text:
    (No. 87-CC-3507
    Michael C. Secor, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 28, 1991.

    Zimmerman & Smith (Charles Zimmerman, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This cause comes before the Court on Respondent’s motion for a directed verdict after a hearing was commenced before a commissioner. The Claimant, being represented by counsel, presented two witnesses. Claimant offered 15 exhibits. Fourteen of the exhibits were admitted into the record without objection. The Respondent objected to Exhibit No. 7. After allowing both parties to address the issue of admissibility of Exhibit No. 7, the commissioner took the question under advisement and reserved ruling on it. The parties were allowed to ask questions of a witness, Mr. Rakow, based upon the exhibit with the understanding that the information elicited may be stricken or disregarded in the event Claimant’s Exhibit No. 7 is not admitted into the record.

After the close of Claimant’s case, Respondent moved for a directed verdict. Counsel for both parties argued on the motion.

This case arises from a motor vehicle accident on July 13,1986. Claimant testified that he was driving in a pickup truck northbound on Illinois State Route 23 on July 13, 1986. Claimant has no recall of the accident, or the events immediately preceding the accident. The complaint alleges that an automobile operated by an individual named Paul Mele collided with the pickup truck being driven by Claimant, and that the Illinois Department of Transportation had committed wrongful acts, or omissions, in relation to the intersection of Illinois State Route 23 and Kishwaukee Valley Road in the county of McHenry.

The Respondent maintains that the Court, when considering a motion for directed verdict, must determine whether Claimant has presented sufficient evidence to determine if a prima facie case of negligence has been made. (Stanley v. Board of Trustees of University of Illinois (1985), 39 Ill. Ct. Cl. 107, 110.) Respondent asserts that a claimant, when seeking recovery for alleged negligence, must show that Respondent owed a duty to claimant, that Respondent breached its duty to claimant and that duty was breached by a negligent act or omission which proximately caused the injury. (McCoy v. State (1975), 37 Ill. Ct. Cl. 182.) Respondent makes an additional argument that the claimant must prove that the State had actual or constructive knowledge of the dangerous condition. Feldman v. State (1984), 36 Ill. Ct. Cl. 158.

Claimant disputes the standard, as stated by Respondent, to be used in the determination of a motion for a directed verdict. Claimant avers that a directed verdict should be entered only in cases in which all evidence, when viewed in an aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

The propositions of law as stated by the parties are not mutually exclusive nor are they necessarily contradictory. When considering a motion for directed verdict, the evidence presented in claimant’s case must be viewed in its aspect most favorable to the opponent of the motion. The motion should be granted when all of the evidence, viewed most favorably to claimant, totally fails to establish one or more essential elements of the cause of action. Carter v. Winter (1965), 32 Ill. 2d 275, 204 N.E.2d 755, 758; Rogall v. Kischer (1971), 1 Ill. App. 3d 227, 273 N.E.2d 681; Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 436 N.E.2d 623, 627.

The claimant must prove the Respondent had a duty to claimant, breached its duty and the breach proximately caused his injury. In the event claimant is attempting to prove a defective or dangerous condition caused his injury, then he must show Respondent had knowledge, actual or constructive, of the condition.

Claimant states, in his response to the motion for directed verdict, that prior to trial Respondent admitted that the State of Illinois had control of the intersection in question. There is no indication in the pleading and documents filed with the Court that Respondent previously admitted to control over the intersection, nor did Respondent admit such at the hearing.

Claimant’s response references sections 4—201.2 and 4—405 of the Illinois Highway Code (the “Code”) to support his argument that Respondent was in control of the intersection. Section 4—201.2 authorizes the Department of Transportation to designate as part of the State highway system and to locate, construct and maintain highways. Section 4—405 requires the Department of Transportation to maintain all highways in the State highway system. The State highway system includes certain rural highways as described in section 2—101 of the Code. Claimant states that a larger governmental entity has a duty to maintain an intersection where intersecting roadways are maintained by different governmental units. Burris v. Madison County (1987), 154 Ill. App. 3d 1064, 507 N.E.2d 1267.

Claimant’s argument, on the issue of whether there is evidence of the element of duty, appears to be that the State of Illinois had a duty to maintain the intersection in which he was injured. An examination of Claimant’s Exhibit No. 8, a stipulation of the testimony of Thad L. Ay cock of the Northwestern University Traffic Institute, an accident reconstruction expert, shows that Claimant was involved in an accident on July 13,1986, at the intersection of Illinois State Route 23 and Kishwaukee Valley Road, McHenry County, Illinois. At the time of impact, Claimant was operating a vehicle traveling northbound on Illinois State Route 23 between 46 and 48 m.p.h., and the vehicle operated by Paul Mele was traveling Westbound on Kishwaukee Valley Road between 41 and 53 m.p.h. Ay cock’s conclusion is that Mele’s vehicle, “could not have stopped for the stop sign” and be able to achieve 41 m.p.h., the lowest impact speed for his vehicle.

“The vehicle driven by Mele had it accelerated from a halt from the stop sign, could not have reached a speed of more than 22 mph.”

Although Claimant’s response does not identify any evidence in support of his control theory, review of the record indicates the following. James Rakow, superintendent of highways for McHenry County, testified that Kishwaukee Valley Road, the county highway, was a stop intersection. Illinois Route 23 was a through route. He further testified that, on July 13, 1986, the Illinois Department of Transportation maintained Illinois State Route 23 and the county of McHenry maintained Kishwaukee Valley Road. Kishwaukee Valley Road is a State highway. The State of Illinois maintained the traffic control devices. There were two stop signs, one for eastbound and one for westbound Kishwaukee Valley Road. Both stop signs were preceded by stop-ahead signs. For westbound Kishwaukee Valley Road the stop-ahead sign was located 1185 feet east of the intersection. The stop signs were present at the intersection for the last 21 years. Rakow stated that, “in the late 70s or early 80s we” painted lines across the highway at the subject intersection to warn motorists that there was a stop ahead.

Rakow testified that his office keeps a file of accident reports for the previous five years that were given to them by the sheriff’s department and by the State Police. Prior to July 13, 1986, there were several accidents at the subject intersection. Claimant’s Group Exhibit No. 7, consisting of seven pages, was identified as all accident reports that were received from the McHenry sheriff’s county police of accidents that occurred from 1980 through 1985. Throughout that time period, the stop signs, the stop-ahead signs and the white stripes painted across the roadway were present.

Claimant requested that Claimant’s Group Exhibit No. 7 be admitted into the record and the Respondent objected on the basis that the exhibit contained police reports and as such was hearsay and not admissible. Claimant asserted that the exhibit was being offered to prove notice, to the State that the intersection in question is dangerous. A ruling was reserved on the question of admissibility. Without ruling on admissibility, we have considered the exhibit for purposes of determining the motion for directed verdict.

Rakow noted that overhead beacons, in yellow and red variety, were available on July 13, 1986. Rumble strips were also available for installation on July 13,1986. Rumble strips have never been used in McHenry Comity and it was Rakow’s opinion that rumble strips would not be installed on the county highway system. He testified that he had very severe reservations about whether the use of rumble strips is a proper traffic control device.

Based upon a review of all evidence admitted into the record, the Court finds the evidence, when viewed in its aspect most favorable towards Claimant, so overwhelmingly favors movant that no contrary verdict could ever stand.

Claimant has not presented any evidence of a breach of the duty by the Respondent which caused injury and has not provided evidence that Respondent had notice of a defective or dangerous condition. The evidence presented, when viewed in its aspect most favorable towards Claimant, totally fails to establish one or more essential element of Claimant’s negligence cause of action.

Claimant argues that he introduced testimony that the intersection was not properly maintained. He does not point to, or identify, the specific evidence that supports his conclusion. No testimony is apparent from the transcript of the hearing that would be in support of the conclusion that the intersection was not properly maintained.

