author: Jann, J. JANN, J. JANN, J.

text:
    (Nos. 93-CC-3197, 93-CC-3198, 93-CC-3199 cons.
    Entertainment Specialists Ltd., Inc., Gary Lashinsky and Elizabeth Lashinsky, Claimants, v. Board of Governors of Western Illinois University, Respondent.

      Order filed April 20, 1998.

      Opinion filed July 24, 1998.

      Order on petition for reconsideration filed December 18,1998.

    Robert A. Barasa and John F. Cushing, III, for Claimants.
    Dunn, Goebel, Ulbrich, Morel & Hundman (David L. Stanczak, of counsel), for Respondent.
   ORDER

Jann, J.

This cause comes on to be heard on Respondents post-trial motion for leave of court to file affirmative defenses and conform the pleadings to the proofs. Claimant has responded. The Court being fully advised in the premises finds:

Claimant brought three separate complaints, each alleging a cause of action in tort relating to the death of a Lipizzaner stallion. The Court, by its own motion, hereby consolidated these causes which arose of the same circumstances and incident as Cause No. 93-CC-3197.

Claimants complaints seek a total of $300,000 ($100,000 for each animal) for the demise of the stallions while performing at Western Illinois University (WIU), Macomb, Illinois, on October 9, 1992. The animals ingested toxic plants on WIU premises.

The complaint in this matter was filed May 21, 1993. The trial was commenced on May 1, 1996, and all proofs closed and parties rested on October 17, 1996. A briefing schedule was set and Claimant and Respondent filed their briefs and Claimants reply on April 21,1997, June 20,1997 and August 18,1997 respectively. Yet, on August 20, 1997, more than ten months after the parties rested, the Respondent filed their motion for leave of court to file the affirmative defense of comparative negligence.

Section 2 — 616(a) of the Code of Civil Procedure provides that “(a) At any time before final judgment amendments may be allowed on just and reasonable terms * * *.” 735 ILCS 5/2 — 616(a).

The issue before the Court is interpretation of “just and reasonable terms.”

Respondent urges the Court to exercise discretion and allow Respondent to amend its answer to conform with the pleadings and more clearly define the issues.

The law is clear that there is no absolute right to amend an answer and it is not favored as trial commences. DiBenedetto v. County of DuPage (2nd Dist. 1986), 141 Ill. App. 3d 675, 96 Ill. Dec. 199, 204, 491 N.E.2d 13, 18.

Illinois courts have consistently refused to allow defendants to amend their answer to allege contributory negligence during the trial phase of the proceeding where the Respondent failed to assert a persuasive explanation for failing to raise the defense during the months preceding and during the trial. See American Pharmascal v. TEC Systems (2nd Dist. 1987), 161 Ill. 3d 351, 113 Ill. Dec. 623, 515 N.E.2d 432 (defendant not permitted to inject two new theories, including claim of contributory negligence, by way of an amended answer at the close of the plaintiff’s case without satisfactory explanation for failure to raise defenses during four-year period litigation was pending); Mayfair Construction Company, Inc. v. Security Insurance Company of Hartford (1st Dist. 1997), 51 Ill. App. 3d 588, 9 Ill. Dec. 509, 513, 366 N.E.2d 1020 (defendant not permitted to assert affirmative defense after plaintiff rested case at trial without persuasive reason for delay when defendant knew facts constituting affirmative defense); Green v. University of Chicago Hospitals and Clinics (1st Dist. 1994), 258 Ill. App. 3d 536, 197 Ill. Dec. 268, 274, 631 N.E.2d 271 (defendants not permitted to amend to assert plaintiff’s contributory fault on eve of trial where defendants were aware of facts from outset of litigation and no reason offered as to why defense not asserted earlier); Carlisle v. Harp (5th Dist. 1990), 200 Ill. App. 3d 908, 146 Ill. Dec. 355, 558 N.E.2d 318 (defendant not permitted to amend to assert plaintiff’s contributory negligence after trial began where record indicated defendant knew facts and was mistaken about need to raise affirmative defense); Johnson v. Abbott Laboratories, Inc. (2nd Dist. 1992), 238 Ill. App. 3d 890, 179 Ill. Dec. 84, 605 N.E.2d 1098 (defendant not permitted to amend to assert affirmative defense on day trial commenced where no apparent reason why defense not presented earlier during one and one-half years case was pending, defendant had ready access to relevant information, and defendant offered no reason for delay).

We have also held that other defenses which are non-jurisdictional but conditions precedent to pursuing a cause before this Court are considered waived if not asserted prior to trial. Wilson v. State (1994), 46 Ill. Ct. Cl. 20.

As Claimant is no longer required to plead freedom from contributory negligence under Illinois law, the burden to plead and prove contributory negligence lies with Respondent. Russell v. State (1990), 42 Ill. Ct. Cl. 83.

Respondent had approximately 3 years from the filing of Claimant’s complaint to hearing to assert contributory negligence. The facts herein are not indicative of newly discovered evidence or facts unknown to Respondent prior to trial which might support the granting of Respondent’s motion.

In their objection to Respondent’s motion to amend, Claimant persuasively argues that Respondent’s untimely attempt to amend their answer alters the nature of proof required and results in surprise and prejudice to the Claimant. Clearly, it is patently unfair to Claimant to allow Respondent to amend in this final hour just prior to judgment, as Claimant has had no opportunity to properly refute the allegations. It would be especially unfair to grant the motion in light of the fact that Respondent never offered any reason for its failure to amend in a timely fashion.

•• To allow Respondent to amend and assert affirmative defenses at this late date would result in unfair surprise and prejudice to Claimant. Respondents motion must therefore be denied.

We note that both parties requested oral argument upon submission of post-trial briefs. However, it is unclear to the Court whether argument is presently desired or. necessary in light of our ruling herein. The parties are advised that the commissioner has forwarded her recommendation and trial transcript along with the parties’ briefs for our consideration, in addition to the prior submissions of record. We are prepared to make a ruling based upon the record.

The parties are requested to advise the Court within 15 days of entry of this order if they desire oral argument. If no such notice is given, the Court shall rule upon the récord without further proceedings.

OPINION

JANN, J.

Claimants brought three separate complaints, each alleging a cause of action in tort relating to the death of a Lipizzaner stallion. The three horses were alleged to have died as a result of ingesting toxic Japanese yew plants which were owned and maintained by State agents at a State-owned and operated facility where the horses were performing in a show. The Claimants seek judgment in the maximum amount of $100,000 for each stallion for a total aggregated claim of $300,000;

Respondent filed a post-trial motion to assert affirmation defenses, most notably, contributory negligence. Respondents motion was denied by our order of April 20, 1998.

Facts

Claimants Case

Gary and Elizabeth Lashinsky own and operate a company called Entertainment Specialists, Ltd., which produces and tours a show nationally and internationally called “The Wonderful World of Horses,” featuring royal Lipizzaner stallions. The royal Lipizzaner stallions are rare, unique horses bred and trained to perform unusual and difficult moves for entertainment purposes. Of the fewer than 100 Grand Prix. trained Lipizzaners in the world, Claimant owns about a dozen. Horses of this type and trained at that level are valued at approximately $500,000 according to the testimony. The three horses at issue in this case are named Darinka, Bella Mia, and Regina.

On October 9, 1992, the Wonderful World of Horses was scheduled to arrive and perform at Western Illinois University, Macomb, Illinois (hereinafter referred to as “WIU"). Elizabeth Lashinsky testified that, in the weeks preceding the show, a technical requirements list was forwarded to the contact person at WIU. WIU was further notified that the show required a place to hose down and clean or groom the horses prior to their appearances.

On October 9, 1992, the horses arrived at WIU by trailer at about 5:30 p.m. and began preparation for an 8:00 p.m. show. Billie Hoyt, tour manager for Claimant advised the WIU agent attendant that a water supply and a private area to clean and prepare the horses was needed.

The WIU agent directed Claimant to a designated wash area where the horses were to be washed, which was outside the Western Hall facility next to some bushes and a spigot where Claimant connected their hoses. Each horse was washed, tied, groomed and left standing by agents of the Claimants. (Western Hall is an arena-type facility for sports, concerts and other shows.)

That night, during and following the performance, Darinka, Bella Mia, and Regina died. Regina collapsed a little over an hour into the show. The show was terminated, and the other three horses on the stage were sent backstage. A few minutes later, Regina died. Darinka collapsed backstage and died very quickly. The other horses were loaded on the trailer and taken to stables. Around 2:00 a.m., Bella Mia died at a Macomb stable.

Autopsies were performed on the three horses and it was determined the horses had ingested toxic Japanese yew plants. The same type of yew plants were located in the area where the horses had been groomed outside Western Hall.

Claimant produced Ronald Trace, a landscape architect and qualified expert in the area of toxic effects of certain vegetation. Mr. Trace identified the authoritative treatise in the area of woody landscape plants as Michael Dirrs “The Manual of Woody Landscape Plants.” The fourth edition of Dirrs book contained a passage under the yew genus “taxus” which was read into the record as follows:

“Yews are among the most toxic of plants. They appear to be poisonous all seasons of the year. The. toxic principal is taxine. Foliage, bark or seeds, whether dry or green, are toxic to people and to all classes of livestock.”

Dirrs book also reported that cows had been observed to have died from eating very small amounts of yew foliage.

Trace also cited, “A Field Guide to Trees and Shrubs” and “A Field Guide to Edible Wild Plants,” produced respectively by the National Audubon Society and the National Wildlife Federation. The latter book classified the yews “poisonous” and showed a skull and crossbones next to the words “American yew.” Under this section describing the plant, it says, “Warning: the seeds themselves and the wilted foliage contain the heart depressing alkaloid taxine.” Based upon the prevalence of these publications and the common use of yews in landscaping, Trace was of the opinion that the WIU, which had a horticulture school, did have, or should have had, information on the toxicity of the Japanese yew.

