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

text:
    (No. 89-CC-2015
    Edward A. Scott, Claimant, v. The State of Illinois, Respondent.

      Order filed November 28, 1989.

      Order on petition for rehearing filed December 21, 1994.

    Edward A. Scott, pro se, for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

Claimant, Edward Scott, brought this claim seeking payment in the amount of $3,000 for legal services rendered to the Medical Center Commission during the period of time between July 1, 1986, through August 29, 1986. He alleged that he made many demands for payment but has never been paid.

The parties filed a joint stipulation wherein they agreed to the following:

(1) Scott performed legal services for the Commission in July and August of 1986 as a special assistant Attorney General.

(2) Scott presented bills for this work to the Commission but these have not been paid.

(3) The amount of the bills are reasonable and fair; and conform to the usual and ordinary charges in the State of Illinois for the work done by Scott.

(4) Scott is justly entitled to the amount claimed for the work done for the Commission.

The claim is now before the Court for approval of the stipulation.

This Court is not bound by such stipulations, and we are unable to approve the one at bar for two reasons. First, an issue involving jurisdiction exists. Although neither party addressed it, an issue involving jurisdiction may be raised at any time and by the Court. The Medical Center Commission was created by the Medical Center District Act. (70 ILCS 915/0.01 et seq.) In relevant part the statute (section 2) provides:

“There is hereby created a body politic and corporate under the corporate name of Medical Center Commission, hereinafter called the Commission, [and by that name it] o o o
“• “ * shall have perpetual succession, power to contract and be contracted with, to sue and be sued except in actions sounding in tort, to plead and be impleaded, to have and use a common seal, and to alter the same at pleasure. All actions sounding in tort against the Commission shall be prosecuted in the Court of Claims. “ 0 ®” (Emphasis added.) 70 ILCS 915/2.

In his complaint at paragraph 2, Claimant alleged that the claim is based on contract. The jurisdictional issue is whether a contract claim against the Medical Center Commission may be brought in the Court of Claims.

Our research did not reveal any cases in the Court of Claims expressly holding one way or the other. The Illinois Supreme Court in Williams v. Medical Center Comm. (1975), 60 Ill. 2d 389; 328 N.E.2d 1, did discuss the tort immunity provision of the statute but did not comment on whether contract cases may be brought in the Court of Claims. In its treatment of the issue, the supreme court cited section 4 of Article XIII of the Constitution of 1970 which states: "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.” The General Assembly did expressly single out tort claims in section 2 of the Act, stating that they must be brought in the Court of Claims. The General Assembly could have, but did not, provide that any other types of lawsuits must be brought in the Court of Claims. The argument could be made that, by including one but not any others, the General Assembly did not intend to grant the Medical Center Commission any other immunity. An examination of the Claimants billings attached to his complaint does indicate that the Medical Center Commission has been made a defendant in other courts.

However, the departmental report (which was compiled by the Medical Center Commission and offered as prima facie evidence of the facts contained therein pursuant to section 790.140 of the Court of Claims Regulations (74 Ill. Adm. Code 790.140) indicates that the Medical Center Commission would have paid the Claimant with funds appropriated by the legislature for fiscal year 1987. Such funds have lapsed and there is no question that this Court has jurisdiction to hear and decide claims for lapsed appropriations.

Assuming (without deciding) that this Court has jurisdiction over the claim, we would be constrained to deny it anyway. The departmental report indicates that the funds with which the claim could have been paid were appropriated in line item appropriation number 839-5701-1200-0000 for contractual services. The report further indicates that the Medical Center Commission spent this appropriation down to virtually nothing. Although the report indicates that funds were available for transfer under section 13.2 of the State Finance Act (the two percent transfer statute, 30 ILCS 105/13.2), from line item appropriation number 839-571-01-6-600-0000 for Acquisition of Land, said line item does not appear to be transferable under that statute. Thus even if we were to assume jurisdiction over the claim, we would have to deny it due to lack of sufficient lapsed appropriation.