There is no evidence that the State of Illinois was negligent in the maintenance or design of the intersection. Claimant asserts that additional traffic control devices or warning devices were available but not present at the intersection and that this is sufficient to create prima facie proof of breach. Claimant does not specify what devices are being referenced, nor does he state how the lack of the devices would prove that Respondent breached its duty to Claimant. Rakow only testified that overhead beacons were available in yellow or red lights. He did not describe how the beacons operate, or what the benefits would be if installed. He did not state an opinion as to whether the beacons should be installed at the intersection.

In viewing the evidence in its aspect most favorable to Claimant, we find that it totally fails to establish the Respondent breached its duty to Claimant.

In ruling upon the issue of notice of a dangerous or defective condition, the only pertinent evidence is represented by, and contained within, Claimant’s Exhibit No. 7.

We find that the evidence, viewed in its light most favorable to Claimant, still totally fails to establish notice of a dangerous or defective condition because the exhibit, together with Rakow’s testimony that he received the reports from the McHenry sheriff’s county police, only establishes that he and the sheriff had notice of the accidents and does not establish Respondent had any notice. Additionally, the occurrence of accidents does not mean the intersection is a per se dangerous or defective condition. The cases cited by Claimant are inapposite to the issue at bar.

The Respondent’s motion for a directed verdict is granted.

It is ordered, adjudged and decreed that the Respondent’s motion for directed verdict is granted, and the claim is dismissed and forever barred.


source: Caselaw Access Project

author: Patchett, J.

license: Public Domain

text:
    (No. 88-CC-0870
    Darylann Baron, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 15, 1991.

    Cavanagh, Hosteny, O’Hara, for Claimant.
    Roland W. Burris, Attorney General (Gregory Condon, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim is brought by an Illinois State Trooper for reimbursement of mileage expenses for use of her personal vehicle between her home and her place of employment, and for reimbursement of telephone tolls to report to her employer her departure and arrivals from and to her home.

Between March of 1981 and April of 1988, Claimant was employed as a State Trooper by the Department of State Police. In April of 1988 an attempt was made to remove her from service, and that matter was pending before the Illinois State Police Merit Board at the time this case was heard. During a portion of her active service she was involved in 10 squad car motor vehicle accidents in six years, of which eight were judged to be preventable. At this point in time her base was Elgin, Illinois (District 2), and Claimant lived at St. Charles, Illinois, nine miles north of Elgin.

District 2 had a total staff of 70 to 90 sworn personnel, of which 50 were assigned to road patrol and the balance of 20 to 40 comprised the administrative staff. Troopers assigned to road patrol worked portal to portal, were furnished a squad car with radio, and began patrol functions when they left their residences. They were required to advise their District by radio that they were in service and likewise when their shifts ended. Administrative command personnel also were assigned squad cars equipped with radios. Therefore every trooper was assigned a squad car with radio.

On April 7, 1986, Captain James R. Coffman, District 2 Commander, authored an office memorandum (Claimant’s Exhibit 1) to Trooper Baron, which stated:

“This memorandum is to confirm our conversation on March 20,1986 in which you were directed to turn in your squad car and assigned equipment, pending action resulting from numerous squad car accidents. You were assigned to desk operation and required to provide personal transportation to and from headquarters. Your duty hours are from 9:00 p.m. to 7:00 a.m. unless otherwise assigned.”

On days which she worked desk operation, the Claimant would telephone headquarters when she left her home and drive her own car nine miles from St. Charles to Elgin. When her shift ended she would drive nine miles home, then telephone headquarters that she had safely arrived at home.

She remained as a State Trooper at Elgin District from March 30, 1986, thru April 23, 1987, when she transferred from Elgin District to La Salle District. When she was transferred to La Salle she was assigned a squad car.

Her complaint for reimbursement was filed with the clerk of the Court of Claims on October 9, 1987. She asked for $46.00 for reimbursement of telephone toll calls from her home to State Police headquarters seeking $.25 per call for 184 days. For travel expenses, she requests 184.5 days at 18 miles at $.21 per mile for a total mileage claim of $697.41. Both claims total $743.41. There is some evidence that she was required to perform patrol functions when she was in route without any recitation of what patrol duties she performed.

In the March 20, 1986, conversation with District 2 Commander Coffman, nothing was said by the commander as to whether or not she would be paid mileage or reimbursed for telephone calls. Commander Coffman was not present at the hearing. Departmental policy required sworn personnel to maintain a telephone in their homes. If Trooper Baron had not telephoned in before she left for duty or when she returned she would have been guilty of insubordination, which by the rules of conduct is defined as:

“1-4 INSUBORDINATION
Officers shall promptly obey any lawful orders of a superior. This will include orders relayed from a superior by a person of the same or lesser rank or by a telecommunication via radio.” (Claimants Exhibit 2)

It was testified that she could be the subject of suspension up to 60 days or discharged if found guilty of insubordination.

The only exhibit introduced by the Respondent was the departmental report, filed pursuant to section 790.140 of the Court of Claims Regulations. That exhibit contained a letter from a legal advisor of the director of the Illinois State Police setting forth his conclusions, a memorandum from Captain Coffman to the director’s legal advisor, the change of assignment memorandum authored by Captain Coffman to Trooper Baron, and details of Trooper Baron’s driving records and attendance at State Police Academy driver training courses. These records have absolutely no relevance to the instant controversy, and they are therefore disregarded. Moreover, their admissibility under the rule is questionable. Most of the information was conclusions and not facts.

Trooper Baron did request reimbursement for expenses from the State Police, which request was made to an employee, one of whose duties was to assist troopers in claiming reimbursements. This employee, Sherry Summers, stated she did not know if she would be reimbursed, and advised her she was requesting advice from headquarters in Springfield. Trooper Baron testified that Ms. Summers advised her she would not be reimbursed because the expenses were incurred out of the fiscal year. Trooper Baron also requested the use of a portable radio to report her whereabouts. This request was denied and she was instructed to use her telephone.

Lieutenant Emrich was the only witness for the Respondent. He stated Trooper Baron’s request for assistance with the voucher was the first step in procuring reimbursement and that Ms. Summers would be required to check with the headquarters in Springfield for approval.

Trooper Baron was assigned to Illinois State Fair duties. Before she accepted this assignment she inquired and was advised she would be reimbursed mileage and hotel expenses. She was reimbursed from St. Charles to the hotel in Springfield, and for mileage driven from the hotel to her assignment. Lieutenant Emrich confirmed this was a reimbursable item, as well as other unspecified instances.

The Respondent claimed that the amount of the requested reimbursement for telephone tolls at $.25 per call was excessive. Respondent claimed the Claimant had available from Illinois Bell a “Call Pack” where there are unlimited toll calls within her area of St. Charles. However, Claimant testified the “Call Pack” did not apply when she called outside her area (St. Charles to Elgin). This was the only evidence, and the Court finds that the defense urged by the Respondent has not been proven.

Respondent did not file a brief. The hearing before the commissioner took place on March 3, 1989, and the transcript was filed with the clerk on March 21, 1989. The Claimant’s post-trial brief was timely filed on May 7,1989. Respondent had 60 days to file its brief. On July 18, 1989, the commissioner entered an order granting Respondent an additional 60 days to file its brief or the brief would be barred. No brief was ever tendered.

It appears to the Court that the Claimant is seeking reimbursement for nothing more than what the State provided other employees who were in similar positions. While the State’s action in taking away her squad car because of the numerous accidents was perhaps an understandable response, some accommodation should have been made so that she would not incur out-of-pocket expense for something that the State covered for everyone else in her position.