Like other yews, the Japanese yew, an import from Asia and parts of Europe, contains taxine, which acts as a heart depressant. Trace, long an owner of horses himself, was aware that a horses ingestion of Japanese yew could cause death. Based on Traces personal knowledge and the published material, Trace opined that it is commonly known that horses must be kept away from yews and their toxin. He testified that horses like to eat. frequently and a lot, and proximity to yews coupled with the lack of more attractive forage presents a danger of ingestion.

The Respondents Case

Dr. Charles Spencer, Dean of the College of Health, Physical Education, and Recreation at Western Illinois University, testified for Respondent. As dean, Spencer was responsible for the University’s Western Hall facility which was used for concerts, circuses, athletic events, and other performances. Spencer acknowledged that Western Hall was leased by Entertainment Specialists on October 9, 1992. Entertainment Specialists indicated its needs in its contract, Claimants’ exhibit C. Spencer was the contact person for this show on behalf of WIU.

A few days before the show, Entertainment Specialists called and asked for an available area in Western Hall to wash the horses. Spencer said there was no water available in the facilities, but directed them to a spigot on the east side of the building, the only one on the exterior of the building. Respondents exhibit 2, a floor diagram of Western Hall showing the location of the yew plants and water spigot, revealed that the spigot attached to the side of the building was located directly between and behind two yew plants. A parking lot was immediately adjacent to the east side of the building.

Spencer knew yew plants were growing along the east and north sides of Western' Hall as part of its landscaping. The yews had been there since at least 1988.

Spencer was present on October 9, 1992, when the horses arrived, and. he saw them being washed and groomed in a restricted area. Spencer first learned about tire toxicity of the yew plants after being notified of the autopsy results. He testified that if he had known of their toxicity, he would have considered the adjacent area to be unsafe and would not have allowed the horses to be cleaned there.

Spencer testified the university had an agriculture department that involved livestock and that the livestock did not graze in the vicinity of Western Hall. The University’s animals were confined to the exterior of the campus on a farm two miles away from the Hall.

Dr. Jon Wolf, a professor in the horse science program at Black Hawk College in Kewanee, Illinois, testified for Respondent. Black Hawk College offers an associate’s degree in horse or equestrian science.

Dr. Wolf testified that a long list of weeds, plants, and trees can cause colic or death in horses. Black Hawk students were instructed about some of the common toxins found in pastures and crop areas as part of their curriculum. Dr. Wolf testified that he also teaches them that a horse may be tied up only if the environment is “totally safe.” A horse should not be tied up in an area where foodstuffs are uncertain or the environment cannot otherwise be identified as totally safe by its handler or rider.

Dr. Wolf agreed that washing a horse requires the use of a spigot, that it is perfectly acceptable to wash a horse on a grassy area, and that he had seen that done on farms. While he would expect a horse to prefer grass over Japanese yew, that preference might not prevail when grass is no longer growing, as in the fall, or when a horse is curious, bored, or has watched another horse nibble at the yew. Dr. Wolf stated that horses have no instinctive knowledge that something is toxic.

Dr. Wolf testified that a number of equine nutrition books have a chapter on poisonous plants. In fact, Dr. Wolf found an article in one of his own magazines on yew plants that said they are highly poisonous and that horses should not be allowed to get near them.

The Law

The law is well established that there are three elements to recovery sounding in tort: a legal duty by defendant to plaintiff, a breach of that duty and damages proximately resulting from that breach. Ordes v. State (1991), 43 Ill. Ct. Cl. 272.

The Claimant asserts a duty owed by Respondent pursuant to invitee status. An invitee is defined as one who enters the premises of another with the owners express or implied consent for the mutual benefit of the invitee and owner. (Rhodes v. Illinois Central Gulf Railroad (1966), 172 Ill. 2d 213, 216 Ill. Dec. 703, 711, 655 N.E.2d 1260.) When the State occupies and takes charge of property, it is bound to use reasonable or ordinary care and prudence to keep it reasonably safe for the benefit of those who come upon it as invitees. (Peters v. State (1984), 36 Ill. Ct. Cl. 255, 257; Lambatos v. State (1992), 44 Ill. Ct. Cl. 238.) The existence of the legal duty imposes a standard of reasonable care and requires more than a possibility of an occurrence.The harm must be foreseeable. Ma v. State (1993), 45 Ill. Ct. Cl. 180.

Claimant argues that the standard of ordinary care is heightened due to the fact that the Respondent, as occupier of the premises, is expected to have superior knowledge of the premises’ condition and that the Respondent is held to a higher standard of knowledge of defects in the premises than is an invitee. Claimant argues that the State has a duty to remedy or warn of a defective condition notwithstanding the fact that it had no actual knowledge of the condition, because the condition should have been discovered in the exercise of reasonable care. Peters v. State (1984), 36 Ill. Ct. Cl. 255.

Claimant urges the Court to accept as fact that, given the toxicity of the plants, the Respondent could have discovered the danger through ordinary care.

In this case, it is clear that the Respondent owed Claimant a duty of reasonable care; however, Respondent need not anticipate every danger. It is undisputed that the yew bushes are commonly used in landscaping. The danger the yew bush poses is not unique to Respondent’s property, as they are commonly used in landscaping. The yews in this location had been growing around Western Hall since at least 1988. During that time, despite using Western HaE for 20 to 25 events each year, there is no documented case of any person, child or animal having faEen El from eating yews. The history of usage of the facility also included performances by the Shrine Circus which featured large animals and suffered no similar tragedy.

There exists an assumption that the property owner is more familiar with the property than a visitor. The property owner is, therefore, likely to be more familiar with any dangerous condition on the property. It is this presumed unequal knowledge, particularly in situations where the visitor to the property is unlikely to appreciate the danger, that is the basis for the creation of the assumed duty. Tuley v. State (1995), 47 Ill. Ct. Cl. 396.

In Wotiz v. Gruny (5th Dist. 1996), 281 Ill. App. 3d 50, at 52, 667 N.E.2d 102, the Court held that:

“* 6 6 no one is expected to guard against harm from events which are not reasonably anticipated at all or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 376, 308 N.E.2d 617, 619; West v. Faurbo (1978), 66 Ill. App. 3d at 819, 384 N.E.2d at 459.) The creation of a legal duty requires more than a mere possibility of occurrence. Cunis (19 ), 56 Ill. 2d at 376, 308 N.E.2d at 619 6 6 V

Furthermore, the Fifth District Appellate Court held, in Hodges v. St. Clair County (5th Dist. 1994), 263 Ill. App. 3d 490, 636 N.E.2d 67, 200 Ill. Dec. 876, as follows:

“A duty to warn of a particular hazard will be imposed only where there is unequal knowledge, either actual or constructive, and the defendant knows or should know that injury may occur if no warning is given. 263 Ill. App. 3d 490, 492."

Claimants urge the Court to impute the knowledge of the yews’ toxicity to the Respondent because WIU has an agriculture department which teaches horticulture, and therefore must have faculty members who are familiar with yews’ toxicity. However, although the university does have an agriculture department, there is nothing in the record to indicate the existence of persons at the university knowledgeable in the area of horticulture or toxic plants. Furthermore, Spencer testified that he personally knew nothing of the yews’ toxicity until this incident. In fact, neither the Claimant, Gary Lashinsky, nor any of his professional staff was aware of the danger of the plant prior to this incident.

The yew plants did not constitute a hidden danger that was known only to the Respondent. They were in open view, as visible to the Claimants and their employees as to the university and its employees. See Alcorn v. Stepzynski (3rd Dist. 1989), 185 Ill. App. 3d, 540 N.E.2d 823, 132 Ill. Dec. 901; Mullen v. Board of Trustees of University of Illinois (1985), 38 Ill. Ct. Cl. 44.

Foreseeability of the danger requires knowledge, not only of the toxicity of the yews to animals, but also of the horses’ propensity to nibble at them. The latter is moré within the expertise of the individual Claimants who have been in the business of training and showing horses for approximately 27 year's. In that time, they have developed great expertise in caring for and training horses. They also testified that their head trainer, Andrea Spencer, who is very knowledgeable on how to keep horses healthy was with the traveling show at the university when the horses died. Respondent’s expert, Jon Wolf testified that horses are known to nibble at everything, and that persons familiar with horses learn to keep horses away from anything they might nibble at that is not in their diet. They are taught not to tie them up except in a totally safe environment. If they are unfamiliar with any plants at the location, the horses should not be tied up there.

Ey contrast, Charles Spencer of the university had no background in either equine eating habits, training or care, or in horticulture and toxicity of plants. Clearly, the persons familiar with horses,-their eating habits and dietary needs are in the better position to recognize the danger posed by the Japanese yews, rather than the university, whose dealings with animals of any kind at Western Hall is limited. The university did not possess the superior knowledge of a danger in this case which could impose a duty upon the university to protect the Claimants’ horses.

There is no evidence that Respondent had knowledge of a potentially dangerous condition in the Japanese yew bushes. Respondent did not have actual or constructive notice and had no reasonable expectation of the danger at issue. Claimants have failed to establish Respondents breach of its duty of reasonable care owed to Claimants.

Although this Court must acknowledge the tragedy of the Claimants’ loss, legal liability for the loss does not rest with the Respondent State of Illinois. These claims must be denied.

ORDER

JANN, J.

This cause coming before the Court on the motion of the Claimants for reconsideration; due notice having been given and this Court being fully advised:

It is hereby ordered that:

Respondents have filed a response opposing Claimant’s petition for reconsideration. Claimants filed a reply.

