text:
    (No. 00130
    In Re Application of Marilyn Kaiser

      Opinion filed May 4, 1978

   Per Curiam.

This claim, arising out of the death of a fireman allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiaries pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act,) Ill. Rev. Stat., Ch. 48, Sec. 281 et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s Office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted at a hearing on April 19, 1978, the Court finds that:

1. The Claimant, Marilyn Kaiser, is the widow of the decedent, and is the beneficiary who was designated by him as stated in her application for benefits.

2. The decedent, Leonard A. Kaiser, age 50, was a full-time fireman, a member of the Mount Prospect Fire Department and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on June 23, 1977.

3. On said date, at approximately 8:45 a.m., during regularly assigned duty hours, and pursuant to training requirements, firefighter Kaiser was stricken immediately after participating in a fire department rescue drill, which involved his carrying hose up stairs in simulation of an apartment building rescue. Emergency care was administered, and he was transported, by ambulance, to a hospital where he was pronounced dead at 9:40 p.m., the same date, June 23, 1977. The death certificate presented recited the immediate cause of death as “acute coronary trombosis,” with an approximate interval between onset and death, of “30 minutes,” and due to or as a consequence of “coronary arteriosclerosis, six months.” The evidence presented indicates that firefighter Kaiser’s death was caused and precipitated by the active performance of the duties required of him as a member of the Mount Prospect Fire Department.

4. Firefighter Kaiser was killed in the line of duty as defined in Section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act and the claim is therefore compensable thereunder.

It is hereby ordered that the sum of $20,000.00 be awarded to Marilyn Kaiser, as widow and designated beneficiary of the deceased fireman, Leonard A. Kaiser.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 00131
    In Re Application of Paula Marsek

      Opinion filed May 4, 1978

    Walter Wlodek, Attorney for Claimant.
    William J. Scott, Attorney General for Illinois; Vincent J. Biskupic, Assistant Attorney General, for Respondent.
   Per Curiam.

This claim, arising out of the death of a fireman, allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiaries pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act,) Ill. Rev. Stat., Ch. 48, Sec. 281 et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s Office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted at a hearing on April 19, 1978, the Court finds that:

1. The Claimant, Paula Marsek, is the widow of the decedent, and, in the absence of a designation of beneficiary, is the person entitled to receive benefits pursuant to the Act.

2. The decedent, Wallace J. Marsek, age 61, was a full-time fireman, a member of the Westchester Fire Department, and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on January 3, 1977.

3. On said date, at approximately 5:49 p.m., during regularly assigned duty hours, firefighter Marsek fell, striking his head on a concrete floor while removing snow from, and washing, a fire department truck in the Westchester Fire station. Immediately prior thereto, Marsek had driven the truck to, and assisted in, a rescue call; he drove the truck back into the fire station prior to commencing washing it. The certificate of death presented recited the immediate cause of death as “arteriosclerotic cardiovascular disease,” and the evidence presented indicates that fireman Marsek’s death was caused and precipitated by the active performance required of him as a member of the Westchester Fire Department.

4. Firefighter Marsek was killed in the line of duty as defined in Section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act and the claim is therefore compensable thereunder;

It is hereby ordered that the sum of $20,000.00 be awarded to Paula Marsek, as widow of the deceased fireman, Wallace J. Marsek.


text:
    (No. 00132
    In Re Application of Carol A. Abel

      Opinion filed December 19, 1977

   Per Curiam.

This claim arising out of the death of a deputy sheriff allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiary pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act,) Ill. Rev. Stat., Ch. 48, Sec. 281 et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s Office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted at a hearing on November 8, 1977, the Court finds that:

1. The Claimant, Carol A. Abel, is the widow of the decedent, as stated in the application for benefits, and, in the absence of a designated beneficiary, Section 3(e) of the Act, provides that any award hereunder shall be paid to the surviving widow.

2. The decedent, James R. Abel, age 23, was a full-time Deputy Sheriff employed by the Madison County Sheriff s Department and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on December 30, 1976.

3. On said date, at approximately 2:05 a.m., during regularly assigned duty hours and in uniform, Deputy Sheriff Abel was driving a fully marked patrol car of the Madison County Sheriffs Department west-bound on West Chain of Rocks Road, 300 feet east of Maryville Road, Madison County, en route to an Interstate Route “270” traffic accident investigation, to which he was dispatched, when his patrol car skidded upon a large patch of ice, which covered the entire roadway. As a result, the patrol car crashed into a utility pole, along the roadway, and caught fire. Deputy Abel was pronounced dead at the accident scene, and the death certificate indicates the immediate cause of death as “traumatic injuries to head and chest.”

4. Deputy Sheriff Abel was killed in the line of duty as defined in Section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act, and the claim is therefore compensable thereunder.

It is hereby ordered that the sum of $20,000.00 be awarded to Carol A. Abel, as widow of the deceased deputy sheriff, James R. Abel.


text:
    (No. 00133
    In Re Application of Josephine Palese

      Opinion filed November 14, 1977

   Per Curiam.

This claim, arising out of the death of a policeman allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiaries pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act,) Ill. Rev. Stat., Ch. 48, Sec. 281 et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General’s Office; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s Office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted, the Court finds that:

1. The claim herein was filed in behalf of Robert Joseph Palese; son of Chicago Police Sergeant Michael R. Palese; Robert Joseph Palese was designated as beneficiary of Sgt. Palese by form dated December 1, 1969.

2. Sgt. Palese, age 45, was a full-time police sergeant, employed by the Chicago Police Department, and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on March 22,1977.

3. On March 22,1977, Sgt. Palese, within regularly assigned duty hours and in uniform, was killed when struck by a railroad train, during a snow storm at 12:45 a.m. while searching the railroad right-of-way for a six-year-old girl who had been reported missing from her home near the search area. Sgt. Palese was killed instantaneously, and the immediate cause of his death was recited as “multiple injuries, extreme.”

4. Sgt. Palese was killed in the line of duty as defined in Section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act and the claim is therefore compensable thereunder.

It is héreby ordered that the sum of $20,000.00 be awarded to Robert Joseph Palese, the son and designated beneficiary of Chicago Police Sgt. Michael R. Palese.


text:
    (No. 00136
    In Re Application of Roberta Rusnak

      Opinion filed May 4, 1978

   Per Curiam.

This claim, arising out of the death of a policeman allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiaries pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act,) Ill. Rev. Stat., Ch. 48, Sec. 281 et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s Office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted at a hearing on April 19, 1978, the Court finds that:

1. The Claimant, Roberta Rusnak, is the widow of the decedent and is the beneficiary who was designated by him as stated in the application for benefits.

2. The decedent, John A. Rusnak, age 34, was employed as an investigator, Intelligence and Investigative Support Section, of the Cook County Sheriff s Police Department and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on August 3,1977.

3. On said date, at approximately 6:00 a.m., Deputy Rusnak, age 34, began his regular duty assignment as part of a continuing investigation of stolen automobiles. As he drove his Cook County Sheriffs automobile, his auto was struck by a truck, pinned against a guardrail, and burst into flames, trapping Rusnak. He died in the squad car, and the death certificate presented recites the cause of death as “burns, severe with multiple internal injuries.”

4. Deputy Rusnak was killed in the line of duty as defined in Section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act and the claim is therefore compensable thereunder.

It is hereby ordered that the sum of $20,000.00 be awarded to Roberta Rusnak, as widow and designated beneficiary of the deceased policeman, John A. Rusnak.


text:
    (No. 00138
    In Re Application of June Maxine Burns

      Opinion filed March 28, 1978.

    Robert J. Hillebrand, Attorney for Claimant.
    William J. Scott, Attorney General for Illinois; Vincent J. Biskupic, Assistant Attorney General, for Respondent.
   Per Curiam.

This claim arising out of the death of a policeman allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiaries pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act), Ill. Rev. Stat., Ch. 48, Sec. 281, et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted at a hearing before the full Court on March 15,1978, the Court finds that:

1. The Claimant, June Maxine Burns, is the mother of the decedent and is the beneficiary who was designated by him.

2. The decedent, Robert Broshears, age 25, was a patrolman employed by the East St. Louis Police Department and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on June 23, 1977.

3. On said date, at approximately 3:15 p.m., within his regular work hours and pursuant to his duty assignment, Officer Broshears was struck by a tractor-trailer truck while he was investigating, and assisting, at the scene of an earlier automobile accident. Officer Broshears was pronounced dead at 4:40 p.m., the same date, at the hospital to which he had been taken, and the Coroner’s certificate of death recites the immediate cause of death as “massive head and chest injuries.”

4. Officer Broshears was killed in the line of duty as defined in section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act, and the claim is therefore compensable thereunder.

It is hereby ordered that the sum of $20,000.00 be awarded to Ruth Maxine Burns, as mother and designated beneficiary of the deceased patrolman, Robert Broshears.


text:
    (No. 00139
    In Re Application of Wayne Earl Moore

      Opinion filed March 28, 1978.

   Per Curiam.

This claim arising out of the death of a fireman allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiary pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act), Ill. Rev. Stat., Ch. 48, Sec. 281, et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted at a hearing before the full Court on March 15,1978, the Court finds that:

1. The Claimant, Wayne Earl Moore, is the father of the decedent, and is the beneficiary who was designated by him as stated in the application for benefits.

2. The decedent, Floyd Gene Moore, age 22, was a volunteer fireman, a member of the Smithboro Volunteer Fire Department, and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on September 28, 1977.