The requested reimbursement of $.25 per call is extremely reasonable. The amount is only $46.00. The Court finds that the sum of $46.00 for 184 calls at $.25 per call to be fair and reasonable and that she is entitled to reimbursement in that amount. For travel expenses, she requests 184.5 days times 18 miles at $.21 per mile for a total mileage claim of $697.41. The Court finds that the Claimant has proven she has driven 184.5 days round trip from her home to Elgin headquarters, and that the request for $.21 per mile is fair and reasonable. This was also the State approved rate during that period of time. Therefore she is entitled to reimbursement in the sum of $697.41 for travel or a total award of $743.41.

Claimant filed this case as a lapsed appropriation claim. The amount of funds which lapsed is relevant. The Respondent’s departmental report does not provide the necessary fiscal information. It is hereby ordered that the Respondent file the fiscal information within 30 days; it is further ordered that if Respondent fails to do so Claimant is hereby awarded $743.41 to be paid with general revenue funds.


author: Raucci, J.

text:
    (No. 88-CC-1126
    Michael Pittman, A-90850, Claimant, v. The State of Illinois, Respondent.

      Order filed February 18, 1992.

    Michael Pittman, pro se, for Claimant.
    Roland W. Burris, Attorney General (Stephen T. Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause coming to be heard on the motion of Respondent to dismiss, due notice having been given the parties hereto, and the Court being duly advised in the premises, the Court finds that on October 29, 1987, Claimant filed this claim for injuries allegedly sustained from assaults by other inmates on October 21,1986, and January 26,1987. With respect to the first alleged attack, Claimant failed to file notice with the Court of Claims within one year as required by Section 22—1 of the Court of Claims Act (Ill. Rev. Stat. 1989, ch. 37, par. 439.22—1). With respect to the second alleged attack, Claimant has failed to pursue actions against his alleged inmate attackers in contravention of section 25 of the Court of Claims Act (Ill. Rev. Stat. 1989, ch. 37, par. 439.24—5), and cases such as Essex v. State, decided thereunder. Such potential attackers were previously identified to Claimant as part of the Department of Corrections’ internal investigation, a copy of which was included as an exhibit to Respondent’s departmental report, filed pursuant to section 790.140 of the Court of Claims Regulations on or about January 25,1989. Claimant’s report further contains correspondence indicating that there was no staff negligence involved in such assault (see November 30, 1987, letter to Rick Dunbar from James Chrans).

It is hereby ordered that the motion of Respondent be, and the same hereby is, granted, and Claimant’s claim is dismissed with prejudice.


author: Sommer, J. Sommer, J.

text:
    (No. 88-CC-1223
    V-G Supply Company, Claimant, v. The State of Illinois, Respondent.

      Order filed August 25, 1988.

      Order filed October 21, 1991.

    V-G Supply Co., pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, J.

Claimant, V-G Supply Company, filed this claim seeking $346.29 for certain materials provided to the Respondent’s Department of Central Management Services, hereinafter referred to as CMS. Claimant alleged in its standard “lapsed appropriation” form complaint that it made demand for payment from CMS but its demand was refused on the grounds that the funds appropriated for the payment had lapsed.

The Respondent filed a stipulation agreeing to our entering an award. This Court is not bound by such stipulations and we cannot acquiesce in granting one in this case based on the record before us for the following reasons.

Claimant filed this claim seeking $346.29. Attached to the complaint were various billing documents in lieu of a bill of particulars. First, there is a billing statement with charges accruing in three separate fiscal years showing a balance due of $362.10. Next was an invoice showing a net due of $256.50. Another invoice for $51.30 was attached as was an order for delivery of $353.38. We are unable to ascertain how Claimant arrived at the amount claimed from reading these papers.

Equally confusing was the stipulation. The stipulation was based on a report compiled by CMS and offered as prima facie evidence of the facts contained therein pursuant to section 790.140 of the Court of Claims Regulations. The report stated that the agency did not receive the invoice but nevertheless agreed that the Claimant was owed the full amount claimed. How the agency figured the amount claimed was the amount owed is not clear from the report. In its stipulation, Respondent agreed to an award in the amount of $595.65. Nothing in the report substantiates that amount. Moreover, the stipulation stated that this claim was a fiscal year 1987 obligation. The report states that the claim was a fiscal year 1986 obligation.

Wherefore, it is hereby ordered that the stipulation is not approved; it is further ordered that the Claimant file a written explanation of how it arrived at the amount claimed within 45 days and the Respondent is ordered to replead within 45 days thereafter. If either party fails to comply within these time periods, the clerk’s office is directed to reassign the case to the commissioner.

ORDER

Sommer, J.

This cause coming to be heard on the motion of the Court, due notice having been given, and this Court being fully advised in the premises, finds this claim is a lapsed appropriation claim for materials provided to the Department of Central Management Services. After some confusion and delay both parties agree that the original value of the goods sold was $256.50 (see this Court’s order of August 25,1988). The remainder of the claim was for “late charges” of $89.79. The Department resists the payment of such “late charges” on the grounds it received no timely invoice. If no timely invoice or bill was sent, the Claimant is not entitled to “late charges” or interest. (Ill. Rev. Stat. 1989, ch. 127, par. 132.401 et seq.) The State has 60 days to process such an invoice before interest attaches, supra. Such interest can be claimed only to the end of the lapse period of the fiscal year during which the agency could pay the claim. (Branch-Nicoloff Co. v. State (1988), 40 Ill. Ct. Cl. 252, 253.) The end of the lapse period is September 30. It is possible that if the Claimant did send a bill or invoice before July 30, 1986, it would be entitled to some small part of the “late charges” or interest claimed at the statutory rate.

Additionally, it is hereby this Court’s finding that the FY 1986 appropriation to the Department of Central Management Services lapsed sufficient monies to pay this claim. It is therefore ordered that the Claimant be paid $256.50 and that the Claimant may request this Court within 60 days of this order that it wishes to prove that it filed a timely invoice before July 30, 1986, and is entitled to some interest or “late charges.”


author: Montana, C.J.

text:
    (No. 88-CC-1548

      In re Application of W. Allen Winchester, Jr.

      Opinion filed November 19, 1991.

    W. Allen Winchester, Jr., pro se, for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This is a claim for compensation arising out of the death of Russell A. Winchester, a firefighter/paramedic for the Glenbrook Fire District, pursuant to the provisions of the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, and Firemen Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 281 et seq.), hereinafter referred to as the Act. Firefighter Winchester died on September 29,1987, from injuries sustained from a fall on September 23, 1987. The Claimant, the decedent’s father, and Shirley Peters, the decedent’s mother, were designated as equal beneficiaries of any award authorized by this Court.

The record consists of the application for benefits and documents submitted in support thereof, the statement of the decedent’s supervising officer, the report of the Attorney General, and a transcript of a hearing held before Commissioner Michael E. Fryzel, who has duly filed his report.

The record indicates that on September 23, 1987, Firefighter Winchester had been directed to attend while on duty a required advanced driving maneuvers class at the Glenview Naval Air Station. The nature of the class was such that only one firefighter from a crew could be instructed at a time. During the times the firefighters were not driving they had to remain in the area and were considered “on drill” whether driving, picking up the obstacle cone, or just awaiting their turn. During one of the waiting periods some of the firefighters began throwing a football with full knowledge of the acting officer on the scene. This escalated into a scrub football game. While attempting to catch a pass firefighter Winchester lost his footing, fell to the concrete surface and struck his head. He died from the injuries he suffered at Evanston Hospital on September 29, 1987. The medical examiner’s certificate of death lists the cause of death as cerebral injuries due to, or as a consequence of, a fall.

For an award to be granted under the Act it must be shown that the decedent was killed in the line of duty as defined by the Act. Section 2(e) of the Act provides, in relevant part, that

“ ‘killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of one’s duties as a ' " ' fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause.”