The Court has carefully reviewed the record herein and finds as follows:

1. Claimants assert the Court erred in applying the appropriate tort law to this cause. Claimants’ contention is that the Court chose to imply a personal injury standard regarding invitees to State property rather than a property damage standard.

2. Claimant at no time prior to post-trial arguments raised said argument and its argument’s focus upon its status as an invitee.

3. Claimants assert creation of a bailment by the State which is not supported by the record.

4. If a bailment were assumed arguendo, Claimant has failed to prove that the State violated its presumed duty of ordinary care.

5. Claimants’ arguments as to the relative duties of the parties as regards foreseeability of harm are, at best, tenuous and fly in the face of common sense. Any reasonable person with 27 years of experience in equine husbandry must assume some responsibility for rudimentary knowledge in the care of particularly rare and valuable creatures in his care. No ten-year-old 4-H member would allow an animal to freely graze in unfamiliar territoiy.

6. Claimants failed to prove their allegations regarding their alleged inability to inspect and reject the grooming site. We are asked to imply a contract of adhesion. The proofs indicate Claimants had no written agreement indicating a “horse-proof’ environment for grooming. Claimants rely upon oral agreements concerning a convenient location and ask that responsibility be imputed to Respondent based upon Claimants’ desire in part to avoid property damage to lawns or other property of the lessor. Claimants essentially seek to impute liability for a tragic loss of truly noble beasts which were shamefully neglected by their handlers. Simple nose baskets in common usage by far less experienced horsemen on far less regal horses would have prevented this incident.

Our previous order denying these claims is affirmed and the petitions for reconsideration are hereby denied. These causes are dismissed with prejudice.


source: Caselaw Access Project

author: Raucci, C.J.

license: Public Domain

text:
    (No. 94-CC-0390
    Doreen M. Rasbaugh, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 14, 1999.

    Caldwell, Berner & Caldwell (Jeffrey A. Rou-HANDEH, of counsel), for Claimant.
    Jim Ryan, Attorney General (Paul Ciastko, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This cause is before the Court on Claimant Doreen M. Rasbaugh s complaint at law based upon the tort of wrongful incarceration which is alleged to have taken place on October 26, 1992. The complaint alleges that Respondent, “through the McHenry County Circuit Clerks Office, 19th Judicial Circuit, McHenry County, maliciously and without probably (sic) cause caused the Claimant to be arrested upon a warrant brought before a Judge.” The complaint seeks $75,000 in damages.

In compliance with an order of the commissioner, the Claimant filed a memorandum. The 22-page document includes an affidavit by Claimant and other documents that she relies upon in support of her claim. She states that she is seeking $50,000 in damages. Claimant cited Drury v. County of McLean (1982), 89 Ill. 2d 417, 433 N.E.2d 666, 60 Ill. Dec. 624, at the prehearing conference as support for properly bringing the case before this Court.

Respondent has not filed any documents in support of its position.

Claimant appeared in the Circuit Court at 9:00 a.m. on September 22, 1992, on four traffic matters. The four cases were continued until September 28, 1992, on motion of Claimant.

Claimant had filed for protection under chapter 13 of the federal bankruptcy laws and the traffic cases were being continued pending the results of the bankruptcy. On September 28, 1992, two of Claimant’s cases appeared on page 18 of the Court call set for 9:00 a.m. and the other two appeared on page 23 of the Court call. Claimant appeared in Court at 9:00 a.m. and was given a Court date of December 12 (this may be a typographical error in the affidavit), 1992, at 1:30 p.m. Claimant appeared in Court on that same date, at 1:30 p.m. and on her motion the cases were continued until December 21, 1992, at 1:30 p.m.

A warrant of arrest was issued on September 28, 1992, for the arrest of Claimant, "for the offense of FTADWLS (2 count) petition to revoke, uninsured motor vehicle (and) violation of classification.” All four traffic case numbers are listed on the warrant. The amount of bail was set at $3,000.

Claimant was falsely detained on October 26, 1992, at the county jail and released on the next day. Claimant was subjected to extreme humiliation and denied her liberty. “Claimant was strip searched and placed in an isolation room in the McHenry County Jail where members of the opposite sex were permitted to view her and she could not use the restroom facilities; and that as a result, Claimant was forced to urinate on herself.” On the morning of October 27, 1992, when it was realized that the Claimant was wrongfully detained, she was immediately released on her own recognizance.

Claimant states that she did not sleep for four nights and has had trouble sleeping since the incident. She states that she suffered psychological damage. The arrest occurred while Claimants ten-year-old daughter was present.

The issue in Drury was whether McLean County was hable for certain conduct of the clerk of the Circuit Court. The Illinois Supreme Court held that the clerk of the Circuit Court is not a county official. (433 N.E.2d 670.) After reviewing the debates of the sixth Illinois Constitutional Convention, the Supreme Court concluded that the clerk of the Circuit Court is a nonjudicial member of the judicial branch of State government. 433 N.E.2d 669.

Because of the disposition we make of this case upon the merits, we do not decide whether we have jurisdiction of claims against clerks of the Circuit Court.

Respondent has not asserted any facts nor has it disputed any of the facts offered by the Claimant. Claimant does not specifically identify how or why the clerk of the Circuit Court is responsible for the false detention. The warrant of arrest is signed by a judge. Claimant might assert that the clerks personnel provided incorrect or incomplete information to the judge. However, Claimant does not assert the specific information which was withheld or provided, or the manner in which it was accomplished.

There is a copy of a Court order that appears to have been drafted by an attorney for Claimant, and entered by Judge Prather on September 28,1992, continuing only two of the cases (91 TR 16139 and 91 TR 16140) to December 21, 1992. Sheet 18 of the September 28th Court call does not indicate that the other two cases (91 TR 16138 and 92 TR 1153) were continued, but does include handwritten notations of “warrant 3,000 on 1:30” with a cross-out mark. Sheet 23 of the Court call on September 28, does not indicate that the two driving while suspended violations were continued, but contains a handwritten notation “see page 18 on 1:30.”

On sheet 13 of the Court call for September 28, all four cases are listed, two typed and two handwritten. There are notations handwritten in the margin that state “CN 9:00” crossed out, and “12-21 at 1:30 sup. ext.” Claimant does not reference sheet 13 in her affidavit.

Apparently Claimant was under orders of Court supervision for the 91 TR 16138 and 92 TR1153 citations. We will not speculate on the meaning of the handwritten notations or absence of such notations to achieve an interpretation not requested by Claimant.

Claimant has referred to her claim as one for “false detention” (Claimants affidavit) and “wrongful incarceration” (complaint). The facts attendant to her arrest were not offered by Claimant and are not part of this record. From the undisputed facts, it is clear that Claimant does not have a claim against the Respondent for false arrest or imprisonment. (Rodes v. State (1994), 46 Ill. Ct. Cl. 360.) A warrant was issued for her arrest and there is no allegation that a State officer participated in her arrest. We have stated that an arrest authorized by statute cannot be grounds for civil liability. Howard v. State (1993), 45 Ill. Ct. Cl. 214, citing Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604, 55 Ill. Dec. 458.

Claimants cause of action is more properly one of negligence. Claimants contention is that the circuit clerk, or her employees, wrongfully caused the issuance of a warrant for her arrest, which ultimately caused her injury or damages. For Claimant to recover against the State, she must prove by a preponderance of the evidence that the State had a duty to the Claimant, the State breached its duty, and the breach proximately caused Claimants injuries or damages. Stanley v. State (1986), 39 Ill. Ct. Cl. 107; Berger v. State (1988), 40 Ill. Ct. Cl. 120.

Neither party has cited a case in support of their position. A review of the reported cases before the Court does not reveal any case with a similar fact pattern. In Rodes v. State (1994), 46 Ill. Ct. Cl. at 376, the Court found that Claimant was provided notice of her suspension of driver’s license and she disregarded the notice (which ultimately resulted in arrest for driving without a license). Although Rhodes is instructive on the law, the facts are dissimilar and are of little guidance to a resolution of this case.

In this case, Claimant’s sworn statement is drat she appeared in Court at 9:00 a.m. on September 28, 1992, and “was given a court date of December 12,1992 at 1:30 p.m.” (Claimant’s affidavit, paragraph 7.) She does not state who gave her the continued date. The notations on the Court call do not reference a date of December 12 (or 21). (Claimant’s memorandum, p. 18.) There is not a copy of the file jacket for 9:00 a.m. Court call, nor is there a written order. Claimant’s sworn statement is that she, “appeared in court on September 28, 1992, at 1:30 p.m., and on her motion the cases were continued for status until December 21, 1992 at 1:30 p.m.” The notations on the Court call on sheet 23 do not indicate a continuance of the 1:30 cases to December 21. The notations on the Court call on sheet 13 might indicate a continuance of all four cases to December 21st. Curiously, Judge Prather entered a written order prepared by an attorney for defendant, continuing only the two 1:30 p.m. cases to December 21. A copy of the file jacket shows the 1:30 cases being continued until December 21,1992.

Based upon Claimants statements, and the order entered by the Circuit Court, it is clear that the warrant of arrest should not have been entered for the two 1:30 p.m. cases (91 TR 16139 and 91 TR 16140). It is less than clear whether the warrant should have been issued for the two 9:00 a.m. cases (91 TR 16138 and 92 TR 1153). The Court need not determine at this juncture whether the warrant was incorrectly issued on the 9:00 a.m. cases.

No evidence has been offered to demonstrate the involvement or activity of the clerk of the Circuit Court, or her employees, in the conduct of the Court calls, granting continued dates, recording information, or issuing warrants. The Court finds that Claimant has not met her burden of proof. Assuming that the warrant should not have been issued, Claimant has still not demonstrated by a preponderance of the evidence that the clerk, or her employees, breached a duty to Claimant. The clerks name or signatures does not appear on any of the documents offered by Claimant. More importantly, the alleged duty has not been clearly shown. No role or involvement by the clerk is alleged. Therefore demonstration of a breach is not possible.