3. On September 28, 1977, at approximately 8:25 p.m., firefighter Moore responded to an alarm of an automobile fire and rode to the fire scene upon the fire truck. As the truck slowed at the fire scene, firefighter Moore fell from the fire truck, as he descended, striking the back of his head on the pavement. Firefighter Moore’s skull was fractured; emergency aid was administered; and he was taken by ambulance to a hospital in St. Louis for special treatment, where he died at 8:40 a.m., the following morning, September 29,1977, without regaining consciousness after his fall. The certificate of death presented, recited the immediate cause of death as “diffuse brain damage and subarachnoid and subdural hemmorrhage,” due to or as a consequence of “occipital bone basilar skull fractures.”

4. Volunteer firefighter Moore was killed in the line of duty as defined in Section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act and the claim is therefore compensable thereunder.

It is hereby ordered that the sum of $20,000.00 be awarded to Wayne Earl Moore, as father and designated beneficiary of the deceased fireman, Floyd Gene Moore.


text:
    (No. 00140
    In Re Application of Cynthia Ann White.

      Opinion filed March 23, 1978.

   Per Curiam.

This claim arising out of the death of a policeman allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiaries pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act), Ill. Rev. Stat., Ch. 48, Sec. 281, et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted, the Court finds as follows:

1. The Claimant, Cynthia Ann White, is the widow of the decedent and is the beneficiary who was designated by him as stated in the application for benefits.

2. The decedent, Harry Ernest White III, age 30, was a Sergeant employed by the Waukegan Police Department and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on November 13,1977.

3. On said date, at approximately 9:43 p.m., within his regular work hours and pursuant to his duty assignment, Officer White was shot and killed as he attempted to arrest a homicide suspect. Officer White was pronounced dead at 10:15 p.m. at the hospital to which he had been taken the same date, and the coroner’s certificate of death recites the immediate cause of death as “cardio respiratory failure due to, or as a consequence of, gunshot wound of chest (liver, spleen and subclavian vein).”

4. Officer White was killed in the line of duty as defined in Section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act, and the claim is therefore compensable thereunder.

It is hereby ordered that the sum of $20,000.00 be awarded to Cynthia Ann White, as widow and designated beneficiary of the deceased Sgt. Harry Ernest White, III.


text:
    (No. 00144
    In Re Application of Thelma Bryant.

      Opinion filed March 28, 1978.

   Per Curiam.

This claim arising out of the death of a fireman allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiaries pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act), Ill. Rev. Stat., Ch. 48, Sec. 281 et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted at a hearing before the full Court on March 15,1978, the Court finds that:

1. The Claimant, Thelma Bryant, is the widow of the decedent, and is the beneficiary who was designated by him as stated in her application for benefits.

2. The decedent, Lloyd Bryant, age 66, was a volunteer fireman, of the rank of Assistant Chief of the Centraba Fire Protection District and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on February 1, 1978.

3. On February 1, 1978, at approximately 9:34 a.m., Assistant Chief Bryant was summoned, from his home by fire department radio call to the fire station. Officer Bryant, in full firefighting uniform and equipment, drove the fire department’s auxiliary fire hose truck to a factory building fire scene, where he pulled a 50 ffeet section of hose from the truck, attached it to a hydrant, and drove the truck to within 30 to 40. feet of the burning building. The hose was then connected to a pumper truck, and Bryant drove the truck about one-half block away to block traffic from entering the area. As Officer Bryant walked from the truck, towards the fire, he collapsed. Emergency care was administered, and he was taken to a hospital, where he was pronounced dead in the emergency room at 10:30 a.m. the same date. The death certificate furnished recites the immediate cause of death as “apparent myocardial infarction,” due to, or as a consequence of “diabetes mellitis,” and the evidence presented indicates that Officer Bryant’s death was caused and precipitated by the active performance of the duties required of him as a member of the Centralia Fire Protection District.

4. Assistant Chief Bryant was killed in the line of duty as defined in Section 2(e) of the Act.

5. That the proof submitted in support of this claim satisfies all of the requirements of the Act and the claim is therefore compensable thereunder.

It is hereby ordered that the sum of $20,000.00 be awarded to Thelma Bryant, as widow and designated beneficiary of the deceased fire officer, Lloyd Bryant.


text:
    (No. 00145
    In Re Application of Patricia A. Mathez.

      Opinion filed May 4, 1978.

    Barry Sherman, Attorney for Claimant.
    William J. Scott, Attorney General; Vincent J. Biskupic, Special Assistant Attorney General, for Respondent.
   Per Curiam.

This claim arising out of the death of a fireman allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiaries pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter, the Act), Ill. Rev. Stat., Ch. 48, Sec. 281 et seq., 1975.

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s Office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted at a hearing on April 19, 1978, the Court finds that:

1. The Claimant, Patricia A. Mathez, is the widow of the decedent, and is the beneficiary who was designated by him.

2. The decedent, Yvan Mathez, age 45, was a volunteer fireman, of the rank of captain, of the Butter-field Fire Protection District and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on January 12, 1978.

3. On January 12, 1978, at approximately 1:20 a.m., Captain Mathez was summoned, from his home by fire department radio call to the fire station. Captain Mathez, in full firefighting uniform and equipment, rode in the fire department’s pumper truck to a fire scene, one unit of the three unit townhouse. The residential unit was totally involved in flames. After about 90 minutes of assisting in combating the fire, Captain Mathez complained of chest pains and stated that he thought he might have taken too much smoke. He was given oxygen at the scene and taken to a hospital where he died at 3:30 a.m., the same date. The death certificate furnished recites the immediate cause of death as “acute occlusion of the right coronary artery,” approximate interval between onset and death of “hours,” due to or as a consequence of “coronary arteriosclerosis” with an approximate interval between onset and death of “years;” the death certificate adds “other significant conditions” as “possible smoke inhalation.” The evidence presented indicates that Captain Mathez’s death was caused and precipitated by the active performance of the duties required of him as a member of the Butterfield Fire Protection District.

4. Captain Mathez was killed in the line of duty as defined in Section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act and the claim is therefore compensable thereunder.

It is hereby ordered that the sum of $20,000.00 be awarded to Patricia A. Mathez, as widow and designated beneficiary of the deceased Captain Yvan Mathez.


text:
    (No. 00148
    In Re Application of Emily L. Gallo.

      Opinion filed May 4, 1978.

    Chapman and Cutler, by Charles Hughes, Attorney for Claimant.
    William J. Scott, Attorney General; Vincent J. Biskupic, Special Assistant Attorney General, for Respondent.
   Per Curiam.

This claim arising out of the death of a fireman allegedly killed in the line of duty, seeks payment of compensation to the decedent’s beneficiaries pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act,” (hereafter the Act), Ill. Rev. Stat., Ch. 48, Sec. 281 et seq., 1975

The Court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General; a written statement of the decedent’s supervising officer; and a report by the Illinois Attorney General’s Office which substantiates matters set forth in the application. Based upon these documents and other evidence submitted, the Court finds that:

1. The Claimant, Emily L. Gallo, is the widow of the decedent and is the beneficiary who was designated by him as stated in the application for benefits.

2. The decedent, Anthony M. Gallo, was a fireman employed by the Schaumburg Fire Department and engaged in the active performance of his duties, within the meaning of Section 2(e) of the Act, on December 16, 1977. He was 37 years of age.

3. On said date, at approximately 7:38 a.m., firefighter Gallo, age 37, responded, during regularly assigned duty, with his unit to a fire alarm. As the fire truck upon which he was riding skidded to avoid a collision with a private automobile, the fire truck went over a curb, into a drainage ditch, overturned, and pinned Gallo beneath it. Firefighter Gallo was pronounced dead at 9:05 a.m. the same date, and the certificate of death presented recited the immediate cause of death as “massive internal injuries,” due to or as a consequence of “fire engine mishap.”

4. Firefighter Gallo was killed in the line of duty as defined in Section 2(e) of the Act.

5. The proof submitted in support of this claim satisfies all of the requirements of the Act and the claim is therefore compensable thereunder.

It is hereby ordered that the sum of $20,000.00 be awarded to Emily L. Gallo, as widow and designated beneficiary of the deceased fireman, Anthony M. Gallo.


text:
    (No. 75-CV-0319
    In Re Application of Robert Lee Cooper, et al.

      Opinion filed April 7, 1978.

    Taube and Phipps, by William H. Taube, Attorney for Claimant.
    William J. Scott, Attorney General for Illinois; Alan Hoffman, Assistant Attorney General.
   Per Curiam.

This is a claim for compensation pursuant to the provisions of the “Crime Victims Compensation Act” (Ill. Rev. Stat., 1973, Ch. 70, § 71, et seq.), hereinafter the Act.

This Court has carefully considered the Claimant’s application for benefits and the Commissioner’s report of the hearing that was held on March 2, 1977.

According to the facts adduced at the hearing it is the Claimant’s contention that the victim’s minor children are entitled to compensation for loss of suport based upon Aid to Dependent Children payments. The victim received $467.00 per month in the form of Aid to Dependent Children payments. Presently, the minor children are receiving $214.00 per month in Social Security Benefits and $28.00 in public assistance from the State of Mississippi. The Claimant seeks the difference, $225.00 as loss of support for the victim’s minor children.

The issue is whether support payments would be considered earnings so as to compensate the victim’s children for loss of support.

The “Crime Victim’s Compensation Act” § 74 provides as follows:

____Loss of earnings, loss of future earnings and loss of support shall be determined on the basis of the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.

This Court understands earnings to be compensation for services rendered. Support payments are monetary payments made by the state because the recipient is in need of them. Public Aid or support payments are not earned. They are given at the discretion and under the supervision of the State. Therefore, in view of the foregoing this court believes that the support payments were not earnings and cannot be used as a basis for loss of support.

As to the funeral bill of $535.00 this Court believes that it is compensable under the Act subject, however, to the $200.00 exclusion in § 7 (d) of the Act.