Firefighter Winchester was on duty at the time of his fatal accident. Though waiting for his turn in the training session when injured, he was considered to be “on drill” according to the statement of his supervising officer. Also according to his supervising officer, the acting officer on the scene had full knowledge of the physical activity the decedent was engaged in when the fatal injury was suffered. The decedent’s supervising officer further stated that the firefighters were encouraged to take part in physical activity since it helps maintain the physical conditioning necessary in their line of work.

Based on the foregoing, we find that Firefighter Winchester was killed in the line of duty and that this claim is therefore compensable.

It is therefore hereby ordered that an award of $50,000.00 be, and is, hereby awarded in this claim. Said award is to be shared equally by W. Allen Winchester, Jr., and Shirley Peters, the designated beneficiaries of Firefighter Russell A. Winchester.


author: Burke, J.

text:
    (No. 88-CC-1901
    Hazel Harder, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 25, 1991.

    Hinshaw & Culbertson, for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimant, Hazel Harder, brought this claim for damages against the State of Illinois for personal injuries she sustained from a fall at the entrance of the Old State Capitol Building in Springfield, Illinois, on April 5,1987. A hearing was held on October 11, 1990, and the parties submitted briefs.

Claimant, while in the company of other members of her immediate family, went to the Old State Capitol shortly before 3:00 p.m. on April 5,1987. She entered the building through the front entrance after climbing a series of steps to a porch area and one additional step to a portico of the same level as the entrance to the building. Claimant, who was 80 years of age, remained in the first floor area of the building until the other members of her family finished viewing the interior of the building. At approximately 3:00 p.m., Claimant exited the building in the company of her family. She fell while negotiating the step from the portico to the porch area; said step is approximately 1/2 to 5 inches high and was not marked or distinguished in any way to separate it from the remainder of the porch area. As a result of the fall, Claimant suffered injuries to the face and to the right eye causing her to incur medical expenses of $1,319.67.

Claimant asserts that Respondent is guilty of negligence by failing to provide guard rails on the step from the portico to the porch and for failing to warn Claimant of the deceptive and/or hazardous condition of the steps when Respondent knew or should have known said steps were deceptive and/or hazardous.

It is clear from the evidence that the Claimant was an invitee for whom a duty for reasonable care for her safety was owed by Respondent. (Talbott v. State (1983), 35 Ill. Ct. Cl. 885; Nolan v. State (1983), 36 Ill. Ct. Cl. 194.) However, the State of Illinois is not an insurer of the safety of persons visiting its recreation areas, but such visitors are owed a duty of reasonable care in maintaining the premises. Berger v. Board of Trustees of University of Illinois, 40 Ill. Ct. Cl. 120.

Claimant failed to present any evidence that the Respondent had actual or constructive notice that the design, construction and maintenance of the step leading from the portico to the porch constituted a dangerous, deceptive and/or hazardous condition. No evidence was offered showing that other persons fell and suffered injuries at this location. Claimant’s witness testified that during the calendar year 1987 more than 167,000 people visited the premises and that 95% of said visitors (158,650) entered the building through the same doorway and that 60% of said visitors (100,200) exited through this same door, and stepped down the same step where Claimant fell. During calendar year 1987, no other falls were reported other than a fall in August of 1987 which was several months after the Claimant’s fall and injury.

In light of the many visitors who negotiated the entry to the building and exited therefrom without incident, the area of the fall was not a deceptive or hazardous condition and Respondent was not negligent. Claimant’s claim is denied for failure to prove by a preponderance of the evidence that the Respondent was guilty of negligence by failing to provide guard rails on the step from the portico to the porch and for failing to warn Claimant of the alleged deceptive and/or hazardous condition of the steps when Respondent knew or should have known said steps were deceptive and/or hazardous. It is not necessary to consider the medical expenses incurred and the extent of the injuries sustained by Claimant.

Wherefore, it is hereby ordered that the instant claim is denied.


author: Sommer, J.

text:
    (No. 88-CC-2265
    Dolores Lambatos, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 28, 1992.

    Kwiatt & Silverman, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This is a claim for personal injuries sustained on May 8,1987, as a result of a fall by the Claimant on a mat or carpet runner in the foyer of a dormitory at Northern Illinois University. The Claimant alleges that the Respondent was negligent in maintaining the foyer, thereby creating a dangerous condition. The Claimant alleges that rocks, dirt and dust from maintenance work being done on the foyer walls had accumulated on and underneath a carpet runner which caused it to slide when she stepped on it, resulting in her fall and injury. The carpet is alleged to have been curled and worn.

Both the Claimant and her daughter testified that the Claimant’s foot was tangled in the carpet after she fell and that the carpet was tattered. Additionally, the daughter testified that the foyer of the dormitory had debris in it for three or four days prior to the accident due to chipping done on the walls by workmen. The building foreman testified that in normal circumstances the carpet or mat should be turned over every day and mopped so that no debris would accumulate under it. He also stated that the janitor responsible had not done any work on the foyer that day. He was not able to say whether clean-up work was done the previous day. However, he did not know of any maintenance or construction work being done in the area at the time of the fall, nor did he see any evidence thereof. Other university employees testified similarly.

The Respondent urges that there is not sufficient evidence that a dangerous condition was created in the foyer, and that the Claimant has not established that the Respondent had actual or constructive notice of the condition. Whether or not evidence is sufficient to establish constructive notice must be determined on a case by case basis. Samuelson v. State (1986), 38 Ill. Ct. Cl. 257, 261.

We find the evidence here as tending to show that construction debris had accumulated in the foyer for a period of time and that the Respondent can be construed as having had sufficient notice of the conditions in the foyer in order to have made corrections. It is true that the State is not an insurer of the safety of those using the State’s property, but the State owes a duty to the public to exercise reasonable care in maintaining its property. Stedman v. State (1957), 22 Ill. Ct. Cl. 446; Owens v. State (1989), 41 Ill. Ct. Cl. 109; Long v. State (1986), 40 Ill. Ct. Cl. 39.

It is our finding that the Respondent was negligent in allowing the condition in the foyer to continue and that the condition was dangerous. Further, this negligence was the proximate cause of the Claimant’s injuries.

At the hearing, the Claimant testified as to stiffness and intermittent pain in her ankle and an inability to engage in more strenuous activities without pain and limited motion.

The Claimant then introduced the testimony of an expert physician, Dr. William B. Fischer, to objectively establish the Claimant’s injuries. There is no dispute that the Claimant suffered a fibular fracture from the incident complained of. Dr. Fischer testified that this fracture had healed and that there would be little or no disability or future pain and suffering associated with it. Dr. Fischer testified that X rays taken at his request showed evidence of a fracture of the os caléis, a bone in the heel. This fracture left the bone misaligned which, along with some ligament fibrosis, would cause some pain and loss of motion when greater than normal stress would be placed on the ankle. It is probable, according to Dr. Fischer, that the joint will become arthritic and require surgery. This surgery would alleviate some of the disability and pain existing prior to the surgery.

Fischer could not state conclusively that the os calcis fracture occurred at the time of the fibular fracture. He testified that the X rays of the treating hospital did not show the os calcis fracture, but that such would not necessarily be evident unless sought out. Dr. Fischer’s testimony was accompanied by a medical journal article which indicated that there was a likelihood that the os calcis fracture occurred at the same time as the fibular fracture. The State introduced no medical evidence in rebuttal, neither the treating physician’s testimony nor that of an examining physician. We find that the preponderance of the evidence shows that the os calcis was fractured in the fall complained of.

The Claimant seeks a variety of damages. First, medical bills of $742.35 are uncontested. Dr. Fischer testified as to probable further medical bills in the amount of $2,600.00. There would be no future pain and suffering or disability in regard to the fibular fracture, but pain and suffering at the time of the incident was established by testimony and we value this at $3,000.00. There would be further pain and suffering and disability in regard to the os calcis fracture, but this could be diminished if surgery is undertaken. If we give an award for future surgery, then the remaining pain and suffering and disability we value at $7,500.00.