The claim will be denied.

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

       91 TR 16138 (Driving on Suspended License), 91 TR 16139 (Uninsured Vehicle), 91 TR 16140 (Violation, License Class.) and 92 TR 1153 (Driving on Suspended License). The four were previously set for September 8. Claimant appeared and continued them until September 22. All four were on the same page of the Court Call.


author: Epstein, J.

text:
    (No. 94-CC-0472
    Thomas Rubidoux and Richard Sasak, Claimants, v. Northeastern Illinois University and the Board of Governors of State Colleges and Universities, Respondent.

      Opinion filed October 15, 1998.

    Jam;es Potter, for Claimants.
    Dunn, Goebel, Ulbrich, Morel & Hundman (David L. Stanczak, of counsel), for Respondent.
   OPINION

Epstein, J.

This claim for $113,927.12 for unpaid rent and consequential damages arises out of the Claimants’ rental of apartments in their building, located at 4900 N. St. Louis Avenue, as a student residence for student-athletes of the respondent Northeastern Illinois University (the “University”) in the 1990-91 academic year under a letter agreement with the university’s Director of Athletics, Intramurals & Recreation.

The case was tried to Commissioner J. Patrick Hanley, who has filed his report to this Court. The case is before us on the second amended complaint, the trial record, the parties’ post-trial briefs, and Commissioner Hanley’s report. The exhaustion of alternative remedies issue, which was reserved when we denied without prejudice Respondent’s motion to dismiss for failure to exhaust, is also before us. The full Court heard oral argument on the merits, and we now render our decision.

Nature of the Claim

The second amended complaint is in three counts: count I asserts a breach of contract claim, based on the August 1, 1990 letter agreement signed by Claimant Sasak and by Director Dennis Keihn; count II asserts an “implied contract” claim, based on the parties’ alleged intent, the apparent authority of Director Keihn, and the parties’ course of conduct; count III asserts a misrepresentation claim, based on the University’s alleged misrepresentations of its intent to use the Claimant’s building, its commitment to the agreement with Director Keihn, and its ability to pay the unpaid back rents on apartments rented to University students.

Claimants seek $40,668.75 in unpaid rents for 1991-92, $20,167.69 in unpaid rents for 1990-91, and $16,438.03 for damage to the premises caused by the resident student athletes, plus interest at 9 percent.

The Facts

At the trial, each side presented three witnesses: Thomas Rubidoux, Wayne E. Silverman and Richard Sasak for the Claimant; and Thomas Rubidoux, Rees Johnson, the head mens basketball coach at the university, and Richard Knar, Jr., an assistant mens basketball coach at the university for the Respondent. The testimony of two witnesses, Dennis Keihn and Peter Wolstein was given by their evidence depositions. Claimants eight exhibits and Respondents seven exhibits were all admitted into evidence.

Testimony of Thomas Rubidoux

Mr. Rubidoux, one of the Claimants, testified that he and his partner Richard Sasak, owned a 31-unit apartment building at 4900 to 4908 North St. Louis, in Chicago, which they purchased in 1988; all units were occupied. He was approached by Mike Fogel, an employee of the university and the womens basketball coach, who asked whether Claimants would be interested in housing student athletes from the university. Fogel told Claimants in June, 1990 that Dr. Dennis Keihn, the university athletic director, had authority to move students in and to sign agreements. Claimants told Fogel that they were not interested in having young students in the building. About a week later, Dr. Keihn called Rubidoux and requested a meeting. Rubidoux and Sasak met with Keihn one week later. Keihn said that the university wanted to find housing for its student athletes but emphasized the men basketball players.

Claimants told Dr. Keihn that they were reluctant for a variety of reasons, one being that the building was then full. Dr. Keihn told them that the university would be responsible for handling the rents and making sure there was no destruction to the building. Dr. Keihn told them he had the authority to pursue contracts and had funds available to him.

Mr. Sasak wrote a letter to Dr. Keihn. (Claimants’ exhibit no. 1.) After that letter, Dr. Keihn met with the Claimants a second time. Dr. Keihn told Claimants that the university would be responsible for rent and damages. After this second meeting, Dr. Keihn faxed a July 16, 1990, letter to them. [Claimants’ exhibit no. 2.] Both parties were then looking for a multiple year commitment. Dr. Keihn told Claimants that he had talked to the university president.

Dr. Keihn and Claimants had a third meeting. Claimants were concerned about the apartments during the summer months; it was decided that 12 months of rent would be paid over nine months and the university would be free to use the apartments during the summer months. Coach Rees Johnson attended the third meeting. Although Dr. Keihn had earlier indicated that the university would pay Claimants directly, he told them this would not be possible for the first year because all budgets had already been established. He asked that Claimants accept the rent money from the students or the coaches for the first year.

After the third meeting, Dr. Keihn faxed an August 1, 1990, letter to Claimants. (Claimants’ exhibit no. 3.) Rubidoux understood the language of the letter to mean that, in the first year, the university could not pay them directly and they would be paid through the students and coaches. The university was given keys to the apartments. Claimants did not have control over the decision of which students occupied which apartments. A fax from Coach Knar was sent to Claimants to show which students were to be in each apartment. (Claimants’ exhibit no. 4.) Eight apartments were made available for students.

Rubidoux had no doubt that Claimants’ agreement was with the university. Dr. Keihn told Claimants that the university guaranteed the payments. Claimants received money from university employees on three occasions. No one ever told them that they did not have a contract with the university.

In October, Rubidoux called Dr. Keihn to tell him they were not getting paid. Dr. Keihn told him to get leases signed. Dr. Keihn told him that he would make sure Claimants were paid. Subsequent to the telephone call to Dr. Keihn, Rubidoux sent a letter dated October 23, 1990, to Dr. Keihn. Subsequent to that letter, Keihn said Claimants would receive some money in the next week or so. They received a payment of $3,000 to $3,500 through Coach Johnson at the building the first week of November.

Claimants did not get any leases signed. The rent arrearage continued. Dr. Keihn told Claimants that by the end of January he would pay for all back rents and would pay for the rest of the year for these students. In January, Dr. Keihn said it would take 30 to 45 days to get Claimants paid. In February, Rubidoux had several conversations with Dr. Keihn. In March, Rubidoux told Dr. Keihn that between $10,000 to $12,000 was due. Keihn said that was not a problem, and told Rubidoux to meet Coach Johnson.

Claimants met with Coach Johnson in the first week of March. Johnson told them he was giving them $3,000 to $3,500, not the $10,000 to $12,000 owed. Rubidoux was “shocked” and “furious,” and testified that Coach Johnson indicated that he thought that maybe we had been taken a little bit.” According to Rubidoux, Johnson explained that he had found in his dealings that Dr. Keihn had not always been truthful or forthcoming.

Claimants called Dr. Keihn who invited them to his office. At this meeting, Claimants were told that the money was forthcoming. They never received it. However, Claimants received rent money from individual students, and had a manager who sometimes collected rent from the students.

Dr. Keihn told Claimants that the university would pay for damage done to apartments. Rubidoux believed that Claimants were owed $19,800 as of May, 1991; the typical cost of painting an apartment is $300 to $400.

At the end of the school year, Claimants found some of the apartments "totally destroyed,” with holes in walls, toilets broken or missing, appliances destroyed, gouges in hardwood floors and worn carpeting. Rubidoux said repairs cost approximately $16,000.

Rubidoux still believed as late as August of 1991 that the university was going to continue to use the apartments. Claimants discussed the cost of repairs with Dr. Keihn, and explained that they did not have the capital to perform the repairs. Dr. Keihn said the university would stand behind the Claimants for the long-term commitment and would take care of them.

Claimants took out a second mortgage on their homes. Because of the rental season, the apartments were empty for the second year 1991-1992. Two of the apartments were rented in April or May of 1992. It took Claimants quite a while to fix the apartments.

On cross-examination, Rubidoux identified the apartments that were used by the student athletes as 2 South, 3 North and 3 South on the 4900 .side, and 1 North and 2 South on the 4904 side. (Respondents exhibit no. 1.) As of July 1990, all apartments were occupied with existing tenants. He explained how they worked with existing tenants to open up the eight apartments. Claimants did not spend any money in excess of what is normally spent to prepare apartments.

Claimants received three payments from the coaches totalling $10,000 to $10,500 that were comprised of cash, cashiers checks and personal checks from students. No university checks were received. Rubidoux said he believed the money was coming out of the university budget, being paid first to the students and then given to the Claimants. Dr.Keihn told Claimants that the students would be responsible for the utilities.

Previously, Claimants had never rented to a tenant without a credit check and a signed lease, but neither occurred with the student athletes. Claimants’ exhibit no. 6 refers to leases that were sent to Dr. Keihn, and indicates the leases have partial signatures. He indicated that maybe one or two students signed leases.

Testimony of Wayne E. Silverman

Mr. Wayne E. Silverman, C.P.A., testified that he compiled the loss figures for Claimants, but did not opine to their efficacy. From information provided by Claimants, Silverman computed the losses (see Claimants’ exhibit no. 8). Claimants’ damages claim, according to Silverman, includes the following: (1) lost rent for September 1990 to August 1991, $20,167.69; (2) labor costs for repairs, $8,867.16; (3) material costs for repairs, $7,570.87; (4) rent losses for the following year through May 1992, $40,668.75; for a total of $113,927.12.