It is, therefore, ordered that the claim for loss of support be denied and the funeral bill be allowed in the amount of $335.00.


author: Poch, J.

text:
    (No. 75-CV-0366
    In Re Application of June Cannon Brown

      Order filed May 5, 1978.

   Poch, J.

This claim comes for rehearing upon the motion of the Claimant, June Cannon Brown, pursuant to Section 79 of the “Illinois Crime Victims Compensation Act,” Ill. Rev. Stat., Ch. 70, Sec. 79 (hereafter referred to as the Act) under which a claim was made by Claimant and denied on September 17,1976, because the Claimant had not met a required condition precedent to her right to compensation under the Act. The matter was referred to a Commissioner of this Court for a hearing.

The hearing disclosed that the Claimant on January 2, 1974, at about 9:30 P.M. at 400 West Cornelia Street, Chicago, Illinois, was struck by an assailant and robbed of a shopping bag containing a change purse. Claimant suffered facial injuries.

Claimant was taken to St. Joseph’s Hospital where she received first aid treatment and was released.

At the time of the assault, Claimant was under the care of a physician for injuries and a nervous condition as a result of a motorcycle accident which occurred in September of 1973.

The Claimant was unable to present any evidence that the expenses she incurred were in any way related to the assault of January 2, 1974. Most of her bills related to her hospitalization for psychiatric treatment and care, and not related to the incident of January 2, 1974.

The only bill submitted by Claimant to have any probative value was $64.00 for new glasses.

Section 73 (b) of the Act limits the right of compensation to persons who have suffered a pecuniary loss of $200.00 or more attributable to a violent crime.

The Court finds from the evidence that the Claimant has failed to show a pecuniary loss of $200.00 or more as required by Section 73 (b) of the “Crime Victims Compensation Act,” which is a required condition precedent for compensation under the Act.

It is therefore ordered that the Court’s order of September 17, 1976, be, and is hereby affirmed, and this claim is again denied with prejudice.


author: Polos, C.J.

text:
    (No. 75-CV-0421
    In Re Application of Gary Lee Baxter

      Opinion filed August 25, 1977.

    Dick H. Mudge, Attorney for Claimant.
    William J. Scott, Attorney General for Illinois; Howard Feldman, Assistant Attorney General.
   Polos, C.J.

This claim arises out of an alleged criminal offense that occurred on March 4, 1974, at Tower Lake Apartments at Southern Illinois University in Edwardsville, Illinois. Gary Lee Baxter seeks compensation pursuant to the provisions of the “Crime Victims Compensation Act,” Ill.Rev.Stat. Ch. 70, para. 71, et seq., hereinafter referred to as the Act.

The claim was denied by an order entered on October 2, 1975, wherein this Court found that the Claimant and his assailant, were members of the same household at the time of the incident, and that recovery was therefore precluded under the Act. Pursuant to Section 9 of the Act, Claimant requested a hearing on modification of that order.

The Court has carefully considered the transcript of that hearing, the application for benefits filed by Claimant on the form prescribed by the Court, and the investigatory report of the Attorney General of Illinois. Based upon these documents and other evidence submitted to it, the Court finds:

1. Gary Lee Baxter, age 25, of 407-2D Tower Lake Apt., Edwardsville, Illinois, was a victim of a violent crime, as defined in Sec. 2(c) of the Act, to wit: “Battery” (Ill.Rev.Stat., ch. 38, para. 12.)

2. Claimant was a student at Edwardsville, Illinois. On March 4, 1974, at approximately 7:30 p.m. in apartment 406-2D at Tower Lake Apts., at Southern Illinois University, Claimant was attacked by one of his roommates, Dwight C. Williams. Williams struck the Claimant on his right arm with a metal bed rail causing a compound fracture of the arm.

3. The appropriate law enforcement officials were notified of the perpetration of the crime.

4. Claimant cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant. On May 10, 1974, Dwight C. Williams entered a plea of guilty to a charge of battery.

5. The injury to the Claimant was not substantially attributable to his wrongfuly act or substantial provocation of his assailant.

6. Claimant’s notice and application were filed within the appropriate time limitations.

7. Claimant and the assailant were not related.

The issue in this case is the interpretation of the phrase “same household” as it appears in Section 73(e) of the Act, which makes recovery conditional upon proof that “the victim and his assailant were not related, and sharing the same household.”

In its order of October 2,1975, this Court concluded that: “The assailant, Dwight C. Williams, at the time of the incident resided with Gary Lee Baxter and shall be considered a member of the same household of Gary Lee Baxter.” On this ground the Court denied the Claimant’s application.

At the hearing herein, the Claimant testified that he did not know his assailant before he became his roommate and that he had not requested his assailant for a roommate. The Claimant described his living quarters as having a common living room, dining room, kitchen, and bathroom. There were two separate bedrooms and two people lived in each bedroom. Claimant did not sleep in the same bedroom as his assailant.

Black’s Law Dictionary, 4th Edition, defines “household” as: “A family living together. Those who dwell under the same roof and compose a family.” Household is commonly held synonymous with family, and includes all those persons who are gathered together under one domestic head.

It is the opinion of the Court that a “household” did not exist in the relationship between the Claimant and his assailant. They were simply sharing living quarters while at college. Claimant had not requested the assailant for a roommate and they only shared certain common elements of an apartment. The Court therefore concludes that Claimant and his assailant were not sharing a household.

The Court further finds that Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

Claimant seeks compensation for medical expenses but not for loss of earnings. Claimant incurred the following medical expenses:

St. Joseph’s Hospital $ 44.98
St. Elizabeth Hospital 61.12
Alton Memorial Hospital 1,016.10
Alton Orthopedic Clinic 675.00
$1,797.20

Claimant has received approximately $600.00 from his assailant, Dwight Williams, and pursuant to Section 7(d) of the Act, $200.00 must be deducted from all claims.

Hospital and Medical Expenses $1,797.20
Contribution from Dwight Williams -600.00
Less $200.00 deductible -200.00
$ 997.20

It is hereby ordered that the sum of $997.20 be awarded to Gary Lee Baxter, as the innocent victim of a violent crime. The Court further finds that the sum of $200.00 is a fair and reasonable attorney’s fee for the representation of Claimant at the hearing herein.


text:
    (No. 76-CV-0484
    In Re Application of Gbolahan R. Ajayi

      Order filed January 29, 1978.

   Poch, J.

This claim arises out of a criminal offense which occurred on or about the eighth day of September, 1975. Claimant seeks compensation pursuant to the applicable provisions of Ill. Rev. Stat., Ch. 70, Sec. 71, et. seq. (“Crime Victims Compensation Act”, hereinafter referred to as the Act).

The claim was filed on or about the 26th day of November, 1975. Thereafter, based upon the investigatory report submitted by the Attorney General of the State of Illinois and the other documentary evidence, the Court rendered its opinion on or about the 28th day of July, 1978. Claimant filed his objection to said opinion and requested a full hearing on the merits.

The hearing was conducted by Commissioner Leo J. Spivack on the 25th day of October, 1978, at Chicago, Illinois. As a result of said hearing the following facts were established by a preponderance of the evidence:

(1) Claimant, Gbolahan R. Ajayi, was a victim of a violent crime, as defined in Section 2(c) of the Act, to-wit: “Aggravated Battery.”

(2) Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

(3) Claimant incurred no medical and/or hospital expenses, all having been paid or reimbursed by insurance.

(4) Claimant had been employed for one week prior to the crime and his earnings for said week were about $300.00. Prior to the said date of crime, to-wit: September 8,1975, Claimant had been unemployed for a period of about seven months, having been last employed on February 18, 1975.

(5) Claimant was disabled from September 8,1975, to January, 1976, at which time he matriculated as a full-time student at Northwestern University.

(6) As a result of the occurrence, Claimant received the following deductible benefits:

(a) Industrial Commission Award $5,000.00

(b) Disability benefits from his employer, at the rate of $571.00 monthly 6,952.18

Total: $11,952.18

which said deductible benefits exceed any possible award payable under the Act.

It is hereby ordered that based upon the finding of fact the Order of July 28,1978, will remain in full force and effect inasmuch as'the deductible benefits already received by Claimant exceed any award to which he would be entitled under the Act.


text:
    (No. 75-CV-0810
    In Re Application of Natale Saraceno

      Order filed May 12, 1978.

    Victor F. Ciardelli and Edward M. Nichol, Attorneys for Claimant.
    William J. Scott, Attorney General for Illinois; Alan C. Hoffman and Orisha Kulick, Assistant Attorneys General.
   Polos, C.J.

This is an action for compensation under the “Crime Victims Compensation Act,” Ill. Rev. Stat. Ch. 70, para. 71, et. seq., hereafter the Act.

By an order dated December 27, 1976, this Court denied the instant claim, on the ground that the Claimant had not fully cooperated with law enforcement officials in the apprehension and prosecution of his assailant.

Claimant thereafter requested a hearing before a Commissioner of this Court.

On consideration of the evidence adduced at that hearing, the Court finds that Claimant was the victim of a shooting on March 13, 1975, in an establishment known as the Zorba’s Lounge in Cicero, Illinois. Subsequent to the shooting, Claimant denied knowing his assailant. In testifying at the hearing, he also denied having known his assailant and further denied that he had told his wife that the man who had shot him was named Sam Passerlla.

Bonnie Saraceno, who had formerly been a close friend of the Claimant, was called as a witness by Respondent. She testified that on the night of the shooting she was the bartender in the Zorba Lounge. She said that her then current boyfriend was one Robert Passerlla, and that when Natale Saraceno entered the lounge, she introduced Claimant to Passerlla and they had several drinks together. She further testified that an argument ensued between them and that she saw Passerlla shoot Claimant.

On cross-examaination she testified that Robert Passerlla is now deceased.