We note that the Medical Center Commission, in response to question number 7 in the departmental report which asked why the claim was still unpaid, stated “Claim was disputed but is now resolved. Now the MCC is merely seeking funds to pay it.” For this Court to provide those funds by way of an award would be tantamount to making an appropriation. We find that the parties, or either of them, should seek the funding for the settlement from the legislature. According to the Constitution, not only is this Courts jurisdiction conditioned on what the legislature provides, appropriation of funds is also the prerogative of the legislature. For purposes of possible consideration of this matter by the legislature, we find that the record indicates that the Claimant did provide the services at a price which was fair and reasonable, if not low, for attorney time. We further find that the Claimant did not file a copy of his contract with his complaint as required by section 790.50(c) of the Court of Claims Regulations. (74 Ill. Adm. Code 790.50(c).) From the record before us, a written contract for the services would have been required under section 9.01 of the Illinois Purchasing Act (30 ILCS 505/9.01), and the failure to comply with said statutory requirement would render any contract void under section 10 of the Illinois Purchasing Act.

Accordingly, it is hereby ordered that this claim be, and hereby is, dismissed.

ORDER

Sommer, C.J.

This cause coming to be heard on the petition for rehearing filed by the Claimant, due notice having been given, and this Court being fully advised, finds: .

(1) That the departmental report indicates that the Claimant would have been paid from the F.Y. 1987 contractual services appropriation.
(2) That $4.87 remained unspent in the contractual services appropriation for F.Y. 1987.
(3) That funds remaining in the acquisition of land appropriation for F.Y. 1987 are not transferable to the contractual services appropriation. 30 ILCS 105/132.
(4) That this Court may not grant an award for services performed where no funds remain in the relevant appropriation line, or can be transferred thereto. Graham, O’Shea, & Hyde v. State (1983), 44 Ill. Ct. Cl. 175.
(5) That no contract for professional services was filed with the Comptroller as required by law. 30 ILCS 505/9.01.
(6) That for the reasons cited above this Court cannot pay this claim.
(7) That the Claimant’s remedy is presentation to the General Assembly.
(8) That this Court’s previous denial of this claim was a correct application of the facts to the law.

It is therefore ordered that the petitioner’s motion for reconsideration is denied.


source: Caselaw Access Project

author: Sommer, C.J.

license: Public Domain

text:
    (No. 89-CC-2270
    Commercial Union Insurance Co. and Jack Kelly, Claimants, v. The State of Illinois, Respondent.

      Opinion filed April 14, 1995.

    Saul R. Wexler and Paul M. Sengpiehl, for Claimant.
    Jim Ryan, Attorney General (Anne Loevy and Kenneth Levinson, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This claim is brought on behalf of Jack Kelly and Commercial Union Insurance Company, as subrogee, for damages sustained to Mr. Kellys automobile on January 25, 1987. At approximately 3:00 p.m. on January 25, 1987, the Claimant was driving his Ford Taurus southbound on Route 53 in the vicinity of Palatine, Illinois. Mr. Kelly was driving near the overpass over Palatine Road in the far left lane. His vehicles speed was approximately 55 miles per hour, the posted speed limit. As he drove, a piece of pavement came up from the road in front of him and because of a car on his right and a barrier on his left, he had no choice but to drive over the chunk of pavement. He testified that the car in front of him jarred the pavement loose and it popped up after that car passed over it. When his vehicle struck the concrete slab, the slab disintegrated but not before it destroyed the undercarriage of his vehicle. Mr. Kelly described that concrete slab as being approximately 15 inches wide, 8 to 10 inches long, and 4 to 6 inches deep. Mr. Kelly was the owner of the vehicle in question and his insurance company was Commercial Union Insurance. The vehicle was totally destroyed according to the appraisal done by that company. Mr. Kelly claimed to have paid approximately $20,000 for the Ford Taurus and much evidence was adduced at the hearing regarding the value of the vehicle.

It is well established that “the State of Illinois is not an insurer against all accidents which may occur by reason of the condition of its highways.” Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 226, citing Gray v. State (1954), 21 Ill. Ct. Cl. 521.