Testimony of Richard Sasak

Richard Sasak testified that he is Mr. Rubidoux’s partner. He stated that Claimants’ exhibit no. 1, which is undated, was sent after Keihn’s July 16 letter (Claimants’ exhibit no. 2). He met with Dr. Keihn at the university in February 1991. Keihn told him that Claimants would be paid in March for the past due amounts and for the balance of the year. Keihn called later and told him to meet with Rees Johnson and money would be paid to Claimants by Johnson.

Claimants received $3,000 to $3,300 from Johnson. In June or July 1991, Keihn told Claimants that Mr. Jonaitis, the purchasing agent, was going to set up a method to make sure they were paid by the university on time. Keihn told him that Jonaitis would take care of the past due sum of $19,800.

Sasak believed that Keihn had the authority to make the commitments on behalf of the university. No one ever stated that they were not speaking on behalf of the university.

Sasak met with Mr. Jonaitis in August 1991, and told him Claimants wanted: (i) back rent of $19,800; (ii) the university to make future payments directly to Claimants; (iii) to make only eight apartments available. Sasak found out he “was fully duped,” when Jonaitis told him that he did not know what Sasak was talking about. Sasak handed him a copy of the August 1, 1990 letter and Jonaitis put his hand on his forehead and said “oh, my gosh,” according to Sasak, who perceived Jonaitis to be “in total shock.” His first comment was “Rich, I just wanted to tell you there is no slush fund in the university to cover this $20,000, to begin with.” Jonaitis said he would check with Keihn and the president of the university. When Jonaitis contacted Sasak later, he said it was the university’s position that it was not liable.

Claimants’ apartments were not fixed and ready to be leased in October 1991, during the rental season in Chicago. He agreed to participate in attempting to get leases signed at Keihns request because he believed it would facilitate getting paid. On cross-examination, Sasak indicated that during the beginning of the rental season in the fall of 1991, he thought the university was still going to use the apartments.

Testimony of Rees Johnson

Mr. Rees Johnson testified that he was the head coach of the mens basketball team at the university during the events of this case. He remembered meeting Claimants with Dr. Keihn in 1990. His recollection was that at the meeting, he was “like a mouse in a corner” and just listened. He does not remember the specifics of the conversation. He believes Keihn invited him to the meeting to let him know that a concern of Johnson s, housing for athletes, was being addressed. He never participated in locating housing for student athletes. Keihn always told him that the university was not going to get involved in housing, and that it would be left to the student athletes, but that Assistant Coach Knar would help them find places.

The scholarship athletes would receive a check from the university for living expenses, and those student athletes receiving financial aid would also receive checks. He remembers meeting with Claimants to give them some money. Keihn asked Johnson to “put a little pressure on” the student athletes that were behind in their rent to Claimants. He did so because Keihn told him that he wanted to be helpful to Claimants and to make the student athletes more responsible. Someone gave him a list of which students owed, and in what amounts. He talked with the athletes and collected as much money as he could. It was in the form of checks and cash, and although it was not the total owed, he gave it to Claimants.

Johnson did not have access to a budget or funds to pay Claimants, or for housing. On cross-examination, he indicated that he had not seen Claimants’ exhibit no. 4. He recognized the names of basketball players listed in that exhibit. At least nine of the players were on scholarship, probably partial scholarships. Each student was responsible for his living expenses. He did not recall Keihn saying that the Claimants’ relationship was with the students.

Johnson acknowledged that Keihn did not keep promises to him on salary level and a reimbursement of expenses. At the March meeting when he gave Claimants the payments, he told them that he was not responsible and the responsibility was the students’. He “was never too fired up about” bringing the money to Claimants. He gave Claimants a paper that stated the amount collected from each student, but never met with Claimants after the March 1991 meeting.

Testimony of Richard Knar, Jr.

Richard Knar, Jr. testified that he was the assistant men’s basketball coach at the time in question. He helped find housing for student athletes. He did not meet Claimants until students were moving into the apartments in the fall of 1990. Keihn had previously informed him that Claimants’ apartments would be available for student athletes. He prepared a list of students and sent it to Claimants. He did not recall ever giving Claimants any money for rent. He did not see Johnson give Claimants money for rent in the fall of 1990. Knar did not ever collect money from the student athletes for rent.

He saw leases signed by the athletes for their tenancy, but does not know what happened to them because he gave all documents to Keihn at his request. Keihn told him that the students were falling behind in their rent. Knar told the students they had to take care of the landlord. Keihn never told Knar that the university would pay the rent. Keihn always told him that the university would not pay for apartments. He never noticed extensive damage to the apartments.

On cross examination, he acknowledged that he could not recall during his deposition whether he saw leases, but now he remembers two specific ones that he saw. He did not have any discussions with Claimants in regard to their relationship with the students. He remembers that when the students moved in he took them to the bank and then to the apartments where they paid the building manager and they received receipts. He never took the students to cash their checks again and never handled the money. Although he heard both Keihn and Johnson say that the relationship was between the landlords and students, he did not hear them say it to Claimants. Students would receive a room and board check.

Testimony of Peter Wollstein

The evidence deposition of Peter Wollstein, Vice President of administrative officers of the university at the time of these events, was admitted. (Respondents exhibit no. 6.)

Mr. Wollstein s office did not play a role in attempting to find student housing in the summer of 1990. Keihn told him that some people expressed interest in accommodating student athletes, but he never had any contact with Claimants. He understood that each student would enter into their own contractual relationship with Claimants. The university did not pay any money to Claimants. Keihn did not speak for the university at the time in terms of contracting. He did not recall having a conversation with Keihn about presenting a proposal to the Board of Governors. Keihn could not enter a contract on behalf of tire university.

Testimony of Dennis Keihn

The evidence deposition of Dr. Dennis Keihn, athletic director of the university at the time of these events, was admitted. (Respondents exhibit no. 7.) As of the date of the deposition, Keihn was no longer employed by the university.

Dr. Keihn was director of athletics during the relevant time. The university had not entered into any leases with landlords for student athletes. He remembered meeting Claimants in July 1990, and they discussed the possibility of renting to student athletes. Kiehn recalled that their discussions included such things as “that the athletes were to sign leases and the athletes were the ones that were going to be responsible for the payment of the rent.” He told Claimants that the university was only tiying to help the students locate housing and he did not indicate that the university was interested in entering some type of agreement.

Kiehn received the undated letter from Sasak, and then sent Claimants the July 16, 1990, letter in response. He discussed the Claimants’ proposal with Vice President WoIIstein because he wanted to make sure the university was not responsible. WoIIstein did not state any objection to Keihn on the manner in which he was proceeding.

Keihn met several times with Claimants, and once with Johnson. He kept making “it plain to” Claimants that their arrangement was not with the university and that the student athletes were responsible. Although he “always made that very plain, even though they kept always tiying to come back and trying to say that this is an agreement with the university and the athletic department,” he never put it in writing.

Prior to sending the August 1, 1990, letter, he showed it to WoIIstein and discussed it with him. He believes Wollstein showed the letter to attorneys of the Board of Governors. He did not provide the security deposits or lists of students. He did receive calls from Claimants seeking rent, and he would tell them that he would talk to the coaches. He remembers Claimants sending some leases to the coaches. Claimant did not request that the rent be paid by the university. He constantly maintained that he was only acting to facilitate finding suitable housing, that university officials were kept abreast of events and he never made any statements to Claimants that would obligate the university in any way.

Discussion

We have summarized the testimony in this case in more detail than is strictly necessary to our decision because it is highly disturbing in at least two respects: First, someone is plainly lying, as the Claimants’ sworn versions of their dealings and conversations with Dr. Kiehn are irreconcilable with his sworn version of those dealings and conversations. Second, if Claimants’ version is accepted, even partially, the conduct of Dr. Kiehn towards these landlords is utterly reprehensible. His conduct was especially egregious, given that he was an agent of a public university which, as part of the State, is clothed with sovereign immunity and is not as fully subject to the laws of hability in this Court as is a private institution or even a local government in the circuit court.

Although our commissioner believed, and this Court accepts as true, most of the testimony of the Claimants, particularly as to their conversations and dealings with Kiehn, and although this Court rejects most of Dr. Kiehn’s testimony, the conversations and “representations” of Dr. Kiehn are only part of the relevant facts that determine our decision.

As we observed in our prior order on the exhaustion grounds, the threshhold issue in this case is the relationship (if any) between the Claimants and the university— and, concommitantly, the relationship (if any) between the Claimants and the university student-athletes. These issues, particularly the question of whether it was the university or the students who rented the apartments — and were thus the tenant(s) who had privity with the landlord/Claimants — are dispositive of the count I contract claim and are also dispositive of one aspect of the exhaustion issue which we have deferred until now. Because the exhaustion issue plays out somewhat differently on the different aspects of this claim, we turn first to that issue.

The Exhaustion Issue

Claimants in this Court are required to exhaust all. possible alternate sources of recovery for the damages or injury for which they seek recovery from the State. This rule is statutory and mandatory (section 25 of the Court of Claims Act; 705 ILCS 505/25) and is also implemented under section 790.60 of the Court of Claims Regulations. (74 Ill. Admin. Code 790.60.) This exhaustion of remedies requirement precludes recovery of an award by this Court until all other potential sources have been exhausted, and bars a claim for damages as to which recovery has not been sought.

In this case, it is admitted by the Claimants that they pursued no relief against the student-athletes who were (i) undisputedly the occupants of the apartments, and who were (ii) allegedly the cause of the physical damages to the premises (for which Claimants seek compensatory damages under each of their three counts), and who were (iii) arguably, but disputedly, the tenants of the apartments who were primarily hable for the rent. To the extent that Claimants had a potential claim against these known individuals, they must exhaust their relief against them before recovering in this Court. To the extent that they have failed to exhaust, Claimants are precluded here; and if the alternative recovery against those potential defendants is now barred (e.g., by limitations), the claims are barred in this Court by our exhaustion requirement.