Finally, there is a claim for lost wages in the amount of $6,336.00. The Claimant at the time of the injury was an employee of a temporary agency. The claim for lost wages assumes that the Claimant would have worked eight hours every working day for 17 weeks at which point she took a piece work job which allowed her to work at home. The Claimant indicated that soon after her injury she had to go to work full time, and she had. such an offer from the temporary agency. No evidence in corroboration of these assertions was entered. The Respondent argues that the claim for the full-time work is too speculative. With this we agree. We also agree that the Claimant may have worked some during the 17 weeks, but we do not know how to find a value for this as no evidence establishing the duration of prior temporary work was entered. Therefore, we find the lost wages unproved. In summary, we award the Claimant a total of $13,842.35 in full satisfaction of her injuries. It is therefore ordered that the Claimant be paid $13,842.35.


text:
    (No. 88-CC-2764
    Delbert L. Curwick and Nancy J. Curwick, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 19, 1992.

    Duanne J. O’Connor, for Claimant.
    Roland W. Burris, Attorney General (Carl J. Barlow, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

The Claimant is seeking $2,392.55, plus interest, which he contends is possessed by the State but belongs to him.

In 1976, the Claimant was ordered by the circuit court to pay support to his minor children. From time to time, the children through their mother had to seek support from the Department of Public Aid. For the 1982 through 1985 tax years, the Claimant contends his Federal and State income tax refunds were confiscated to pay for alleged amounts that were in arrears in his support payments.

The Claimant argues that the State is in possession of his money which he did not owe, either because his children had reached majority in the later years of confiscation or because the State had made miscalculations. The State argues that monies are still owed even after the confiscations of the tax refunds.

The Claimant originally brought this claim in the Kankakee County Circuit Court where the judge ruled that the circuit court did not have jurisdiction because the case was not on administrative review.

Intercepts of Federal and State income tax refunds are authorized by sections 10—17.3 and 10—17.5 of the Public Aid Code. Ill. Rev. Stat., ch. 23, pars. 10—17.3, 10—17.5.

Under the authority of the above sections, the Illinois Department of Public Aid may intercept Federal and State tax refunds to recover past due support payments. The support must be owed by a responsible relative under a court order. Notice must be given and an opportunity to be heard must be granted to the responsible relative. Any final administrative decision can be reviewed under the Administrative Review Law. Ill. Rev. Stat., ch. 110, par. 3—101 et seq.

The various intercept notices sent by the Department of Public Aid, the I.R.S. and the State Comptroller provided for an opportunity to be heard and outlined a procedure and deadline for doing so.

There is no indication in the record that the Claimant followed the procedures outlined in the intercept notices. The Claimant did contact the Department on December 23, 1986, and asked for a redetermination letter outlining the amounts owed according to the Department. With the letter was a notice telling the Claimant he had 30 days to “contest the results of the Department’s Redetermination” by requesting a hearing. There is no indication that the Claimant did so.

This Court finds by the clear language of the Public Aid Code that the mechanism for determination of validity of intercepts is that under the Administrative Review Law. Jurisdiction is placed in the circuit court after action by the State agency terminates the proceeding. No jurisdiction is granted to the Court of Claims. Ill. Rev. Stat., ch. 110, par. 3—101.

The Claimant argues that he is simply requesting a sum of money in the possession of the State that belongs to him, therefore vesting jurisdiction in the Court of Claims. However, we find that the determination of the validity and proper amount of the intercepts is the very issue that the Claimant did not pursue to termination before the State agency.

The Claimant did receive a letter from the Comptroller dated May 4, 1987, regarding his 1985 intercepts which stated that if he did not agree with the determination, he had the right to present the issue to the Court of Claims. Whether this advice is correct or not, the Claimant could have chosen to rely on it. We find that he did not so rely, as he filed his claim in the circuit court on June 11, 1987, where he received a ruling on January 14, 1988. On March 3,1988, he filed in the Court of Claims. Even if we agreed with the Claimant in his contention that he was simply requesting a sum of money in the possession of the State, there would not be jurisdiction in this Court as he had failed to exhaust his remedies with the Department of Public Aid as is required by section 24—5 of the Court of Claims Act. Ill. Rev. Stat., ch. 37, par. 439.24—5.

The Public Aid Code places jurisdiction for the determination of the amount and validity of intercepts of income tax refunds in the circuit court rather than the Court of Claims. The fact that the Claimant did not take his claim to termination within the Department of Public Aid prevented his being heard in the circuit court, but did not change the law that jurisdiction would have been in the circuit court. It is therefore ordered that the Respondent’s motion is granted and this claim is dismissed.


text:
    (No. 88-CC-3495
    Roosevelt Lee, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 15, 1992.

    Roosevelt Lee, pro se, for Claimant.
    Roland Burris, Attorney General (Gregg Riddle and Carol Barlow, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Burke, J.

On March 30, 1988, Claimant, Roosevelt Lee, a prison inmate, filed his complaint in tort alleging various injuries resulting from the negligence of prison authorities. Claimant alleges that on July 23, 1987, while working a prison job assignment, he slipped on a dangerous grate and he fell into a vat of hot water. He further alleges he suffered burns and a wrenched back. He seeks damages for lost earnings, permanent injuries, and pain and suffering. His prayer for relief seeks $1,500.00.

The cause was tried before Commissioner Robert Frederick. Claimant filed a brief but Respondent failed to file a brief. The commissioner has duly filed his report.

On July 23, 1987, Claimant was an inmate at Dan-ville Correctional Center. His prison job was cleaning pots and pans. At the time of the accident, Claimant had been working at the job for three or four months. The water in the sink was not hot enough to cut the grease so Claimant obtained a five-gallon bucket of hot water from a vat. When he lifted the bucket to carry it back to the sink, his foot slipped off the concrete ledge and hit the railing. The railing shot straight from under Claimant and his leg went down in the well beneath the rail. He pushed the bucket away and threw his hand up to cover his face as he was falling into the vat of boiling water. He received severe burns. Claimant testified that numerous repair maintenance slips had been made out for this grate and well area where he fell prior to his fall but repairs were not made.

Claimant twisted his back when he fell and suffered back pain. He had a thickness burn on his left forearm and a small abrasion on his left knee. The departmental report corroborated Claimant’s injuries. He was given a 48-hour lay-in and seen daily in the health care unit for eight days to change the dressing on his arm. He also saw Dr. Delgado for leg pain and back pain. The diagnosis of Dr. Delgado was mild dorsal sprain and contusion of the left leg. On September 3, 1987, Claimant saw Dr. Tanner for back stiffness and he was given a muscle relaxant pill. According to Claimant, at the time of the hearings on December 21,1988, he still had to sleep on a bedboard and still had sharp pains. Claimant did admit that he had been working since September of 1987.

The State called three witnesses. Pam Lowery, the prison dietary manager, testified that she knew Claimant ever since he worked in the kitchen. She had seen Claimant carrying heavy items since the incident of July 23, 1987. Claimant had told her that he blamed the maintenance department for his injuries and that his fall had aggravated an old back injury. She stated Claimant had been a furniture mover and had previously hurt his back.

John Dudek testified he was employed as a correctional food supervisor at Danville Correctional Center. He was in middle management of the dietary department at the prison and was supervisor of sanitation at the time of Claimant’s injuries. He testified it was a common practice to have inmates take hot water out of the vats prior to July 23,1987. It was normal procedure to do so to meet sanitation requirements of the department. He had seen Claimant take such hot water out of the vats prior to July 23, 1987, on many occasions, several times a day.

Mr. Dudek described the vats as raised and having a spigot bottom. Running in front of the vats is a gírate with a well beneath it. The whole vat and grate system is up on a raised curb. The vats hold 60 gallons. He stated that the container Claimant was using when he fell held either five or 15 gallons.