The State owes a duty to all users of its highways to maintain its highways in a reasonably safe condition. (Scroggins at 227, citing Berry v. State (1968), 26 Ill. Ct. Cl. 377.) “The States duty is to maintain highways in ‘reasonably safe condition’ by using reasonable diligence in such maintenance.” (Scroggins at 227, citing Wing v. State (1977), 31 Ill. Ct. Cl. 473, 476.) The Claimant must prove by a preponderance of the evidence that the State had actual or constructive notice of the defect causing the accident in order to recover. Scroggins at 227.

It can be concluded from the testimony that the piece of concrete that the Claimant’s vehicle struck was of a significant size. However, that by itself does not prove that prior to the accident there existed a defect at the accident location which the State knew or should have known was a hazardous defect. The State’s repair crews patrolled the area each day looking for defects. None was reported at the site of the accident, by the repair crews, police, or the public.

In this case there is no proof that the State had actual notice of the defect which eventually caused the damage in this case; and, therefore, the Claimant must rely upon constructive notice. The test to establish constructive notice is “where a condition by its evident nature, duration and potential for harm should necessarily have come to the attention of the State, so that the State should have made repairs.” (Scroggins at 228.) While it is apparent from Mr. Kellys testimony and demeanor that he is essentially accurate about the events of that day, there is no evidence to suggest that there was constructive notice on behalf of the State regarding this location and defect.

This claim is very similar to Scroggins. In that claim, a piece of concrete tipped up when the Claimant ran over it exposing a piece of wire that punctured the Claimants tire thereby causing an accident. In Scroggins, this Court ruled a highway defect may have caused the accident, but there were no facts "to place the State on constructive notice that a defect existed. In the present claim the Claimant testified that the piece of concrete was level with the rest of the road until the moment that the vehicle ahead of him ran over it. Though cracks existed in the pavement, we find that these cracks alone were not a condition of such evident nature and potential for harm so as to impute to the State constructive notice of a hazardous defect.

It is therefore ordered that this claim is denied.


author: Rath, Comm. Jann, J.

text:
    (No. 89-CC-2280
    Deborah D. Harris, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 23, 1993.

      Order filed December 9, 1994.

    Carolyn B. Smoot, for Claimant.

      Roland W. Burris, Attorney General (Wendell Derek Hayes, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Rath, Comm.

Upon reconsideration of order to compel production, the issue now before the Commissioner had its origins in Claimants motion to compel answers to Claimants interrogatories.

After a teleconference call pursuant to the stipulation of the attorneys for the parties on Claimants “Motion to Compel,” this Commissioner ordered the parties through their counsel to submit authorities on the questions presented.

The narrow issue arises under section 11 — 412 of the Illinois Vehicle Code (625 ILCS 5/11 — 412, formerly Ill. Rev. Stat. (1991) 95Vz, 11 — 412.) That statute, a copy of which is attached hereto as Exhibit “A,” pertains to the confidentiality of motor vehicle accident reports, and requires generally that the reports are treated as confidential. Claimant seeks production of reports containing allegations that lights malfunctioned at a particular intersection where the Claimant had an accident, based on Claimants claim of malfunctioning lights, so that, presumably, Claimant can obtain information, that the State had notice that the lights at this particular intersection did not work or function properly, and that the State had notice of that fact.

Accordingly, Respondent submitted authorities by quoting portions of the statute and setting forth, inaccurately, an isolated quotation from a 1963 opinion of the Illinois Supreme Court in a criminal case. (People v. Turner (1963), 29 Ill. 2d 379, 194 N.E.2d 349, 352.) Correctly set forth, Respondents “authority” was as follows:

* ° It is settled that the trial court may, in proper cases, order the production of such reports, but it is equally well settled that the use of such documents is restricted to impeachment. (People v. Wolff, 19 Ill. 2d 318, 323, 167 N.E.2d 197.)”