From this testimony, the Court concludes that Claimant knew his assailant, and willfully failed to cooperate with law enforcement officials in his apprehension and prosecution. Since a condition to recovery under the Act is that a Claimant cooperate fully with law enforcement officials in the apprehension and prosecution of his assailant, Claimant is not entitled to compensation.

For the foregoing reasons, the Court finds no cause to modify the order of December 27,1976, denying this claim.


text:
    (No. 75-CV-0829
    In Re Application of Steven W. Cushing

      Opinion filed January 9, 1978.

    Marian Newdell, Attorney for Claimant.
    William J. Scott, Attorney General for Illinois; Grisha Kulick, Assistant Attorney.General.
   Polos, C.J.

This claim arises out of an alleged criminal offense which occurred on Janury 18,1975 in Chicago, Illinois. Claimant seeks compensation pursuant to the provisions of the “Crime Victims Compensation Act,” Ill. Rev.Stat., Ch. 70, para. 71, et seq, hereinafter the Act.

On November 3, 1976, this Court entered an order denying this claim, on the ground that Claimant had failed to cooperate fully with law enforcement officials in the apprehension and prosecution of his assailant, as required by the Act. Pursuant to Section 9 of the Act, Claimant requested a hearing on modification of that order, and a hearing was accordingly held before a Commissioner of this Court.

Testifying as a witness on his own behalf, Claimant stated that on the evening of January 18,1975, he was robbed and shot in the abdomen by four men. He further testified that several days later, while he was still hospitalized, he was interviewed by a Chicago police officer, who asked him to view photographs in an effort to identify his assailants. Claimant said that he refused to view the photographs because he was “scared of reprisal.”

Henry Leleja, a Chicago police officer, testified that he contacted Claimant on January 21,1975, in his room at the Englewood Hospital, and asked him to view some photographs as soon as he was physically able. Leleja said that Claimant refused to do so, and that although he told Claimant that he could come into his office at any time in the future to view the photographs, Claimant never did so.

The foregoing testimony clearly establishes that Claimant failed and refused to cooperate with law enforcement officials in apprehending his assailants, which is a condition precedent to recovery under the Act.

The Court therefore finds that there is no reason to modify its order of November 3,1976, denying recovery to Claimant.


text:
    (Case No. 76-CV-0201
    In Re Application of Aurea Hermania Aponte, Claimant, v. State Of Illinois, Respondent.

      Opinion filed January 31, 1978.

    Miller & Pomper, Attorneys for Claimant.
    William J. Scott, Attorney General; Grisha Kulick, Assistant Attorney General.
   Per Curiam.

This claim arises out of an incident that occurred on December 28,1974. The Claimant, Aurea Hermania Aponte, wife of the deceased victim, seeks compensation pursant to the provisions of the “Crime Victims Compensation Act,” hereafter referred to as the Act, (Ill. Rev. Stat., ch. 70, sec. 71, et seq.).

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

1. That the Claimant’s deceased husband, Ignacio Aponte, age 44, was a victim of a violent crime as defined in §2 (c) of the Act, to wit: Murder (Ill. Rev. Stat., ch. 38, § 9-1).

2. That on December 28,1974, the victim was shot by an unknown assilant while standing on the back porch of his apartment located at 853 West Barry, Chicago, Illinois. He was taken to Illinois Masonic Hospital where he later died.

3. That this claim complies with all pertinent provisions of the Act.

4. That the Claimant seeks compensation under the Act for funeral expenses and for loss of support.

5. That funeral and burial expenses were paid by the Claimant in the amount of $2,198.25.

6. The Claimant has incurred unreimbursed hospital expenses in the amount of $1,193.25.

7. The Claimant, Aurea Hermania Aponte and her minor children, Edgar Ignacio Aponte, age 17, and Alexis Julio Aponte, age eight, were totally dependent upon the victim and relied on him completely for support.

8. That section 4 of the Act states “. . . loss of support shall be determined on the basis of the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.”

9. That prior to his death, the victim was employed by the Chicago Transit Authority and his average monthly earnings prior to his death were $1,192.90.

10. That the victim was 44 years of age at the time of the crime, therefore, his work expectancy would have been 21 years. The projected loss of earnings for 44 years is in excess of $10,000.00 which is the maximum amount compensable under section 7(e) of the Act.

11. That sec. 7(d) of the Act provides for deduction of $200.00 plus the amount of benefits, payments or awards payable under the “Workmen’s Compensation Act "(Ill. Rev. Stat., ch. 48, sec. [38] et. seq.), from any other source except annuities, pension plans, Federal Social Security benefits and the net proceeds of the first $25,000.00 of life insurance paid or payable to the Claimant.

12. That after making all the applicable deductions under the Act, the Claimant’s loss is in excess of the $10,000.00 maximum award allowed in sec. 7(e) of the Act.

13. The Claimant’s interest would be best served if the award hereunder would be paid to her pursuant to the alternative provisions of sec. 8 of the Act.

It is therefore, hereby ordered that the sum of $10,000.00 be and is hereby awarded to Aurea Hermania Aponte, wife of Ignacio Aponte, an innocent victim of a violent crime to be paid and disbursed to her as follows:

(a) Two thousand five hundred dollars in a lump sum within 30 days of the filing date herein.
(b) Fifteen equal monthly payments of $500.00 each with the first of said payments to be paid within 60 days of the filing date herein to be paid to Aurea Hermania Aponte for the use and benefit of her minor children, Edgar and Alexis.


text:
    (No. 76-CV-1364
    In Re Application of Bill T. Groom

      Order filed May 25, 1978.

   Polos, C.J.

This is an action under the “Crime Victims Compensation Act,” (Ill.Rev.Stat., Ch. 70, Para. 71, et seq.) hereafter the Act.

A hearing was had in this matter before the Commissioner of this Court. At that hearing, Claimant testified that on June 15,1976, he had been working in his garden at 595 South Winchester Avenue in Chicago. He said that he went into the house to obtain a pack of cigarettes and that as he started down the stairs two individuals suddenly appeared and fired two bullets at him. One of the bullets struck him in the stomach and one in the wrist. He said that he did not know either of the two people who shot him.

Claimant testified that he was taken to Engel wood Hospital, and subsequently transferred to Cook County Hospital. He was hospitalized for six or seven days, and his hospital bills total $1,547.40. He said that at the time of injury he was working for Ready-Man, a company that furnishes day labor, and that his monthly salary was approximately $350.00. He said that as a result of the shooting, he lost approximately $1,050.00 in wages.

Larry L. Augustine and Donald Barton were Chicago Police officers who answered the police call regarding the shooting. Augustine said that when he asked Groom what had happened, Groom told him that he had been upstairs asleep when he heard noises and that when he came down to investigate he saw a male negro in his front room who shot him and fled. Augustine said that Groom told him that he had seen the man who shot him before, and that the man was known to hang around with an individual named “Sundown.” Groom told Augustine that although he had seen his assailant before, he did not know his name, but Groom indicated that he knew where he could be located. Augustine added that Claimant was unresponsive and non-cooperative in answering his questions. Augustine also said that the weapon used in the shooting was recovered in a back upstairs bedroom of Claimant’s house.

Donald Barton also said that Claimant told him that a male negro shot him, but that Claimant was otherwise not responsive to their questioning.

Officer John Boil interviewed Claimant approximately one week after the shooting. Boil said that Claimant told him that he was shot by three male negros. Boil said that he asked Claimant to look at photographs of individuals to try to identify the assailants but Claimant declined to do so.

Augustine also said that the weapon used in the shooting had been stolen, and that in his opinion it was extremely unusual for assailants to leave a gun which had been used in a shooting on the premises.

A condition of recovery under the Act is that an applicant fully cooperate with law enforcement officials in the apprehension and prosecution of his assailants. From the testimony adduced at the hearing, the Court concludes that Claimant knew his assailant, and did not fully cooperate with the law enforcement officials in his apprehension and prosecution. The Court also finds it highly unusual that the weapon used in the shooting of Claimant was found in a bedroom of Claimant’s house. That circumstances, coupled with the testimony of the investigating police officers that Claimant was not cooperative and forthcoming in describing his assailant, and that he refused to examine mugshots in an attempt to identify his assailant, couples the conclusion that Claimant did not fully cooperate with law enforcement officials.

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


text:
    (No. 76-CV-1557
    In Re Application of Lynn Reed

      Opinion filed March 16, 1978.

   Per Curiam.

This claim arises out of an incident that occurred on May 25, 1975. Lynn Reed, wife of Odice Reed, deceased victim, seeks compensation pursuant to the provisions of the “Crime Victims Compensation Act,” hereafter referred to as the Act, (Ill. Rev. Stat., ch. 70, sec. 71, et seq.).

This Court has carefully considered the application for benefits submitted on the form prescribed by the Court, and a report of the Attorney General of the State of Ilinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted before the Court, the Court, finds:

1. That the Claimant’s deceased husband, Odice Reed, age 28, was a victim of a violent crime as defined in §2 (c) of the Act, to wit: Murder (Ill. Rev. Stat., ch. 38, sec. 9-1.).

2. On May 25, 1975 the victim received several gunshot wounds. He was found lying in the front seat of his car parked in the alley at 6814 South Throop, Chicago, Illinois. The victim was taken to St. Bernards Hospital where he was pronounced dead on arrival.

3. That this claim complies with all pertinent provisions of the Act.

4. That the Claimant seeks compensation under the Act for funeral expenses and for loss of support.

5. That funeral and burial expenses were paid by the Claimant in the amount of $3950.00 of which $2000.00 is deemed compensable.

6. The Claimant, Lynn Reed, and her three minor children, Vonnie - age seven, Odis - age eight, and Lionell - age ten, were totally dependent upon the victim for support.