Mr. Dudek further testified he had warned all kitchen worker inmates that were working in his shift, including Claimant, that they were working in an extremely dangerous situation, that the grates have a tendency to fall through or slide, and that by no means are inmates or anyone to step on the grates with their full body weight. He informed them to try to avoid the grates as much as possible.

Dr. Tanner testified that he treated Claimant. On July 31, 1987, Claimant first complained about his back pain and requested a bedboard. In September, Claimant still had some back stiffness. Dr. Tanner further testified that the medication for Claimants back was given for three weeks and that Claimant’s back injury did not appear to be permanent.

The State has a duty to supervise the work of the inmates in State penitentiaries and to provide safe and adequate work tools. (See Hughes v. State (1984), 37 Ill. Ct. Cl. 251; White v. State (1987), 39 Ill. Ct. Cl. 175.) As an inmate, Claimant was required to take orders and carry them out. An inmate does not enjoy the same independence as a person outside of the penitentiary. To refuse to take hot water out of the vats would have subjected an inmate to disciplinary action, so inmates keep quiet and do as they are told. See Goodrich v. State, 36 Ill. Ct. Cl. 326; Moore v. State (1951), 21 Ill. Ct. Cl. 282.

It was the normal procedure for the inmates to take hot water from the vats because the water from the sink was not hot enough to cut grease and meet Department of Corrections sanitary standards. Rather than obtain hot water from some safe source, the inmates were required to obtain hot water from a vat across a dangerous grate on a raised surface. The supervisors were aware of this dangerous condition and, though inmates were warned of the dangerous condition, nothing was done to correct it. (See Burns v. State (1982), 35 Ill. Ct. Cl. 782.) The inmates were required to work in a dangerous situation. The State in the instant case breached its duty to provide safe tools and working procedures by failing to provide hot water in a safe manner. We do not find comparative negligence on the part of Claimant because he was following what appears to have been normal procedures in an inherently dangerous situation.

Claimant has requested an award of $1,500.00 for all of his injuries and pain and suffering in this case. Such appears to be reasonable under the facts presented.

Based on the foregoing, it is hereby ordered that Claimant be, and is, hereby awarded $1,500.00 in full and final satisfaction of this claim.


text:
    (No. 88-CC-3950
    Leo A. Wrona, M.D., Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 5, 1992.

    Leo A. Wrona, pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

At issue in this medical vendor-payment proceeding, filed pursuant to section 439.8(a) of the Court of Claims Act (Ill. Rev. Stat. 1991, ch. 37, par. 439.8(a)) and section 11—13 of the Public Aid Code (Ill. Rev. Stat. 1991, ch. 23, par. 11—13), is Claimant physician’s right to receive payment, under the Medical Assistance Program (MAP) administered by the Illinois Department of Public Aid (IDPA), for the surgical sterilization of his patient, a 24-year-old IDPA recipient.

Respondent has moved for summary judgment in this action, contending that Claimant has failed to demonstrate compliance with applicable Federal and State regulatory requirements (42 C.F.R. §§ 441.250 through 441.259 and related appendix; and 89 Ill. Admin. Code §§ 140.413(a)(2), 140.483), designed to ensure that MAP patients have given their fully informed and considered voluntary consent prior to undergoing such surgery. The Claimant having received due notice of Respondent’s motion, the Court makes the following findings:

The regulations relevant here are clearly intended to provide an enforceable mechanism for ensuring that an individual not be rendered permanently incapable of reproducing, contrary to his or her wishes. They may be summarized as in IDPA’s MAP Handbook For Physicians outline of their provisions.

“Sterilization is a covered service [eligible for State payment under IDPA’s MAP] only for individuals who have given written consent, are at least 21 years old at the time consent is obtained and are not institutionalized or mentally incompetent. At least 30 days, but not more than 180 days, must have passed between the date of informed consent and the date of sterilization, except in the case of premature delivery or emergency abdominal surgery.
An individual may consent to be sterilized at the time of a premature delivery or emergency abdominal surgery if at least 72 hours have passed since he or she has given informed consent for the sterilization. In the case of premature delivery, the informed consent must have been given at least 30 days before the expected date of delivery.
Informed consent may not be obtained while the individual to be sterilized is: (1) In labor or childbirth e * *
Procedure-. Written consent to perform a sterilization must be obtained on Form DPA 2189, Consent Form. All appropriate sections of the form are to be completed ° 6 (Id., ch. A-200, Topic A-210, July 1981; and corresponding requirement in the MAP Handbook For Hospitals, ch. H-200, Topic H-214.14, May 1979)

The language content of the consent form is prescribed by Federal regulations; and the manner and timing of the form’s completion, in accordance with the above-outlined regulatory requirements, is the key element to enforcement of these regulatory safeguards.

It is obvious in this case that the required time interval between the patient’s signing of the consent form and the sterilization was not observed. The date of a patient’s signature is established, under the regulations, as the date on which she consented to the surgery after having been provided with the prescribed information. In the instant case, the patient gave birth to her child and underwent the sterilization on the same day that she signed the consent form. No interpretation of the operative facts here could justify a conclusion that Claimant had complied with these informed-consent requirements.

As noted in IDPA’s report herein, the Federal government’s promulgation of these requirements, in 1978, was accompanied by a discussion (43 FR 52146) of the rationale in support of the 30-day, and 72-hour-exception, waiting periods. Adoption of these regulations (42 C.F.R. § 441.250 et seq.) had followed protracted litigation, challenging previously-proposed regulations as providing inadequate safeguards against hastily obtained or coerced consents to sterilizations. (See, e.g., Relf v. Weinberger (D.C. Cir. 1974), 372 F. Supp. 1196, which controversy was later found mooted ((D.C. Cir. 1977), 565 F. 2d 722) by defendant DHEW Secretary’s withdrawal of prior regulations.) This background serves to underline the importance of the mandated time interval during which the patient can reflect on the wisdom of the written consent, once given, and on whether to exercise his or her right to withdraw consent before a sterilization is performed.

We emphasize that Respondent does not assert, and this Court specifically does not find, that sterilization in this case was contrary to the patient’s wishes or best interests, or otherwise ill-advised. Nothing in this record . would support such a conclusion, apart from failure to comply with the time-interval requirement. It is clear, however, that Claimant does have the burden of establishing that he had complied, in detail, with these regulatory safeguards, and that he failed so to comply in this case, prior to the regulatory deadline. Good Samaritan Hospital v. State (1982), 35 Ill. Ct. Cl. 379; Methodist Medical Center v. State (1986), 38 Ill. Ct. Cl. 208; Memorial Medical Center v. State (1988), 40 Ill. Ct. Cl. 73.

It is hereby ordered and adjudged that Respondent’s motion for summary judgment is granted, Claimant having failed to comply with applicable Federal and State regulatory requirements as discussed above. Judgment is hereby entered against Claimant and in favor of Respondent on the subject claim; and said claim is dismissed with prejudice.


text:
    (No. 88-CC-4515
    Walter Montgomery, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 21, 1991.

    Walter Montgomery, pro se, for Claimant.
    Roland W. Burris, Attorney General (Terry Rock and Phillip McQuillan, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks damages against the Respondent due to personal injuries allegedly sustained when Respondent’s agent “rapped” the bars with a “steel bar” to determine whether the bars were intact and not tampered with, and a piece of debris or dried paint struck Claimant’s left eye causing him excruciating pain. Claimant was immediately treated by the Menard health care unit for a “superficial corneal abrasion.”