In this case, the physical damage claims are plainly barred by Claimants’ failure to exhaust, as the damages to the premises by those persons would be a tort independent of their status as tenants, subtenants or otherwise. Having failed to pursue tort claims against the alleged perpetrators of physical destruction of their property, Claimants cannot prosecute such damage claims in this Court. (We note in passing that this conclusion assumes, but need not decide, that these Claimants would have a claim against the university for these damages.)

With respect to the larger damages claims of unpaid rent, the exhaustion issue turns on the question of whether or not Claimants, as landlords, had an action against the student-athletes who occupied the various apartments. This turns on the relationships between the parties and the students, and ultimately on whether the students were the tenants and were in privity with the landlord so as to permit a suit against them, thus requiring the Claimants/landlord to exhaust as to them. On the other hand, if the university was the tenant, as the Claimants contend, then the students were subtenants or some other status which would not permit the Claimants/landlord to sue them, in which event exhaustion is not a bar.

We accordingly turn to the count I analysis of the alleged rental or guaranty agreement between the Claimants and .the university.

Count I — The Contract Claim

Claimants contend that the letter agreement, dated August 1,1990 (Claimants’ exhibit no. 3), that was written and sent on university letterhead by Dr. Keihn, and that was countersigned as agreed by Claimant Sasak, was a contract between the university and Claimants. Claimants contend the contract thus created was either a rental agreement in which the university agreed to rent and pay for the eight apartments for two school years and the intervening summer, or was a guarantee agreement in which the university agreed to pay any shortfall in rent payments of the students.

The Respondent contends that the letter agreement, on its face, is not an agreement to rent or to guarantee any payments, that Dr. Keihn was not authorized to contract for the university, or to deal with student housing, that the agreement was not approved by the Board of Governors, as is statutorily required for university contracts, and that the agreement was not made in compliance with the State Purchasing Act.

We need not dwell long on this issue, as it is abundantly clear that the Sasak-Keihn letter agreement of August 1, 1990, does not purport to obligate the university to pay rent or to guarantee students’ rent, and clearly fails to comply with State and university requirements for a contract. In particular, the absence of corporate approval by the Board of Governors and the absence of lawfully delegated contracting authority in Dr. Keihn — neither of which are shown and both of which are burdens of the Claimant — preclude finding a binding contract.

We must also reject Claimants’ “apparent authority” contention as to Dr. Keihn. First, that doctrine has limited, if any, application to the State, where contractors are required to ascertain at their peril the true authority of purported agents of the State. (Dunteman v. State (1985), 38 Ill. Ct. Cl. 51; Bellini v. State (1982), 38 Ill. Ct. Cl. 701.) As this Court has pointed out, when dealing with the State, one cannot do so on a handshake. (New Life Development Corp. v. State (1965), 45 Ill. Ct. Cl. 65.) Second, the facts here do not bear out a good faith reliance on Keihn’s “authority” which was blatantly ineffective to produce rent or documentation early in the dealings between them.

Finally, we note some of the aspects of the parties’ agreement and course of conduct of this student housing debacle that not only fail to support Claimants’ contract theory of the case, but pretty well refute it.

First is the fact that the so-called agreement states that: “Each athlete will be paying for their share of the rent, etc.” (Claimants’ exhibit no. 3, p. 2). This is inconsistent with the notion of the university as tenant. Moreover, in this context, the absence of at least a nominally clear undertaking for the university to pay something is almost dispositive. Second, the students, or at least some of them, paid rent at least some of the time. Third, someone prepared leases for the students, which although not fully executed, shows an understanding as to who were the liable tenants, particularly in the absence of any evidence of any objection or protest by the student-athletes. Fourth, there is no showing of any university payment to the Claimants; the only payments that were made by university personnel were made by coaches, not through regular university fiscal officers and not by university check; those payments included cash, which derived at least in part from the students. Fifth, the fact that university coaches were paying student-athletes’ rent in cash was then, or should have been, an alarm bell for the Claimants as it now is for this Court.

With our conclusion that the university was not the renter or the tenant of the Claimants’ apartment, it necessarily follows that the student-athletes who occupied the premises and who were paying, or were supposed to pay, the rent were the Claimants’ tenants as a matter of fact and as a matter of law. In the absence of written leases, it is likely that the legal result was a month to month tenancy. That is nonetheless a tenancy, with privity, and supports a landlord’s right to sue for unpaid rent, which thus triggers this Court’s exhaustion requirement.

Accordingly, count I must be dismissed for failure to state a contract claim and as barred by Claimant’s failure to exhaust their alternative remedies against the student-athlete-tenants.

Count II — Implied Contract

Insofar as count II seeks damages for unpaid rent and for physical damage to the premises, it is barred by Claimants’ failure to exhaust their alternative remedies against the student-athletes, for the reasons discussed above.

However, insofar as count II seeks damages for unpaid rent, i.e., for the second school year of the alleged arrangement between the Claimants and the university (through Dr. Keihn), we would be obliged to consider it on the merits, except that we lack jurisdiction to entertain an “implied contract” claim. This Court has rejected implied contract claims, including quantum meruit actions, because our “contract claim” jurisdiction under section 8(b) of the Court of Claims Act (705 ILCS 5/8(b)) is limited to actual, express contracts “entered into” by the State, usually with the Claimant but sometimes with another when the Claimant is a third-party beneficiary. (See, e.g., Haendel v. Northern Illinois University (1996), 50 Ill. Ct. Cl. 224 (No. 90-CC-0234); Brighton Building Maintenance Co. v. State (1982), 36 Ill. Ct. Cl. 36.) Accordingly, we must dismiss count II for want of jurisdiction.

Count III — Misrepresentation

The unpaid rent and physical damages aspects of this claim are barred by the Claimants’ failure to exhaust their alternative remedies, for the same reasons set forth above with respect to counts I and II. However, we take up the second-year rent claim as to which there were no alternative sources of recovery (i.e., no student occupants or lessees) to exhaust.

This claim too must be rejected, notwithstanding the egregious conduct of Dr. Keihn, who seems surely to have misled the Claimants and, arguably, to have outright lied to them (although it is also obvious that Claimants behaved naively, if not worse).

Aside from the nettlesome issue of whether Dr. Keihn in his athletic department capacity was in a position with any real or apparent university authority to make representations as to student housing — which is pertinent to any claim of reliance on his representations — we find that Claimants have not proven any factual misrepresentation that might be actionable. Although Keihn may have been untruthful, his statements were not matters of fact, but promises or predictions of tire university’s future conduct — e.g., promises or representations of future payment — or of the university’s future position on these apartments. In effect, the charge is that Keihn misled the Claimants that they had a binding contract — a legal conclusion — and would get paid — a future act — when he knew that was not, or would not be, the case.

But predictions, promises and representations of future events, as distinguished from existing/acts, are simply not actionable as a misrepresentation. (Ziskin v. Thrall Car Manufacturing Co. (1st Dist. 1982), 106 Ill. App. 3d 482, 435 N.E.2d 1227, 62 Ill. Dec. 255; Younger v. Revelle (5th Dist. 1979), 78 Ill. App. 3d 1, 397 N.E.2d 221, 33 Ill. Dec. 888; Peterson Industries, Inc. v. Lake View Trust and Savings Bank (7th Cir. 1978), 584 F.2d 166.) Predictions of future business, which is analogous to the second-year rent “representation” here, are not actionable as misrepresentation or fraud. Barrington Press, Inc. v. Morey (7th Cir. 1985), 752 F.2d 307, citing Pustelniak v. Williams (1933), 352 Ill. 270, 275, 185 N.E. 611.

Conclusion

For the reasons set forth above, this claim must be denied in its entirety. This claim is denied and forever barred.


text:
    (No. 94-CC-1655
    William Ciccia, Claimant, v. The State of Illinois, Department of Corrections, Respondent.

      Opinion filed March 12, 1999.

    William Ciccia, pro se.

    Jim Ryan, Attorney General (Serge J. Adam, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

Claimant William Ciccia, an inmate of the Illinois Department of Corrections (“IDOC”) brought this claim seeking $332 for damage to his television set allegedly caused by an electrical surge in the Dixon Correctional Center (“Dixon”) on March 4,1993, which was allegedly caused by defective wiring. Claimant also claims lost interest.

We previously denied both parties’ cross-motions for summary judgment (order of January 13, 1995), and remanded this case for an evidentiary hearing, which was ultimately held by our former Commissioner Johnson, who retired without submitting a report on this claim. The Court, accordingly, has reviewed in detail the record of this claim de novo.

Analysis

Claimant alleges that his television set was damaged due to an electrical surge on March 4, 1993, which was essentially a recurrence of a similar problem that had occurred weeks earlier (on February 13, 1993). Although IDOC makes an effort to avoid culpability for the surge, we are constrained to find that IDOC’s staff admission that there was an “electrical malfunction” in housing unit 29 at Dixon at 5:10 p.m. on March 4, 1993, and that that malfunction “caused electrical damage” to appliances in a number of enumerated cells, including cell 55 of inmate Ciccia and his “RCA 13 in. color T.V. model no. E13143HN serial no. 015425133” (See, grievance report, March 5, 1993, Dixon C.C., concurred in by Odie Washington, Director, IDOC) to fairly end the argument over liability.

We reach out to observe, however, that this kind of electrical “surge” claim finds great disfavor in this Court— not only because the proximate cause element is ordinarily difficult to prove without expert testimony (which is usually unavailable to IDOC inmates), but also because injury that is truly caused by electrical “surges” is readily avoidable by the owner of the television set or other appliance by technology that is available and at costs that are hardly unreasonable: surge protectors. Such devices are so well known that the failure to have one protecting sensitive electronic appliances — particularly in institutional situations where numerous factors can, and foreseeably will, affect the electrical supply may well constitute negligence that will diminish or kill a claim.