7. That section 4 of the Act states “ . . . loss of support shall be determined on the basis of the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.”

8. That prior to his death, the victim was employed by Young, Spring and Wire and his average monthly earnings prior to his death were $682.89.

9. That the victim was 28 years of age at the time of the crime, therefore his work expectancy would have been 37 years. The projected loss of earnings for 37 years is in excess of $10,000.00 which is the maximum amount compensable under section 7(e) of the Act.

10. That sec. 7(d) of the Act provides for deduction of $200.00 plus the amount of benefits, payments or awards payable under the “Workmen’s Compensation Act,” Ill. Rev. Stat., ch. 48, sec. 138.1, et seq.), from any other source except annuities, pension plans, Federal Social Security benefits and the net proceeds of the first $25,000.00 of life insurance paid or payable to the Claimant.

11. That after making all the applicable deductions under the Act, the Claimant’s loss is in excess of the $10,000.00 maximum award allowed in sec. 7(e) of the Act.

12. The Claimant’s interest would be best served if the award hereunder would be paid to her pursuant to the alternative provisions of sec. 8 of the Act.

It is therefore, hereby ordered that the sum of $10,000.00 be and is hereby awarded to Lynn Reed, wife of Odice Reed, an innocent victim of a violent crime to be paid and disbursed to her as follows:

(a) Two thousand dollars in a lump sum within 30 days of the filing date herein.
(b) Sixteen equal monthly payments of $500.00 each with the first of said payments to be paid within 60 days of the filing date herein to paid; to Lynn Reed for the benefit and support of herself and her three minor children, Vonnie Reed, Lionell Reed, and Odis Reed.


author: Holderman, J.

text:
    (Case No. 4833
    Clarence G. Kirby, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 28, 1979.

    Gillespie Burke & Gillespie, Attorneys for Claimant.
    William J. Scott, Attorney General, for Respondent.
   Holderman, J.

The complaint in this case was originally filed on July 23,1958, and was reassigned for decision on May 5,1977. For reasons not disclosed in the file, it has not been disposed of previously.

Claimants filed a complaint seeking an award in the amount of of $20,000.00 for alleged negligence of the Secretary of State in failing to comply with the requirements of the Motor Vehicle Law of the State of Illinois.

The facts of the case are not in dispute and are set forth in Claimants’ brief, substantially as follows:

On May 16, 1955, John V. Glanders, a resident of Macoupin County, Illinois, was convicted in the County Court of Macoupin County, Illinois, of the offense of driving while intoxicated, in violation of Section 47 of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat., ch. 95%, Sec. 144. The report of conviction was forwarded by the Clerk of the County Court of Macoupin County, Illinois, to the Secretary of State of the State of Illinois, and received on May 19,1955, and the Secretary of State in accordance with the aforementioned Section of the Uniform Act Regulating Traffic on Highways did on May 21,1955, revoke the operator’s license of the said John V. Glanders and notice of revocation was sent to John V. Glanders on May 24,1955.
Thereafter, John V. Glanders did on May 15, 1957, at Carlinville, Illinois, make written application to the Secretary of State of the State of Illinois for re-instatement of his operator’s license and in the application disclosed that his operator’s license had been suspended, revoked or cancelled, and on the same date Glanders took the Illinois Driver’s examination from Otto C. Burkett, an employee of the Secretary of State of the State of Illinois, who was on said date employed as a Driver’s License Inspector in Carlinville, 111. Burkett permitted Glanders to take the examination and passed him without a letter of authorization from the Driver’s License Division of the Secretary of the State of Illinois, as required by law. It was disclosed to Burkett at the time of the examination, and is so indicated on the examination report, that the license of Glanders had been revoked in 1954 at the County Court of Macoupin County, Illinois, for driving while intoxicated. Burkett forwarded the Glanders papers to Springfield without any explanation or notation explaining any of the circumstances relating to the circumstance of this case.
On May 24,1957, operator’s license No. A4-227-515 was issued to John V. Glanders by the Drivers License Division of the Secretary of State at Springfield, Illinois, although there was no letter of authorization for a reinstatement examination attached to the examination report and license application as required by law. At the time it was issued there had not been established by Glanders any proof of financial responsibility by any of the methods permitted by law, and the Secretary of State of the State of Illinois was not only without authority to issue the license but was expressly prohibited from issuing a license. On July 19, 1957, John V. Glanders, while driving under the influence of intoxicating liquor willfully and wantonly drove a motor vehicle in a northerly direction along and upon the southbound lanes of U.S. Highway 66 for approximately 20 miles, and at a point approximately three miles south of the City of Springfield, County of Sangamon, State of Illinois, he caused his motor vehicle to come into collision with a motor vehicle being driven by the Claimant, Clarence G. Kirby. As a result of this accident, John V. Glanders was killed. Clarence G. Kirby was injured, his wife, Vernon A. Kirby, was killed, and Joyce Kirby and Helen Kirby, minor children of Clarence and Vernon Kirby, received injuries. At the time of the accident, John V. Glanders has not as yet satisfied the requirements of the financial responsibility law of the State of Illinois.
On June 12,1958, an action was instituted in the United States District Court for the Southern District of Illinois, Southern Division, by Clarence G. Kirby, Helen Kirby, a minor, by Clarence G. Kirby, her father and next friend, Joyce Kirby, a minor, by Clarence G. Kirby, her father and next friend, and Clarence G. Kirby, Administrator of the Estate of Vernon A. Kirby, Deceased, said action being brought against Martha Lucille Glanders, Administrator of the Estate of John V. Glanders, Deceased, said cause being docketed as Civil Action No. 2525. On July 9, 1958, the cause in the United States District Court came on for hearing and the Court having heard evidence in open court found that John V. Glanders, while under the influence of intoxicating liquors, did willfully and wantonly inflict injuries upon the Claimants and caused the death of Vernon A. Kirby and entered the following judgments:
Clarence G. Kirby $ 7,500.00
Helen Kirby, a minor, by Clarence G.
Kirby, her father & next friend 1,000.00
Joyce Kirby, a minor, by Clarence G.
Kirby, her father & next friend 10,000.00
Clarence G. Kirby, Administrator of the
Estate of Vernon A. Kirby, deceased 20,000.00
each of said judgments being entered against Martha Lucille Glanders, Administrator of the Estate of John V. Glanders, deceased.
Execution was duly issued by the Clerk of the United States District Court and served by the United States Marshal, but returned on July 10, 1958, endorsed “No property found, no payment made, no part satisfied.”
The Estate of John V. Glanders is insolvent, there being absolutely no assets. John V. Glanders, at the time of the occurrence on July 19,1957, did not possess any automobile liability insurance, nor was there any automobile liability insurance covering the motor vehicle he was operating.”

The Claimants’ theory of the case is that the provisions of the financial responsibility statute, was enacted for the benefit of the traveling public in general, and without reference to any specific person, claim or accident.

Respondent denied liability on the grounds that the error of the Secretary of State was not the approximate cause of the injuries for which the State must respond.

Claimants concede that the action of the Secretary of State had no casual relation to the collision that occurred on July 19,1957, but argue that the only issue presented to this Court for consideration is the construction of, and Claimants rights if any, under the motor vehicle laws of this State.

The pertinent sections of the motor vehicle law that must be considered by this Court are as follows:

Illinois Rev. Stat., Ch. 95V2, Sec. 144, 1953. PERSONS UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR NARCOTIC DRUGS.

(b) Every person who is convicted of a violation of this section shall be punished by imprisonment for not less than two days nor more than one year, or by fine of not less than $100.00 nor more than $1,000.00 or by both such fine and imprisonment. On a second or subsequent conviction he shall be punished by imprisonment for not less than 90 days nor more than one year, and, in the discretion of the Court, a fine of not more than $1,000.00.
The Secretary of State shall revoke the chauffeur’s license of any person convicted under this section. As amended by act approved June 24, 1953.

Illinois Rev. Stat., Ch. 95V2, Sec. 73-3, 1955. GROUNDS FOR REVOCATION OF LICENSE OR PERMIT, RESTRICTED DRIVING PERMIT.

Except as hereinafter provided, the Secretary of State shall forthwith revoke the license or permit of any operator or chauffeur upon receiving a report of such operator’s or chauffeur’s conviction of any of the following offenses, when such conviction has become final:
(2) Violation of Sec. 47 of the Uniform Act Regulating Traffic on Highway relating to the offense of operating a motor vehicle while under the influence of intoxicating liquor or narcotic drugs.

Illinois Rev. Stat., Ch. 95V2, Sec. 58b, 1955.

PROOF OF FINANCIAL RESPONSIBILITY REQUIRED AFTER REVOCATION SUSPENSION OF DRIVING PRIVILEGES.

(b) Upon the revocation of any operator’s or chauffeur’s license of any person as provided in Section 33 or 34 of the “Drivers License Act,” the Secretary of State shall suspend any and all of the registration certificates and license plates issued for any motor vehicle registered in the name of the person as owner except that he shall not suspend such evidences of registration in the event such owner has previously given or shall immediately give him and thereafter maintain for a period of three years, proof of financial responsibility in the manner hereinafater specified in this Act with respect to each and every motor vehicle owned and registered by such person. The suspension of such certificates of registration and license plates of such person shall remain in effect and the Secretary of State shall not issue to any such person any new or renewal of operator’s or chauffeur’s license and shall not register or re-register in the name of such person any motor vehicle until permitted under this Act and not then unless and until said person gives proof of his financial responsibility in the future as hereinafter provided in Section 42-5 of this Act. If any person who is not a resident of this State has been convicted of an offense which would require the revocation of the license of a resident, such non-resident shall not operate any motor vehicle in this State nor shall any motor vehicle owned by him be operated within this State by any person, and the Secretary of State shall not issue to such non-resident any operator’s or chauffeur’s license and shall not register any motor vehicle owned by such non-resident unless and until such non-resident shall give proof of financial responsibility.
Whenever the Secretary of State determines that any person required to give proof hereunder by reason of a conviction is not the owner of a motor vehicle but was, at the time of such conviction a chauffeur or operator in the employ of an owner of a motor vehicle, or a member of the immediate family or household of the owner of a motor vehicle, the Secretary of State shall accept proof of financial responsibility given by such owner in lieu of proof given by such other person so long as such latter person is operating a motor vehicle for which the owner has given proof as herein provided.
The Secretary of State shall designate the restrictions imposed by this section on the fact of such person’s operator’s or chauffeur’s license. No such license shall be reinstated or any new license issued until otherwise permitted under this Act. As amended by act approved July 16,1953.”