At the hearing in this cause, Claimant testified that the incident occurred on July 26,1986, at about 6:30 p.m. Claimant was in his cell at the time and was waiting for ice to be passed out. Claimant alleged that he was eager for the ice “to get there” and was watching for the ice delivery when he noticed Respondent’s agent coming from the opposite direction. Claimant’s face and eyes “might have been at least a foot away” from the bars as they were struck by Respondent’s agent. Claimant’s left side of his face was toward the bars and he could hear Respondent’s agent rapping the bars of cells adjacent to his cell as he approached. This “rapping” occurs practically every day. The bars of Claimant’s cell were painted gray. Claimant contends that at the time his eye was struck, he grabbed his eye and hollered. Soon after-wards, Respondent’s agent took Claimant to the health care unit. Claimant stated that he thought the injury was more serious than it turned out to be. At the time of the injury, Claimant thought “my eye was out.” Claimant believed he was hit in the eye with paint from the bars that were struck because his injury was simultaneous with the striking of the bars on his cell. Claimant stated that at no time were the inmates warned to retreat to the back of their cells during the “rapping” procedure which involved striking the cell bars with a steel bar 12 or 18 inches long. The striking of the steel bar against cell bars generates a loud sound. In the process of “rapping” the cell bars, the bars are struck with such force that if the bar has been tampered with or sawed, the bar “will give some indication with the strike.”

Claimant’s eye was examined at the Menard medical unit and treated with a tube of ointment and a patch over his eye. The pain began to subside later that night and was completely gone some later time far into the night of the incident. Claimant wore the patch about seven days. The medical department kept checking his eye. Claimant was sent to a specialist who recommended that he continue his eye drops. Claimant’s vision was not impaired in any way from the injury nor does he anticipate the need for further medical treatment.

Claimant was treated for approximately seven days and he has no complaint about the treatment he received. Claimant proved by a preponderance of the evidence that he was struck in the left eye by a loose particle or chip which broke free from the impact between a steel bar wielded by Respondent’s agent to the cell bars of his cell as part of a security routine to test whether or not cell bars were firmly secure. The cell bars are made of metal and covered by dried paint. Violently striking painted metal bars together in close physical proximity to a person’s face is negligent. The Claimant was injured as a direct and proximate result of the negligence of Respondent’s agent. If Respondent’s agent was unaware of the proximity of Claimant’s face to the metal bars being violently struck, then the negligence lies in failing to see and observe that which a reasonably prudent person would have seen and observed if engaged in striking metal bars violently against each other in the physical proximity to other persons. It is reasonable to conclude that Respondent’s agent was aware that there were prisoners in close proximity to. the area where Respondent’s agent was striking metal bars against each other. It seems neither unreasonable nor even mildly difficult to observe how far the inmates are from the metal bars being struck violently together before the testing procedure is commenced. On the other hand, if Respondent’s agent was aware of the close proximity of Claimant’s face to the area where the bars would be violently struck, then the negligence lies in having performed the task without requiring the inmate to remove himself from the close proximity of the area where the bars were being tested.

Although no permanent injury has been proven, or even alleged, there is no dispute that Claimant suffered the onset of considerable pain over what was thankfully a brief period of time. Thereafter, Claimant treated the corneal abrasion which he sustained for approximately one week. There are no special damages in this case.

Taking into account the nature, extent and duration of the injury, and the pain and suffering occasioned by the Claimant as a result of the injury sustained, that Claimant be awarded the sum of $350.00.

It is hereby ordered that Claimant be awarded the sum of $350.00 in full and complete satisfaction of this claim.


author: Jann, J.

text:
    (No. 88-CC-4668
    Ronald Rutledge and Lisa Rutledge, Claimants, v. Board of Governors of State Colleges and Universities and Western Illinois University, Respondent.

      Opinion filed October 21, 1991.

    Holley, Keith & Huntley, for Claimants.
    Patricia Rea, for Respondent.
   OPINION

Jann, J.

An evidentiary hearing was held on March 26,1991, at which time both parties appeared and were represented by counsel.

Ronald Rutledge, one of the Claimants, was, at the time of the incident giving rise to the claim for property damage, employed as a fireman’s helper at the Western Illinois University heating plant and had been so employed for approximately seven years. On March 20, 1988, Claimant, Ronald Rutledge, reported for work at the heating plant for the shift commencing at 12:00 a.m., and, with the permission of his supervisor, parked his 1987 Ford Ranger in the parking facility next to the plant alongside vehicles of other late night shift workers.

The Claimant testified that the fireman on duty was forced to shut down the furnace in the early morning hours and that hot oil emitted from the chimney stack during the course of the shutdown. The Claimant further testified that oil landed on his vehicle, causing burned spots on the paint of the vehicle. Repairs to the vehicle were in the amount of $1,213.66, for which Claimant seeks reimbursement.

Claimant asserts that Respondent breached its duty due to the malfunctioning in the furnace and the incomplete burning of the oil inside the gun.

Claimant relies on the doctrine of res ipsa loquitur in that the trier of fact can apply the doctrine by inference from circumstantial evidence and cites Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 269, 443 N.E.2d 569, 572. To avail himself of the res ipsa loquitur doctrine, the Claimant must demonstrate that the injury is the kind which does not occur in the absence of negligent acts, was caused by an entity or instrumentality within the exclusive control of the defendant, and was not due to any voluntary act or neglect on the part of the plaintiff. Lynch, 93 Ill. 2d at 269, 443 N.E.2d at 572.

Claimant argues that the mere emission of oil during the course of the shutdown was the result of negligence on the part of the Respondent. No other vehicles parked in the same area were similarly damaged. Claimant further testified that no similar incident had occurred while he was on duty in the seven years he had been employed at the heating plant. No evidence was introduced by which the trier of fact could, by inference, determine that the damage was caused by a negligent act on the part of the Respondent either by commission or omission.

The doctrine of res ipsa loquitur does not relieve the plaintiff of the burden of proving negligence. Imeg v. Beck (1986), 503 N.E.2d 324.

Wherefore, as Claimant did not present any evidence to support his claim that Respondent breached its duty of ordinary care or to support the inference for application of the res ipsa loquitur doctrine, this claim is hereby denied.


text:
    (No. 89-CC-0060
    Burnell Robinson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 8, 1991.

    Burnell Robinson, pro se, for Claimant.
    Roland W. Burris, Attorney General (Darrell Williamson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks damages from Respondent, State of Illinois, for the value of personal property claimed to have been lost by Claimant through the fault or neglect of Respondent or its agents. Claimant alleges a loss of $80.00.

The loss arises out of an incident which allegedly occurred on April 28,1987. Claimant was incarcerated at Joliet Correctional Center and was returned from Joliet to the Will County jail on a writ. Claimant packed his personal property at the time he was moved. Subsequently, he was returned to Joliet and was not permitted to keep his personal property due to technicalities involved in the Claimant’s case. When Claimant was returned to Joliet he was classified as a “new admittance,” and as a new admittance, he could not take his personal property with him.

Claimant attached a copy of the list of his property to his complaint and the valuations of the property were the prices that he paid for them. Claimant testified that the majority of the property consisted of new items, but some of the clothing had been used.

After being told that he could not receive his property as a “new admittance,” Claimant paid to have the property sent to his sister, Karen Robinson, at 253 North Ottawa Street, Joliet, Illinois. The State sent the property to a wrong address. Claimant was advised that he would have to pay additional funds to send the property to the correct address. Claimant had no funds to pay for the transfer. Thereafter, Claimant’s property was destroyed. Claimant had 10 days to pay the money so that the State could remit the property to the correct address. The State advised Claimant that if he did not submit additional funds, the property would be destroyed. Claimant testified that members of his family attempted to obtain the property from the State without success.

Claimant sustained his burden of proof that his personal property was given to the exclusive possession of Respondent, and that its loss was directly and proximately the result of Respondent’s failure to remit the items to the correct address.