In this case, that defense has not been raised by the Respondent, and the Court is not persuaded to raise it on our own motion, because the record reflects that IDOC personnel had confirmed that the March 4, 1993 “electrical malfunction” had caused damage to surge protectors in other inmates’ cells. With that fact of record, and with the trial in this case long over, the Court will not consider this unraised and potentially disputed issue.

This brings us to the highly contested matter of damages in this case. Claimant has shown that his original purchase price for the television was $218.90, approximately 2 1/3 years before the incident (November 3, 1990). IDOC had taken the administrative position that the property should be depreciated at 20% per year, which Claimant had accepted, yielding a depreciated value of $116.02 by Claimant’s calculation. The Court will adopt that depreciated value as a fair measure of the Claimant’s loss.

However, we must and will reject out of hand the Claimant’s requests for interest, which amounts to prejudgment interest on a tort claim, which is not allowable in this Court, and we also flatly reject Claimant’s claim for his time in pursuing this claim, which is equally noncompensable under the applicable laws.

Conclusion

For the foregoing reasons, the Court finds liability against the Respondent for damages to Claimants television. Claimant William Ciccia is awarded the sum of $116.02 in full and complete satisfaction of this claim.


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    (No. 95-CC-0614
    R & G, Inc., Claimant, v. The State of Illinois, Department of Transportation, Respondent.

      Opinion filed July 21, 1999.

    Gates, Wise & Schlosser (Gordon W. Gates, of counsel), for Claimant.
    Jim Ryan, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This emergency oral contract claim against the Respondents Department of Transportation (“IDOT”), now pending on the Claimants amended complaint, is back before the Court on Respondents second summary judgment motion. This motion follows our two prior rulings which, inter alia, denied the first summary judgment motion without prejudice (see order of November 26, 1996; supplemental opinion of May 7,1997).

Respondents Second Summary Judgment Motion:

Issues Raised

The Respondents renewed motion for summary judgment (filed August 14, 1998), considered with the Claimants response thereto (filed December 23,1998), raise the following issues:

1. Was an oral contract formed between the Claimant and IDOT for Claimant to render labor and equipment services to IDOT for compensation, as Claimant contends; or was Claimant a volunteer in the 1993 flood control efforts, and no such contract was formed, as Respondent contends?

Respondent argues that undisputed facts, at best, show a voluntary undertaking without any IDOT commitment to pay, and a misunderstanding, at worst, precluding a contract formation. Claimant says there are disputed issues of material fact that preclude summary judgment.

2. Is this oral contract claim barred by section 9.01 of the (former) Illinois Purchasing Act (30 ILCS 505/9.01) as it was effective in 1993, which prohibited unwritten “State agency contracts for services involving professional or artistic skills * * * involving more than $5,000 * * *” and by section 10 of that Act which provided that a State agency contract “in violation of this Act * * * is void and of no effect.”

Citing precedent of this Court and the Supreme Court, Respondent argues that the alleged oral contract in this case — or at least recovery of any amount in excess of $5,000 on such contract — is barred by this statute which was applicable at the time. Claimant contends that this argument was already decided by our supplemental opinion (May 7, 1997) in which we rejected a virtually identical defense under section 15 of the State Comptrollers Act. (15 ILCS 405/15.) Claimant also argues that section 9.01 of the former Purchasing Act (30 ILCS 505/9.01) is inapplicable to the alleged contract in this case on the theory that sandbag filling is not a “professional or artistic” service.

3. Is this emergency oral contract claim barred by non-compliance with the IDOT regulations governing emergency purchases (44 Ill. Admin. Code 685.295(c), as enabled by 44 Ill. Admin. Code 4200.60, and IDOT Order 21-2, as amended July 1, 1989), which requires an IDOT emergency affidavit and a later written contract, as well as filing of an authorizing affidavit with the Auditor General.

Respondent contends that the (former) Purchasing Act applied to “emergency” contracts, and thus, is fully applicable to this claimed contract, along with the IDOT regulations governing emergency purchases. Claimant contends that the entirely of the section 9.01 Purchasing Act authorization, including any authority to IDOT to regulate emergency purchases of services, is not applicable to the services or contract involved in this claim.

4. Is this claim outside the jurisdiction of the Court of Claims as an implied contract or quantum meruit claim?

Respondent argues that this Court lacks jurisdiction to make an award on the equitable unjust enrichment doctrine. Claimant does not address this issue in its response.

5. Is the alleged contract too vague and uncertain to be valid and enforceable?

Respondent contends that the alleged oral contract is far too indefinite and vague to be capable of enforcement, due to its lack of specificity of duration, equipment involved, equipment rental rates, number of workers, applicability of prevailing wage rates, ability to subcontract, and other unenumerated terms. Claimant contends that this issue was decided against the Respondent in our order of November 26, 1996; and adopts its prior arguments to this Court.

Analysis: The Factual Issues

The threshhold issue of whether or not an oral agreement was made is entirely a fact issue. Both parties have produced sworn testimony supporting their positions on this issue and on what appears to be a key sub-issue: whether Claimant was a volunteer, or whether the parties agreed that Claimants work was to be compensated. Both positions are competently evidenced and persuasive. Absent a dispositive admission, this requires a determination by a finder of fact.

Respondent asserts a subjective “misunderstanding” between the IDOT official and Claimants personnel, and contends that the misunderstanding precludes a contract as a matter of law. The Court does not agree. We find that this record is replete with disputed facts on the misunderstanding issue as well as other contract-formation issues, which precludes summary judgment. We are also unconvinced that the mere fact that one party to a conversation had a different subjective understanding of the words used than did the listener is a per se legal defense to a “meeting of the minds” for contract formation purposes, although it may be a defense in some circumstances.

A genuine misunderstanding of what was meant by a particular statement may or may not defeat an “agreement,” depending on the particular context and circumstances. The issue of contract formation is ultimately determined by the parties’ intent as manifested by their communicated words and conduct which often take meaning from the particular context.

In this case, Respondents “misunderstanding” defense relies on an alleged difference in understanding of an IDOT statement that the Claimant “would be taken care of’ (R. Thursby deposition 21, excerpted in Respondent’s memorandum of law in support of * * * motion for summaiy judgment, at 6). There seems to be no dispute that the statement was made and communicated (which is not the usual oral contract dispute over who said what to whom).

Recause we find, on the current record, that the statement is somewhat ambiguous, we conclude that summary judgment must be denied. (Indeed, the statement itself is closer to justifying a finding for the Claimant than for the Respondent, but the ambiguity in the words requires us to defer our consideration for a fuller record.) The determination in this case of what was, or was not, reasonably and objectively communicated between the parties at the sand pit during the 1993 flood fight — and whether the parties’ words and conduct manifested an agreement — is peculiarly a determination that should be made by the trier of fact, preferably on a full record with an opportunity to ascertain the credibility of the witnesses.

Analysis: The Legal Issues

We need only observe, as Claimant bluntly urges, that this contract does not involve “professional or artistic skills” and is therefore not subject to the limitations of section 9.01 of the former Purchasing Act or its implementing regulations or the construing opinions cited by Respondent. This alleged contract was for sandbag filling, which simply is not a professional or artistic skill. (See, 1971 Opinion of the Attorney General S-256.) The sandbag-filling work in this case involved unskilled labor and the use of earthmoving equipment. The equipments use may entail some skilled labor, but falls categorically short of “professional or artistic” skills. (This conclusion does not at all disparage the artistry of some operators of this kind of equipment.)

In light of Claimants argument, we point out that this Purchasing Act argument, which today we reject as inapplicable to this case, is not the same as the argument under section 15 of the Comptrollers Act (15 ILCS 405/15) that we rejected as a matter of law in our previous supplemental opinion. Although both arguments involve statutory requirements for written documentation and filings in State offices, they arise from different statutes. Those statutes, in turn, prescribe significantly different legal consequences for their respective violation. Most significant, of course, is section 10 of the (former) Purchasing Act (30 ILCS 505/10), which voids an otherwise valid State contract that violates that Act; the Comptrollers Act contains no such provision. That makes sense in light of the different underlying purposes of the two statutes, but in any event mandates different results.

III. The IDOT “Emergency” Regulations Issue.

Respondents argument that this emergency contract claim is barred by IDOTs failure to comply with its own “emergency purchase” regulations (i.e., its failure to file an affidavit with the Auditor General setting forth the emergency conditions that prompted IDOT not to competitively bid the contract, and a subsequent written contract) is a troubling argument.

As we said in connection with the section 15 Comptrollers Act argument, this Court will not allow the State unilaterally to exculpate itself from an otherwise valid contractual obligation by its failure to comply with an internal State administrative requirement, unless a statute clearly compels that result. Otherwise, the agency, by administrative neglect or capriciousness, could defeat legitimate rights to payment. That would countenance a fraud in some cases.

The record in this case reflects that IDOT has taken the position from the outset that no contract was formed with this Claimant. Given their view that there was no contract, IDOT staffers in perfect good faith would never comply with IDOTs emergency contract regulations. Thus, if the legal opinion of the IDOT staffers were later to turn out to be wrong — as this Court might eventually decide in this case — the Claimant could still never win under Respondents theory. IDOTs earlier staff opinion (implemented by their failure to do the regulatory paperwork) would always prevail over the contractor’s legal rights. Bureaucratic supremacy would trump the contractor’s right to be paid by the State forever, and would trump this Court’s jurisdiction to decide whether or not the contractor had any rights.