Illinois Rev. Stat., Ch. 95V2, Sec. 58E, 1955.

PROOF OF FINANCIAL RESPONSIBILITY, HOW MADE

Proof of financial responsibility shall mean proof of ability to respond in damages for any liability thereafter incurred resulting from the ownership, maintenance, use of operation of a motor vehicle, for bodily inj ury or to death of any one person in the amount of $10,000.00, and subject to said limit for any one person injured or killed, in the amount of $20,000.00, for bodily injury to or death of two or more persons in any one accident and for damage to property in the amount of $5,000.00, resulting from any one accident. Such proof in said amounts shall be furnished for each motor vehicle registered by every person required to furnish such proof.
Proof of financial responsibility when required under this Act, may be given by the following alternate methods: either by proof that a policy or policies or liability insurance have been obtained and are in full force and effect, or that a bond has been duly executed or that deposit has been made of money or securities all as hereinafter provided.

In addition to the foregoing sections of the Statute, the Drivers License Act of 1953, as amended, provides under #73.10 that the Secretary of State shall administer the provisions of the Act and make and enforce all rules and regulations. Accordingly, the Secretary of State established a form, described as D. L. Form, D.C. C12A, which is in effect, a letter of authorization which permits a person whose license has been revoked, to take a driving examination for the purpose of obtaining a license according to the rules and regulations of the department. This letter cannot be issued until the applicant has complied with the proof of financial responsiblity under Section 58E of the Act.

It does not appear that our Courts have construed these sections of the Statute, and the basic question presented to this Court is whether or not the financial responsibility law is a statutory indemnity act, whether it be in the form of insurance, cash or securities, that must be maintained by the Secretary of State for the benefit of the public.

Claimants argue that our Courts, in construing the “Illinois Truck Act,” which requires compulsory insurance, found that the legislation was enacted for the benefit of the traveling public. This theory we are unable to adopt.

It is not suggested that Glanders was acting in any manner for the Respondent, and it is therefore clear that he alone is responsible for the act causing such injuries. No action on behalf of Respondent was the proximate cause of the injuries upon which this action is based.

This Court has repeatedly held that before the State becomes liable it must be shown that the negligence on the part of the State was the proximate cause of the accident. Clark v. State, 30 Ill.Ct.Cl. 32, and O’Hearn v. State, 30 Ill.Ct.Cl. 564. In fact, Claimants admit that the proximate cause of their injuries was the negligence of John V. Glanders.

Claimants contend that they have been denied a fund from which they could have recovered if the financial responsibility provisions of the statute had been enforced against John V. Glanders. It is clear from the record that John V. Glanders had driven on the highways while his license was revoked and that he was convicted of that charge on March 19,1956.

Respondent had no connection with the presence of John V. Glanders upon the highway at the time of the accident in which he died and in which the injuries complained of were received by Claimants.

The Respondent should not be held responsible for damages for the failure of persons driving upon the highways to comply with the financial responsibilities provision of the Statutes of the State of Illinois. To so hold would make the Respondent an insurer against accidents. It has been repeatedly held by this Court that the Respondent is not an insurer against accidents upon its highways. Grant v. State, 21 Ill.Ct.Cl. 563; Beenes v. State, 21 Ill.Ct.Cl. 83; Gray et al v. State, 21 Ill.Ct.Cl. 521; Joiner v. State, 22 Ill.Ct.Cl. 213; Ohms v. State, 30 Ill.Ct.Cl. 410; and Turkin v. State, 30 Ill.Ct.Cl. 416.

It is true that if John V. Glanders had not been on the highways, this particular accident would not have occurred, but it is our opinion that the State of Illinois should not be held liable because of the wrongful acts of John V. Glanders.

The claims of Clarence G. Kirby, Helen Kirby, Joyce Kirby, and Clarence G. Kirby, Administrator of the estate of Vernon A. Kirby, deceased, are denied.


text:
    (No. 5599
    Billy Eugene Vaughn, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 2, 1979.

    Raymond Lawler, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Poch, J.

The Claimant, Billy Eugene Vaughn, seeks recovery for personal injuries he sustained when the tractor-trailer which he was driving hit an excavation in the highway on Route 13, approximately two miles west of Harrisburg, Illinois, on January 31,1968, at 3:30 a.m.

The Claimant testified he was driving a tractor and semi-trailer westbound on Route 13 near Harrisburg, Illinois, on January 3,1968. The State was making certain repairs to Route 13, commencing at a point approximately two miles west of Harrisburg, where a series of four holes were excavated in the eastbound lane of Route 13, which was a two lane, two way traffic, paved roadway. There were signs, flares and barricades installed. The area in question was relatively flat and straight.

The signs along the roadway indicated that there was work being performed ahead and that there was only one lane for traffic. The signs were repeated between each set of barricades.

After having passed two sets of barricades, he came upon the third set of barricades but instead of being in the eastbound lane to his left, the lighted pot flares and barricades were in his lane immediately ahead of him. Claimant swerved to avoid the barricade and hit the excavation. Claimant’s vehicle went out of control and came to rest off the roadway approximately 490 feet west of the excavation with which he collided. There had been no rain at the time of the accident and there was no impediment to visibility.

The Claimant was injured as the result of this accident and incurred $1,111.58 in medical expenses and was disabled and unable to work for over 30 weeks and suffered fractures of a knee and to a vertebra.

A. D. Stuby had been hired by the State to make sure the barricades were properly placed and that the warning flares remained lit. Prior to the accident, Mr. Stuby had driven past the barricades at approximately 2:15 a.m. on January 3, 1968, and, at that time, all barricades were in position and all flares lit. At the time of the accident, Mr. Stuby testified that he was sitting in his automobile next to the highway approximately 500 feet west of the point of the accident. Mr. Stuby indicated that it was possible to observe the barricades at the point of the accident. He said that it was possible to observe the barricades at the point of the accident from the place he was sitting in his car during day light hours but it was not made clear if this was possible during the night.

Mr. Stuby also stated that a second car had hit the excavation and had fallen into it by the time he had arrived at the scene.

Carl DeWitt, witness called by the Respondent, testified that he was a maintenance engineer on the date in question and that he was responsible with reference to repair work on Route 13, approximately two miles west of Harrisburg. The shoulders were relatively wide and there was a number of driveways. He went to the scene after the accident and found no skid marks. The approximate depth of the excavation in question was 18 inches.

The Claimant alleges that the Respondent breached the duty it owed the Claimant to exercise ordinary care and caution in maintaining the highways in a reasonably safe condition for the motoring public by giving warnings of dangerous and hazardous conditions, by the erection of proper barricades and warning lights in and near the portion under repair, and to further take reasonable precautions that such warning devices remained in place and were in proper working order.

It is well settled that the State is not an insurer against accidents that may occur by reason of the condition of a State highway. Bloom v. State, 22 Ill.Ct.Cl. 582, 584 (1957). However, the State does have the duty to exercise reasonable care in the maintenance and care of its highways so that dangerous conditions likely to injure persons lawfully on the highway shall not exist. Metzler v. State, 27 Ill.Ct.Cl. 207, 209, (1971); Pacific Ins. Co. of New York v. State, 27 Ill.Ct.Cl. 91,94 (1971).

Where repair work is taking place, all the Respondent has to do is use reasonable safeguards in warning the traveling public of the locations where such work is in progress. Ferry v. State, 22 Ill.Ct.Cl. 279,281 (1971).

The placing of warning signs of the conditions of the roadway to be met by a motorist is sufficient to fulfill the obligation of the State to the users of the highway. Grant v. State, 21 Ill.Ct.Cl. 563 (1954); Ohms v. State, 30 Ill.Ct.Cl. 410, 415 (1975).

There was no evidence presented by Claimant that the State was negligent through the conduct of its watchman, A. D. Stuby. He periodically drove through the area in his own auto to see that the barricades were properly placed. Within 90 minutes before the accident, Stuby had driven through the area and found all barricades were properly placed. The Claimant did not present any evidence on how the barricades were moved to the opposite side of the highway.

In order to recover, the Claimant must show that the State had actual or constructive notice of the defect that caused the injury. Weygandt v. State, 22 Ill.Ct.Cl. 478, 485 (1957).

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

There is nothing in the record to show that the State’s watchman was negligent. There was no actual notice to anyone before the Claimant came upon the scene that someone had moved the barricades. Only 75 minutes had elapsed between Stuby’s last visit when all signs and barricades were properly placed, and the time of the accident. There was neither actual notice nor constructive notice to the Respondent that there was a change in the road condition that would lead to an accident. The State had discharged its duty to the public and could not be held here to foresee that criminal or negligent acts of a third person would proximately cause the injuries to the Claimant by moving the barricade to the wrong side of the roadway. In this case, the proximate cause of Claimant’s injuries was the acts of third persons outside the control and foreseeability of the Respondent.

The Claimant has not proved that the Respondent was negligent and that such negligence proximately caused his injuries. Therefore, this claim is hereby denied.


