Department of Corrections and dated March 19, 1984, verified this was a proper claim for Fiscal Year 1983 funds.

In due course the Court caused a State warrant to be issued in payment of the award made. Subsequently the Court received a letter from the Claimant stating it had received payment of the amount claimed on February 29, 1984. Enclosed with said letter was the Court’s warrant. Vouchering of this payment would have had to have been done at least three weeks prior to the date of the Department of Corrections’ report. But for the integrity and laudable actions of the Claimant herein, the negligence and possible violation of the law by the Department of Corrections in paying the claim with Fiscal Year 1984 funds would have resulted in double payment.

Because this cause of action has been previously satisfied, it is hereby ordered that it be, and hereby is, dismissed.


text:
    (No. 84-CC-2682
    Union Electric Co., Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed August 22, 1984.

      Order on motion to reconsider filed January 31, 1985.

    Pope & Driemeyer, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Raucci, J.

This cause coming on to be heard on the Respondent’s motion to dismiss and the Court being duly advised in the premises:

Finds, that the Claimant’s complaint was filed on April 6, 1984. Exhibit A to the complaint and the departmental report establish that the electrical service was rendered between June 21, 1977, and July 21, 1977. Claimant’s response to the motion to dismiss now asserts that

“the claim is for ‘the balancé remaining due for current charges on the account involved herein after applying the most recent payment received from the State of Illinois first to the previous balance on this account and then applying the remaining balance of such payment to current charges.’ ” (Emphasis added)

This position is untenable. If this claim were for current service, it would not be filed in this Court at this time, but would be paid out of the current appropriation. Additionally why would Claimant attach a 1977 invoice to justify a current claim?

This is a lapsed appropriation claim, which stems from a contract. Section 22(a) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.22(a)) establishes that all claims arising out of contract must be filed with the Court of Claims within five years of the date the cause of action accrues, or should be forever barred. This claim has not been timely filed.

It is hereby ordered that this cause is dismissed with prejudice.

ORDER ON MOTION TO RECONSIDER

Raucci, J.

This cause coming on to be heard on the Claimant’s motion to reconsider, the Court being fully advised in the premises:

The motion to reconsider should be denied for the reasons stated in the Respondent’s memorandum in opposition to Claimant’s suggestions in support of motion to reconsider.

It is therefore ordered that the motion to reconsider be, and it is hereby, denied.


text:
    (No. 84-CC-2750
    Northern Illinois Gas Co., Claimant, v. The State of Illinois, Respondent.

      Order filed September 21, 1984.

    Alexander C. Allison, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause comes on to be heard on the stipulation of Respondent to pay Claimant $7,888.52. Ordinarily, we would accept the stipulation and award Claimant the sum sought. However, to do that in this case would require us to ignore what is evident from a cursory examination of the documents submitted.

The complaint seeks payment for electrical services provided the Department of Mental Health and Developmental Disabilities from December 16,1977, to February 17,1978.

The complaint was filed on April 13,1984, a period of time six years after the provision of the electric services, and 5/4 years after the expiration of the fiscal year in which the services were provided.

Accordingly, from the face of the pleadings, the claim is barred by the five-year statute of limitations.

It is therefore ordered that this claim be, and is hereby, dismissed.


author: Montana, C.J.

text:
    (No. 84-CC-2859
    Jacob M. Kunz, Claimant, v. The State of Illinois, Respondent.

      Order filed June 10, 1985.

    Winstein, Kavensky, Wallace & Doughty, for Claimant.
    Neil F. Hartigan, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This cause coming on to be heard on the joint stipulation of the parties and the Court being fully advised in the premises finds as follows:

This claim comes before this Court on the joint stipulation of the parties, which stipulation is quoted verbatim as follows:

“1. This is a claim for lost wages in the amount of $63,494.91 as the result of a wrongful discharge of the Claimant by the Office of the Illinois Secretary of State.
2. During the period of time for which claim is being made, the Claimant received unemployment compensation benefit payments in the amount of $3,016.00 for which the Claimant recognizes a valid claim by the Department of Employment Security.
3. Although the Claimant received Social Security benefits in the amount of $18,650.60 during the period of time for which claim is being made, the parties recognize the state of the law which allows the Claimant to earn salary without a limitation at the same time he is permitted to collect Social Security and Social Security payments therefore should not be deducted from any benefits awarded by the Court.
4. The issues before the Court, if a hearing were conducted into this matter would be limited to mitigation and other income.
5. Claimant has prepared an affidavit which states the substance of what he would testify to if called upon to give testimony as to his other earnings and mitigation efforts during the time for which claim is being made.
6. Both parties stipulate and agree that the affidavit may be entered into the record without objection.
7. Both parties agree to waive, with the Court’s permission, any further hearing in this matter.
8. The parties agree that the Court may decide the issues in this matter based upon the record now before the Court and without the presence of the parties.”

Having carefully reviewed the stipulation of the parties, we find that the Claimant did all in his power to mitigate his losses and we hereby grant the Claimant an award as claimed in the amount of sixty-three thousand four hundred ninety-four and 91/100 ($63,494.91) dollars, with $3,016.00 to be set aside for repayment of unemployment compensation received by the Claimant, which amount is to be paid to the Department of Employment Security on behalf of the Claimant’s account, with the net amount remaining to be paid directly to the Claimant in the amount of sixty thousand four hundred seventy-eight and 91/100 ($60,478.91) dollars.

APPENDIX A

Identification of the State Contributions and Deductions from Back Salary Award.

To the State Employees’ Retirement System

Employee’s contribution to State Employees’ Retirement Sys. 2539.80

Employee’s contribution to FICA 4119.92

State’s contribution to State

Employees’ Retirement System 4021.05

State’s contribution to FICA 4119.92

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal income tax 12698.99

To Illinois Department:

Claimant’s Illinois Income Tax 1587.38

To Office of Employment Security:

Director Dept, of Employment Security 3016.00

To the Claimant:

Net salary 39532.82

Total award $71635.88


text:
    (No. 84-CC-3288
    Jeffrey D. Colman, a partner acting on behalf of the law firm of Jenner & Block, Claimant, v. The State of Illinois, Respondent.

      Order filed November 27, 1984.

    Jenner & Block, for Claimant.
    Neil F. Hartigan, Attorney General (H. Alfred Ryan, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause comes on to be heard on the Claimant’s Jeffrey D. Colman, a partner acting on behalf of the law firm of Jenner & Block, motion for summary judgment.

Claimant’s claim is founded upon an order of a three-judge District Court in the Northern District of Illinois in the consolidated cases of Rybicki v. State Board of Elections, No. 81 C 6030; Crosby v. State Board of Elections, No. 81 C 6093; and DelValle v. State Board of Elections, No. 81 C 6052. On April 27,1984, the three-judge court ordered that Respondent pay Claimant the amount of $250,670.35 as and for attorney fees as a prevailing party.

Claimant’s motion for summary judgment seeks an award in the amount of $250,670.35 pus Q% interest per annum pursuant to statute.

The affidavit of Claimant’s counsel represents that Respondent does not oppose the entry of an order in accordance with the relief sought, and Respondent in fact has not objected to the motion.

It is therefore ordered, that Claimant, Jeffrey D. Colman, a partner acting on behalf of the law firm of Jenner & Block, is awarded $250,637.50 plus interest at the rate of 9% per annum from April 27,1984, in full and complete satisfaction of this claim.