In this case, IDOT takes this argument one step further by asserting the right to create the right of unilateral abrogation of emergency contracts by its administrative rule making power. We presume, of course, that the IDOT regulation is valid and binding. But absent a statutory abrogation of an otherwise valid emergency contract due to the agency’s failure to comply with its own regulations, this Court will not void the contract for that reason. In this case, the Respondent does not assert a statutory invalidation of the alleged oral sandbagging contract. Respondent instead relies solely on the regulation, which is not enough. We will deny the motion on this point without prejudice; if Respondent can show a statutory mandate to invalidate the alleged contract due to IDOTs failure to comply with the cited regulations, the Court will reconsider the issue in that light.

IV. Quantum Meruit.

Respondents contention that this Court lacks jurisdiction to award a quantum meruit claim is correct (under the terms of section 8 of the Court of Claims Act (705 ILCS 505/8)) as this Court has held too many times to require citation or discussion. However, the amended complaint does not assert a quantum meruit claim. This argument is therefore moot.

V. Vagueness and Enforceability.

Respondent is correct that this Court previously ruled on this point, albeit solely as a pleading matter, without prejudice and subject to the proofs, (order of November 26, 1996.) We find nothing in the Respondents summary judgment motion that leads us to reconsider this issue at this stage of this case, and we do not find the authorities cited by Respondent to require, or even to support, a dismissal at this stage on this record. However, the Court will again leave this issue open for reargument later on a fuller record.

Order

For the foregoing reasons, it is now ordered:

1. Respondents motion for summary judgment on the issue of formation of the alleged oral contract is denied; there are disputed questions of material fact;

2. Respondents motion for summary judgment on the basis of section 9.01 of the (former) Illinois Purchasing Act (30 ILCS 505/9.01) is denied with prejudice;

3. Respondent’s motion for summary judgment on the basis of noncompliance with 44 111. Admin. Code 685.295(d) and IDOT Order 21-2, as amended July 7,1989, is denied without prejudice;

4. Respondent’s motion for summary judgment against a quantum meruit claim for want of subject matter jurisdiction is denied as moot;

5. Respondent’s motion for summaiy judgment for vagueness and consequent unenforceability of the alleged oral contract is denied without prejudice;

6. This case is remanded to the assigned commissioner for trial on the merits.


author: Mitchell, J.

text:
    (No. 95-CC-1596
    Rhonda Wibbens, Claimant, v. The State of Illinois, Respondent.

      Order filed December 18, 1998.

    Vella, Sparkman & Altamor, P.C. (James D. Spark-man, of counsel), for Claimant.
    Jim Ryan, Attorney General (Sebastian N. DanZIGER, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This cause coming on to be heard on the motion of the Respondent to dismiss the claim herein pursuant to section 2 — 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619) and section 790.90 of the Court of Claims Regulations (74 Ill. Adm. Code 790.90), due notice having been given and the Court being fully advised in the premises:

The Court finds that on December 19, 1992, Claimant was a passenger in a vehicle driven by Charles Brents in Winnebago County, Illinois, while Trooper Randall Larson was pursuing the vehicle in order to stop and arrest the driver for various traffic violations. As Trooper Larson followed the car, the car went through a “T” intersection at a high rate of speed and crashed into a cornfield causing injury to the Claimant. Claimants complaint alleges that her injuries are a result of Trooper Larson negligently engaging in the pursuit of the vehicle while acting within the scope and course of his employment, as agent and employee of the State of Illinois.

Since the Claimant did not comply with section 25 of the Court of Claims Act (705 ILCS 505/25) which requires that Claimant must exhaust all other remedies, whether administrative or judicial, before seeking determination of her claim before the Court of Claims by not filing a complaint against the driver of the vehicle, this claim is dismissed.

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


text:
    (No. 95-CC-1743
    Ann Naughton, Claimant, v. The State of Illinois et al., Respondent.

      Order filed December 9, 1998.

    Barry Stewart Silver, for Claimant.
    Jim Ryan, Attorney General (Sebastian N. DanzigeR, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This matter comes to be heard on the claim of Ann Naughton (hereinafter “Naughton”) for personal injuries sustained due to the alleged negligence of the State of Illinois by and through its agents and employees at the Secretary of State Drivers License Facility located on North Elston Avenue in Chicago, Illinois. Claimant seeks compensation of injuries sustained in a slip-and-fall accident that occurred on January 27, 1994, on the sidewalk outside the aforementioned facility.

To determine whether Naughton should succeed in her claim and be awarded compensation for her injuries, two separate issues must be determined prior to any calculation of damages; (1) whether the State of Illinois owed Naughton a duty and (2) whether said duty was breached in a manner which proximately caused her injuries. The Claimant bears the burden of establishing the existence of a duty, a breach of that duty and an injury that was proximately caused by the breach. Thornburg v. State (1986), 39 Ill. Ct. Cl. 139.

For the purposes of this report, the following information contained in the report of proceedings and the exhibits stipulated to therein will be considered.

On January 27, 1994, at approximately 4:00 p.m., the Claimant arrived at the Secretary of States facility located on Elston Avenue intending to renew her Illinois drivers license. Prior to the Claimant entering the facility, the weather conditions were “cold, below freezing with sleet and rain mixed with snow.” After parking her car in the parking lot provided, the Claimant proceeded into the facility. Claimant experienced no difficulty walking from her parked car to the entrance of the facility due to the weather conditions or the condition of the parking lot. By the time the Claimant exited the facility, it was approximately 5:00 p.m. and it was significantly darker. In addition, the weather had worsened with an undetermined amount of snow, ice and/or rain accumulated on the ground.

Claimant exited the facility through a different doorway than she had entered and said doorway had a stairway leading to the sidewalk. As Claimant exited and began descending the steps, she noticed a Secretary of State employee entering the door with a half-full bucket containing salt. She also noticed that the stairs were icy, but spread with salt which had broken up most of the ice. Notwithstanding the condition of the stairway, she proceeded down the stairs carefully and with the assistance of the banister provided.

Claimant turned north at the bottom of the stairway to walk along the sidewalk to the area where she had parked her car. As she did so, she testified that she noticed the following: (1) the sidewalk was sloped toward the parking lot; (2) the weather, conditions were icy and very cold; (3) the area in which she intended to walk was veiy dark; (4) there was less salt on the ground as she proceeded to walk away from the stairs. The Claimant proceeded to walk on the sidewalk towards her parked car and thereupon, slipped, tripped and fell. She stated that “ice” caused her to fall, without further description.

Claimant was taken by ambulance to Resurrection Hospital and treated for a fractured shoulder. Claimant had no surgery, but did receive extensive physical therapy. Her medical bills related to this occurrence total $2,390. Claimant also asserts lost wages in the amount of $9,862, due to time missed from her two jobs in endeavoring to recover from her injuries. In addition, Claimant alleges that her shoulders range of motion has diminished due to the injury and that its lack of strength has affected her ability to perform at work.

As stated earlier, the existence of a duty is critical to any claim for personal injuries. In general, a property owner owes no duty to remedy natural accumulations of snow or ice. (Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 1004, 799 N.E.2d 80.) However, if the property owner voluntarily attempts to remedy or remove a natural accumulation of snow or ice, then the property owner must exercise due care in accomplishing that task. (Sims v. Block (1968), 94 Ill. App. 2d 215, 222, 236 N.E.2d 572.) It must be noted that no evidence has been presented that the “ice” upon which the Claimant fell was the result of a defect in the sidewalk or any unnatural accumulation, so that issue will not be considered by this report.

In this matter, any dispute as to whether the State voluntarily undertook efforts to remove the natural accumulation of ice, snow and/or rain on its property, thereby creating a duty and obligating itself to act with ordinary care in said removal, is rendered moot by the States admission in its brief that it did, in fact, do so. As such, the next issue to be addressed is whether said removal or attempt to remove fell below the standard of ordinary care. See generally, Richard Sheild v. State (1994), 47 Ill. Ct. Cl. 313, 317.

Claimant testified that there was salt spread in the area where she fell, but apparently argues there was not enough salt spread in that area to make it reasonably safe for a person such as Claimant to walk. Succinctly, Claimant argues that the State’s actions of not spreading “enough” salt in the area where she slipped on a naturally accumulated icy condition, fell below the standard of ordinary care for removal of that natural accumulation.

Claimants reply brief admits that the “States maintenance workers did adequately salt the illuminated stairway adjacent to its building” but then argues “the States workers were negligent in the manner in which they woefully salted the sidewalk areas.” At no point does the Claimant quantify the amount of salt which would be enough to make an area safe or why additional salt would have made the area safe for the Claimant to traverse.

Claimant fails to present any evidence as to the “manner” in which tire State “woefully salted” the area in which she fell, other than her testimony that there appeared to be less salt on the sidewalk area than on the stairway area. In theory, the Claimant could have presented evidence that salt spread by hand by one person, by hand by two persons or without the assistance of a mechanical “spreader” was below the standard of ordinaiy care, but she utterly failed to do so.

In addition, the Claimant fails to fully describe the area where she fell, and specifically, the “ice” which caused her to fall. How big was the area or piece of ice? Would additional salt on the area have completely melted the ice and prevented her fall?

Claimant asserts that “had the State’s employee used all of the salt in his bucket on the sidewalk area, then this incident would probably not have occurred,” yet she fails to provide any substantive basis for this argument. It is not this Courts duty to assume evidence and speculate beyond the evidence and testimony presented by the Claimant. In that regard, there are too many questions left unanswered by the evidence (or lack thereof) presented by the Claimant.

As such, Claimant has failed to carry her burden of proving the State failed to exercise ordinary care in not applying “enough” salt to the area where she fell and allegedly injured herself. Based on the evidence presented, the Claimant’s fall due to natural accumulation of ice on a sidewalk, while obviously unfortunate, was not the result of the State’s failure to exercise ordinary care.

For the aforesaid reasons, Ann Naughton’s claim is denied.