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    (No. 5922
    Alex Sewell, Claimant, v. The Board of Trustees of Southern Illinois University, Respondent.

      Opinion filed January 31, 1979.

    William H. South, Attorney for Claimant.
    William J. Scott, Attorney General; Richard G. Higginson, Special Assistant Attorney General, for Respondent.
   Poch, J.

The Claimant, Alix Sewell, seeks recovery of $5,000.00 in damages for personal injuries sustained on September 24,1969, when the Claimant fell from her wheelchair on the campus of the Respondent, Southern Illinois Univeristy, Carbondale, Illinois.

At a hearing before a Commissioner of this Court the Claimant gave testimony. The parties also entered into a written stipulation concerning certain facts. She contends that the Respondent was negligent in maintaining a grill in the sidewalk which caused her to fall, breaking her leg. The Respondent maintains that the Claimant has failed to prove that the State was negligent in the maintenance of the sidewalk and grill and that there was neither actual nor constructive notice of any defect to the State that there was a danger or hazard. The State claims that the Claimant failed to use ordinary and reasonable care for her own safety by failing to maintain a lookout for her own safety.

The facts, as adduced by testimony and stipulation, are not complicated nor are they contradicted. On September 24,1969, the Claimant, a paraplegic student at Southern Illinois University, attended a physical education class at the Women’s Gymnasium. She entered the building without incident and as she was leaving the same building, one of the front wheels of her wheelchair caught in a drainage grill in the sidewalk causing the Claimant to fall from her wheelchair. The fall caused a fracture to her left leg.

The evidence, by testimony and stipulation, proved by a preponderance of the evidence that the grill in question had been in place for many years. The grill at that time consisted of a series of iron grills each 25 inches long, seven inches wide and three-fourths of an inch thick. Each grill was comprised of 12 cross members three-eights of an inch wide and placed one and one-eighth inches wide by five and one-eighth inches long. Subsequently, in October, 1969, the grill was altered, by the welding or braising of a piece of one-half inch steel rod five and one-eighth inches long in the center of each grill. Later the grill was completely removed and the drain was enclosed.

The parties also stipulated that the Claimant was a regularly enrolled student as Southern Illinois University and due to paralysis of both legs, she was required to use a wheelchair to attend classes, including the physical education class at the Women’s Gymnasium. The only other exits to this building were the north and south exits which were not at ground level.

The Claimant alleges that the fall and resulting injuries were due to the negligence of the University in maintaining the grill where wheelchair students would be exposed to hazard and danger. While the injury to the Claimant is unfortunate, the Claimant’s evidence does not establish that the Respondent was negligent. There was no evidence presented to show that in any way the grill was defective. There was no evidence presented to show that the Respondent had actual or constructive notice of any previous accidents at that location. The uncontradicted evidence shows that the grill was in the same place in the sidewalk prior to the Claimant’s injury. There was no prior accidents where a wheelchair had ever caught the grill.

The Claimant does not dispute that the University had taken steps to make its campus buildings and sidewalks accessible to handicapped and wheelchair students.

The Women’s Gymnasium was used for all women’s physical education courses. It was accessible for wheelchair students for the west door which was the door used by the Claimant. There was no evidence that the University had been notified of any prior accidents at that location. The Claimant knew of no one who had been injured there previously.

Neither the parties nor the Court have found any authority with similar factual circumstances. However, the law is clear that the State is not an insurer against accidents that may occur by reason of the condition of a State Highway. Bloom v. State, 22 Ill.Ct.Cl. 582, 584 (1957). The same rule is applicable to sidewalks maintained by the State. The State has the duty to exercise reasonable care in the maintenance of its highways so that dangerous conditions likely to injure persons lawfully there shall not exist. Metzler v. State, 27 Ill.Ct.Cl. 207, 209 (1971); Pacific Insurance Company of New York v. State, 27 Ill.Ct.Cl. 91, 94. (1971).

In order for the Claimant to recover damages arising from defects in the roadway (or sidewalks), the Claimant must prove the State was negligent and that such negligence was the proximate cause of the injury. Bloom v. State, supra; Manus v. State, 22 Ill.Ct.Cl. 335, 338 (1956); McNary v. State,22 Ill.Ct.Cl. 328, 334 (1956). Thus in order for the Claimant to recover she must prove that the State had actual or constructive notice of the defect that caused the injury. Weygandt v. State, 22 Ill.Ct.Cl. 478, 485 (1957).

There is no proof of actual notice of any defect in the sidewalk or grill. As to constructive notice of a defect each case must be decided on its own facts. Palecki v. State, 27 Ill.Ct.Cl. 108, 110 (1975). In the instant case, the Claimant has not proved that a dangerous condition existed and that the State had knowledge or should have known of any dangerous condition. There had been no prior accidents involving wheelchair students even though the grill had been there for a number of years at the Women’s Gymnasium. Even if the grill could be considered dangerous to wheelchair students that alone does not constitute negligence on the part of the Respondent. As was said in Palmer u. State, 25 Ill.Ct.Cl. 1, 2 (1964):

“The mere fact that a defective condition existed, if, in fact it did exist, is not in and by itself sufficient to constitute an act of negligence on the part of the Respondent.”

The Claimant has not established by any evidence that the University knew or should have known of the allegedly defective grill. Therefore, there is no proof that the Respondent was negligent.

The evidence also shows that the Claimant was contributorily negligent. While she was handicapped, that fact does not relieve her of the duty to exercise ordinary care for her own safety. A disabled or handicapped person, whether blind, deaf, aged or lame, will be held to exercise that degree of care which an ordinarily prudent person with the same condition would have exercised under similar circumstances. See, Restatement(2d), Torts, §283C (1965).

The Claimant had crossed the very same area on her entry to the Women’s Gymnasium. She acknowledged she should exercise caution in taking her wheelchair over any drainage grill in the sidewalk. The Claimant “looked at” the grill upon her entry into the building. She had no trouble in getting across it at that time. There is no evidence that the Claimant exercised ordinary care upon leaving the gymnasium. The Claimant knew of the existence and location of the grill. She offered no testimony to establish by a preponderance of the evidence that she acted with due care for her own safety as she left the building. While it is unfortunate that the Claimant was injured, she did not prove that she was free of contributory negligence.

There is no dispute that the Claimant was injured but she failed to prove that the Respondent was negligent and that any negligence proximately caused her injury. Therefore, her claim must be denied.

The claim of Alix Sewell is denied.


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    (No. 6080
    Rose Marie Dellorto, Administratrix of the Estate of Francis A. Dellorto, Deceased; Rose Marie Dellorto, Administratrix of the Estate of Antionette Dellorto, Deceased, and Rose Marie Dellorto, Individually, Claimants, v. State Of Illinois, Respondent.

      Opinion filed March 16, 1979.

    Phillips E. Howard, Attorney for Claimants.
    William J. Scott, Attorney General; Anita Donato and Richard J. Grossman, Assistant Attorneys General, for Respondent.
   Holderman, J.

This is a claim for two wrongful deaths predicated on the State’s duty to maintain the shoulder of a public highway in a reasonably safe condition and on its duty to warn motorists of a dangerous condition causing an accident. Claimant, as Administratrix of the Estate of Francis A. Dellorto, seeks $5,000.00 from this Court, it being the difference between the $25,000.00 maximum recovery allowable here and the $20,000.00 received from her prior settlement. Also, as Administratrix of the Estate of Antionette Dellorto, she seeks $23,000.00 here being the difference between the $2,000.00 received from her prior settlement and the maximum award allowable by this Court.

The facts are as follows:

On March 8, 1970, at approximately 9:00 p.m., 34 year old Michael McGovern, was driving southbound on Route 45 approximately one mile south of Route 6 at a speed of 45 to 50 m.p.h. The weather was clear as he drove along the highway. McGovern had driven this same road quite frequently the last few months and was well aware that the highway had ample clearance for two passing vehicles. The two-lane highway had been widened to make each lane nine feet wide, McGovern also knew the shoulders along this stretch of highway were muddy and rut-filled.

As McGovern proceeded southbound, he noticed the headlights of a northbound car, driven by Claimants’ intestate Francis A. Dellorto, which was approaching entirely within its proper lane and proceeding at a normal rate of speed. McGovern swerved his car to the right for no justifiable reason, and his car went off onto the shoulder. He braked his car as he sped along the shoulder for a distance of 150-175 feet at a speed of 40-45 m.p.h. He then cut the wheel to the left attempting to move his car back onto the roadway, still at a speed of40-45 m.p.h. However, he lost control of the car when the wheel struck the edge of the concrete pavement. Then his car “jumped” into the northbound lane and collided with the oncoming car driven by Francis Dellorto. Mr. Dellorto was accompanied by his wife, Rose Marie riding in the front seat, and his nine-year old daughter, Antionette, riding in the back seat. Both Francis and Antionette died as a result of their injuries. McGovern was issued a traffic citation for improper lane usage as a result of the accident.

The shoulder, where McGovern ran off the road, was unpaved and muddy due to the spring thaw. Ruts on the shoulder caused a depression between the pavement and shoulder.

Claimants filed suit against McGovern in the Circuit Court. They settled and executed covenants not to sue for which Claimant received $20,000.00 as Administratrix of the estate of Francis Dellorto and $2,000.00 as Administratrix of the estate of Antoinette Dellorto. No explanation was made why settlement was made for those amounts as Claimant argues here that the damages suffered were in excess of those amounts. With this we agree. The State contends here that settling out the claims on covenants not to sue is not meeting the requirement that all other remedies must be exhausted before a claim in this Court is allowed. We do not believe it necessary to actually process claims through trial. However, on the other hand, what is the justification for Claimant accepting $2,000.00 in settlement of the claim for Antoinette and seeking $23,000.00 before this Court?