Wherefore, it is hereby ordered that Claimant is awarded $80.00 in full and complete satisfaction of this claim.


text:
    (No. 89-CC-1199
    G.O.B. Construction, Inc., Claimant, v. Illinois Department of Rehabilitation Services, State of Illinois, Respondent.

      Order filed August 19, 1991.

      Order filed October 15, 1991.

    Fitzpatrick & Leahy, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, J.

This cause coming to be heard upon the Claimant’s motion for summary judgment on Count I of the complaint in the amount of $106,620.00, due notice having been given, and this Court being fully advised in the premises, finds that the parties had entered into a contract for the renovation of a cafeteria at Thornton Community College. The contract document was prepared on a form called the standard form of agreement between owner and contractor provided by the American Institute of Architects.

The contractor, G.O.B. Construction, Inc., was terminated before the work called for in the contract was completed. The parties are not contesting whether the termination was proper. Rather they are contesting the amount owed G.O.B. Construction, Inc. The contract stated that if the contractor performed certain services and provided certain materials the State would pay $178,980.00. The State had paid $72,360.00 prior to the termination. The State, after termination, hired other contractors to complete the work at a cost of $37,076.89. The Claimant contends that this amount may not be deducted from the amount owed because the Respondent does not have architect’s certificates as per sections G.C. 22 and G.C. 23 of the contract.

The relevant language of the above sections of the contract is as follows:

G.C. 23 OWNER’S RIGHT TO TERMINATE CONTRACT:
“The expense incurred by the Owners as herein provided and the damage incurred through the Contractor’s default shall be certified by the Architect.”
G.C. 22 THE OWNER’S RIGHT TO DO WORK:
“The Owner may deduct the cost thereof from the payment then and therefore due to the Contractor, provided however, that the Architect shall approve both such action and the amount charged to the Contractor.”

Section G.C. 23 speaks to “expense” and “damage” in regard to finishing the work, and such must be certified by the architect. Section G.C. 22 speaks to “cost” and the architect must “approve” the amount thereof. It is apparent that the Respondent has no architect’s certificate as to “expense” and “damage,” nor does it appear to have a written approval as to the amount of “cost.” The Claimant contends that under the cases cited by it, failure to have the architect’s certificate or approval means that the Respondent may not deduct from the amount due the Claimant the $37,076.98 it expended to complete the work, and the Claimant is entitled to the unpaid balance of the contract without further proof.

In support of its contention, the Claimant cites two cases in which the holding was that if an architect’s certificate in the language of the contract was “conclusive” as to the. cost of completion, the owner may not recover the cost of completion from a defaulting contractor without the certificate. (International Cement Co. v. Beifeld, 173 Ill. 179; Brighton Theatre Co. v. Graf, 248 Ill. App. 140.) In both cases the owner was the plaintiff seeking the cost of completion from a defaulting contractor.

In this claim the contractor is the Claimant seeking the balance of the contract price from the owner, and there is no language in the contract stating that the architect’s certificate is “conclusive” as to the cost of completion. Whether the language of the present contract is effectively equivalent to the language in the contracts in the cases of International Cement Co. and Brighton Theatre Co., supra, is an issue that we do not have to decide to rule on the Claimant’s motion.

Even if we were to agree with the Claimant as to the applicability of the holdings in the foregoing cases, the Claimant still must prove its claim. The Claimant has no architect’s certificates for the balance of the contract price as required by the contract, and it is not arguing that it was improperly terminated and, thus, prevented from getting the certificates. It appears that this particular situation is not covered in the contract. Therefore, this Court finds that the claim must be proved as in any other contract dispute. The Claimant must prove performance, the value of the work done, the value of the materials provided, etc. Thus, summary judgment for the unpaid balance of the contract in the amount of $106,620.00 cannot be granted. It is therefore, ordered that the Claimant’s motion for summary judgment is denied.

ORDER

Sommer, J.

This cause coming on to be heard on the stipulation of the parties, due notice having been given, and the Court being fully advised in the premises;

The Court finds that on or about October 27,1989, Claimant filed the above captioned complaint for monies due under a contract for the renovation of a cafeteria at Thornton Community College. That after negotiations between the parties, Respondent concedes liability for such claim only to the extent agreed herein. That no other evidence, oral or written, will be presented to the Court, and both parties waive briefs. That both parties agree that said award will constitute full and final satisfaction of the claim herein or any other claim arising out of the same occurrence.

It is hereby ordered that the Claimant is awarded $69,543.02, the amount of money left in the small business enterprise line item No. 001-48830-4400-0400.


text:
    (No. 89-CC-2135
    State Farm Mutual Automobile Insurance Company, as Subrogee of Dean and Mildred Taylor, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 5, 1992.

    Drake, Narup & Mead (Randall A. Mead, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Lawrence C. Rippe, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

On August 1, 1988, Claimant’s insureds, Dean Taylor and Mildred Taylor, were camping at pad 181 of the Shady Rest area of Wayne Fitzgerald State Park, a State campground maintained by the Department of Conservation. Parked on said pad was their 1988 Chevrolet extended cab truck with a camper and a 32-foot Holiday President pull trailer. The trailer was backed onto the pad and the truck parked facing the trailer so that the left side of the truck was aligned with the right side of the trailer. The Taylors were inside their trailer when they heard a loud noise. Mr. Taylor went outside and saw a riding lawn mower passing the left side of the truck, go around the truck and pass the left side of the truck and right side of the trailer. The course taken by the mower was corroborated by the mower driver.

Claimant’s insured testified that the mower discharge was pointed at the trailer as it moved on each side of the trailer. He also testified that the discharge chute of the mower was located on the right-hand side. Robert Christensen, the mower driver who operated this particular mower for years, testified that the discharge chute was fixed on the left side. Larry Leitner, supervisor at Wayne Fitzgerald, testified that he is familiar with this particular machine and that it discharges to the left. Christensen stated that he kept the discharge chute pointed away from the trailer as he went about his assignment of mowing the area. Mr. Christensen - testified that there were hickoiy hulls on the ground in the area being mowed and that one may have been picked up by the mower which he imagined could have bounced off a tree and then struck the camper. There was no direct evidence or testimony that such was what took place. Claimants sustained damages of $2,299.78 to their vehicles.

As maintained by Claimant and Respondent, the State owes a duty of reasonable care to the users of its parks. (Divis v. State (1969), 27 Ill. Ct. Cl. 135.) The State is liable when one of its employees, acting within the scope of their employment, breaches that standard. (Thielin v. State (1976), 31 Ill. Ct. Cl. 449.) The issue here is whether the State, by its employee, exercised reasonable care in this instance.

As argued by Respondent in its brief, the crucial factual issue here revolves around the direction of the discharge from the mower. If the discharge was to the right and toward the truck and trailer as testified by the Claimants, the State could be liable; however, if the discharge was to the left and away from the truck and trailer, then discharge directly from the mower could not have caused the damage to the truck and trailer. The only way damage could have occurred was by some remote possibility.

The evidence regarding the direction of the discharge is in direct conflict. Mr. Christensen testified that he had been operating this mower for years and that it had a fixed discharge to the left. He further testified that he was following clearly established custom and practice by driving the mower in a circular pattern so as to always point the discharge in a direction away from occupied pads. This testimony was confirmed by Mr. Leitner. Respondent’s witnesses testified that the mowing was done using customary procedure and may, therefore, be considered in determining whether due care has been exercised in a given situation. Denniston v. Shelly Co. (1977), 47 Ill. App. 3d 1054.

This Court has consistently held that the burden of proof in a negligence action is upon the Claimant and that Claimant must prove by a preponderance of the evidence that the State was negligent. (Hoekstra v. State (1985), 38 Ill. Ct. Cl. 156; Fausch v. Board of Trustees of University of Illinois (1989), 42 Ill. Ct. Cl. 175.) Claimant failed in meeting its burden of proof.

It is hereby ordered that this claim is denied.