The State’s argument denying liability is mainly two fold:

First, it contends the State was not negligent in the maintenance of the shoulder of the highway.

Secondly, it contends that McGovern was negligent in going off onto the shoulder and in the manner in which he attempted to get back on the highway; and, that such negligence was the sole proximate cause of the collision resulting in the deaths of Claimants’ intestates.

There is no issue of contributory negligence. All agreed that Claimants’ intestate was exercising due care.

That McGovern was negligent in going off onto the shoulder and in the manner in which he attempted to get back on is clear from the evidence. Was his negligence the sole proximate cause of the injuries or was the condition of the shoulder also a concurring proximate cause? This is the primary issue in this case.

We hold that McGovern’s negligence was the sole proximate cause of the accident and the resulting injuries.

The theory the Claimant relies on is that the State owed a duty of due care to maintain the shoulder and that by the breach of that duty, harm was foreseeable to the Claimant’s decedent who was driving on the roadway. However, to find the State liable, the Claimant has the burden to show the existence of a duty owed to the Claimant, based on reasonable forseeability, a breach of that duty, and an injury proximately resulting from that breach. The Illinois Supreme Court in Cunis v. Brennan 56 Ill. 2d 372, 308 N.E.2d 617 (1974) made clear that foreseeability of harm alone is not enough to justify liability. In Cunis, an automobile passenger sued the Village of LaGrange for his injuries occurring when he was thrown 30 feet after a collision with a third person’s automobile and landed on a parkway where his leg was impaled upon a drain pipe. The plaintiff argued that the defendant Village was under a duty to maintain its parkways in a safe condition and that to escape liability, the Village would have to show it could not have foreseen the type of injury the plaintiff suffered. In denying that a duty existed, the Court stated foreseeability alone is an inadequate test to determine legal duty. The correct test is whether the injury was reasonably foreseeable. The Court concluded that the remote possibility of the occurrence did not give rise to a legal duty on the part of the Village to the plaintiff to guard against his injury.

The cases cited by Claimant involving negligent shoulder maintenance concern drivers who came into contact with the defect and were injured. Clearly, the State would owe McGovern a duty to maintain the shoulder to guard against injury to him, provided his use of the shoulder was authorized and performed with care. However, that does not mean that the State’s duty is also transferred to Claimants’ intestates who were traveling in the opposite lane and who did not come into contact with the alleged defect. To find a duty exists here would result in liability for every conceivable type of injury that occurs when a driver comes into contact with a defective shoulder.

In the case of Hill v. State the Claimant charged the State with negligent shoulder maintenance in allowing the existence of a six-inch drop-off between the paved area and the unpaved shoulder which caused her injury when she drove onto the unpaved shoulder to avoid an oncoming truck, subsequently lost control, and collided with the truck in the opposite lane. The Court held that the negligence of the Claimant was the proximate cause of her injuries as she was in control of her car when she drove onto the shoulder and only lost control of her car when she tried to drive out of the ruts — although she could have brought her car to a stop on the shoulder instead of attempting to drive back on the highway without significantly reducing her speed. (Citing Alsip v. State) This case is relevant to the issue of negligence of McGovern.

In the case at bar, McGovern traveled for a distance of 150-175 feet and reduced his speed a mere five m.p.h. He lost control when he got hung up in the mud and in the ruts while attempting to move back onto the highway. He could have slowed his vehicle to a stop instead of making a sharp turn back onto the pavement. But for his lack of due care in failing to reduce speed significantly or to stop completely, his vehicle would not have careened into the northbound lane. McGovern’s conduct could not be reasonably anticipated by the State. Therefore, the negligence of McGovern, not the condition of the shoulder, is the sole proximate cause of the accident.

The Hill case is in harmony with other cases holding that the driver’s negligence was the proximate cause of an accident occasioned by the driver encountering a defect on the shoulder. See also Lee v. State of Illinois, 25 Ill.Ct.Cl. 29 (1964); Link v. State of Illinois, 24 Ill.Ct.Cl. 69 (1961).

Even assuming the State negligently maintained the shoulder, such negligence merely created a condition and was not a concurrent or proximate cause of the accident. In Storen v. City of Chicago, 373, Ill. 530, 27 N.E.2d 53 (1940), the Court held that the maintenance of a depressed curb did not constitute a concurrent cause of plaintiffs injury when a third party struck a parked car which was propelled along the street curb until it reached an opening in the curb at which point it careened onto the parkway injuring plaintiff. The Court stated that even if the maintenance of the depressed curb constituted negligence, such negligence was not an act concurrent with the negligence of the driver who struck the parked car. The Court held that the depressed curb did nothing more than furnish a condition and that the proximate cause of the accident was the negligence of the driver who struck the parked car. The Court stated, at page 55 of 27 N.E.2d:

“If, however, a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury.”

Claimant relies on Neering v. Illinois Central Railroad., 383 Ill. 366 (1943) which stated the following test to determine proximate cause:

1) Whether the intervention of the subsequent independent act was probable or foreseeable by the first wrongdoer and,
2) Whether the injury is the natural and probable result of the negligent act or omission and is of such a character that an ordinarily prudent person ought to have foreseen the injury as likely to occur as a result of the negligence.

The first part of the test focuses on the foreseeability of the third party’s intervention, that is, whether McGovern’s act was probable or foreseeable by the State. The second part of the test focuses on the relationship between the injury and the negligent act, that is, whether the injury to Dellorto followed as a natural and probable result from the unstabilized shoulder.

The Claimant also cites the case of Welch v. State of Illinois, 25 Ill.Ct.Cl. 270 (1966). There we awarded damages for the death of Claimant’s decedent that resulted when he pulled onto the road shoulder to avoid hitting an oncoming car, but was killed for his efforts, due to a large hole seven feet by three feet in the shoulder that caused his vehicle to go out of control. We stated that: “Since a road shoulder is both necessary and covenient for vehicular traffic, ... it follows that reasonable care by the State of such shoulder is required.” (Page 276) It is not contributory negligence, the Court continued, to pull off the pavement onto the shoulder in light of the fact that avoiding an apparent accident is an intended purpose for which road shoulders are to be used. (Page 277)

In a subsequent case, we affirmed the State’s duty to maintain the road shoulder in a reasonably safe condition but refused to award damages where no evidence was introduced showing an emergency or other legitimate reason for driving the vehicle involved on the shoulder of the road. Berry v. State of Illinois, 26 Ill.Ct.Cl. 377 (1968). We there considered the tractor driver’s failure to drive “upon the right half of the roadway” in violation of Ill. Rev. Stat., Ch. 95V2, Para. 151 (2) prima facie evidence of negligence and refused an award on the basis of contributory negligence. The Welch case was distinguished by the Court in Berry on the grounds that the truck driver in Welch was using the shoulder for its intended purpose of avoiding an accident, whereas in Berry, the tractor trailer driver had no legitimate reason to be driving along the shoulder. The Claimant’s argue that “this case, like some of the earlier road shoulder cases in which the Court of Claims refused damage awards, Sommer v. State of Illinois, 21 Ill.Ct.Cl. 259 (1952), Howell v. State of Illinois, 23 Ill.Ct.Cl. 141, (1959) Lee v. State of Illinois 25 Ill.Ct.Cl. 29 (1964), made no attempt to limit the State’s duty to maintain road shoulders in a reasonably safe condition, but turned on Claimant’s failure to sustain the burden of proving freedom from contributory negligence.”

It is the law in Illinois that while the State is not an insurer of every accident that occurs on its public highways, it does have the duty to exercise reasonable care in the maintenance of its roadways in order that dangerous and defective conditions likely to injure persons lawfully on the highways, shall not exist.

But the crux of the case is this: While the State may have furnished a dangerous condition, the intervening negligence of McGovern in going off the highway onto the shoulder for no justifiable reason, and the negligent manner in which he tried to get back on, was the sole proximate cause of the accident. The State’s negligence, if any, was not a proximate cause concurrent with McGovern’s negligence. This holding is supported by the cases herein cited, and, in the face of precedent, we must deny any award.

We hold for Respondent.


text:
    (No. 6118
    James V. Hunt, Jr., Administratrix of the Estate of Shahram Dehnad, Deceased, and Administratrix of the Estate of Kamyar Arjomand, Deceased, and Hapez Haffezzedeh, Claimant, v. State of Illinois, Respondent.

      Order filed March 9, 1979.

   Holderman, J.

This matter is before this Court on a motion to dismiss filed herein by the Respondent, State of Illinois.

The facts are as follows: The complaint was for wrongful death arising out of an accident occurring April 20,1970. It appears in the record that a complaint arising out of the same occurrence was filed in the Circuit Court of McLean County against Robert Blasius, Edward J ermenc, and Fosco Fabrication, a corporation. Robert Blasius was the State engineer in charge of highway work for a certain area. Defendant, Edward Jermenc, was the assistant traffic engineer for the same district area.

On February 29,1972, the Circuit Court of McLean County entered an order dismissing the complaint against the two State employees, finding that they were immune from suit “by reason of their status as public officials, said immunity of governmental officials arising as a result of their requirement to exercise discretion and judgment rather than performing ministerial duties.” No appeal was ever taken from this order.

Respondent now contends this bars any action against the State since the order is res adjudicata and the State cannot be liable if the employees sued are immune from liability. Citing Flaim v. State, 30 Ill.Ct.Cl. 635 (1975) where this Court said:

“Since public officials are immune from liability under Illinois law for negligence in the performance of discretionary duties, their principals, the State, is similarly immune under the doctrine of Respondent superior.”

We have no choice under the record of this case but to allow the motion to dismiss. The order of the McLean Circuit Court is res adjudicata.

Motion to dismiss is hereby granted and this cause is dismissed.