The case from which the preceding quote was extracted dealt with a convicts claim of error on appeal, that the trial court should have ordered a police officer to produce a copy of the police officers report for examination by defense counsel. The opinion reveals that the criminal prosecutor objected to production of the report on the ground that the report could be used for impeachment only, but that the convicts attorney had stated that he did not intend to impeach the officer. The prosecutors objection to the production of the report was sustained by the trial court and affirmed on appeal by the Illinois Supreme Court. The supreme court held that since the convicts attorney had disclaimed any intent to impeach the witness, the trial court did not err in refusing to require the police to produce the report.

The case cited by the Illinois Supreme Court in the above quotation was a 1960 criminal case (People v. Wolff (1960), 19 Ill. 2d 318, 126 N.E.2d 197) which contained an exhaustive discussion of the state of the law in respect to the right of the criminally accused to examine documents held by the prosecution. In the Wolff case, supra, the convict appealed a decision of the trial court which denied him the right to examine certain documents allegedly possessed by the prosecution. The Illinois Supreme Court held that the defendant was, indeed, prevented from any effort to lay a foundation pursuant to which he could demand the production of documents consisting of witness statements. The supreme court held that the trial court should have permitted defense counsel to lay a foundation for the production of documents, but further held that on the record as a whole, reversal of the judgment against the convict was not required.

The Commissioner is hard pressed to understand the applicability of any of the authorities originally submitted by Respondent to the issues presented in the case at bar.

Claimants arguments and authorities filed Januaxy 27, 1992, contain no citation of authority whatsoever, other than quoted excerpts from statutory provisions combined with Claimants “interpretation” of the statutory provisions as they may relate to the issues in the case at bar. Claimant argued that under section 11 — 412 the confidentiality provisions are to protect the individuals submitting the reports and not Respondents Department of Transportation. Claimant pleads that Claimant must know the identity of persons submitting the reports in respect to malfunctioning lights, and that Respondent is shielding itself behind the statute not to protect the confidentiality of the person submitting the reports, but to escape Claimants allegations of the State’s liability to Claimant because of the malfunctioning traffic lights. Claimant submits no authority for the proposition that reports of malfunctioning lights at other times and on other occasions constitutes admissible evidence tending to support the testimony of Claimant that the lights malfunctioned on the occasion of Claimants injuries.

Thus, armed with the weighty authorities and arguments submitted by Respondent and Claimant, the Commissioner concluded that under the provisions of section 11 — 412, it did not appear to be a legislative purpose to protect Respondent against disclosure of facts and circumstances tending to show Respondents prior notice of defective or malfunctioning traffic lights. The Commissioner directed the preparation of an order on the Commissioners ruling and advised counsel that the Commissioner would hold the order in order to allow Respondent to voice any objections to the form of the order. The Commissioner received the proposed order from Claimant on November 4, 1992, and, there being no objection by Respondents attorney, the order on motion to compel was entered 11-16-92 by the Commissioner requiring that Respondent permit discovery of pertinent reports and records pertaining to allegations of, or reports concerning the operation or malfunctioning of lights at the intersection involved in this case over a period of eight years prior to the date of the accident.

Approximately seven months later, Respondent filed a "Motion for Reconsideration of Order,” complaining that Illinois Supreme Court Rule 201(b)(2) was applicable to this issue, and that the First District Appellate Court case of Arnold v. Thurston, handed down December 30, 1992, supports Respondents argument that the reports in question are privileged against disclosure, citing no authority other than Arnold v. Thurston (1992), 240 Ill. App. 3d 570, 608 N.E.2d 418, 181 Ill. Dec. 345.

Claimant has responded to Respondents motion for reconsideration by filing Claimants “Memorandum of Law in Support of Response to Motion for Reconsideration of Order.” Once again, Claimant has not burdened the Commissioner with any citation of authority other than Claimants interpretation of the case cited and relied upon by Respondent, Arnold v. Thurston, supra.

Since the decision in Arnold v. Thurston came down after the Commissioners original order in this case, an examination of that opinion is in order. In Arnold, Justice Cerda identified the issue as being an appeal by the Illinois Department of Transportation and their chief counsel from a contempt order entered by a Chicago trial court against IDOT for refusal to comply with a production order.

The case apparently arose out of a traffic accident. The plaintiff had issued a subpoena to IDOT for a specific IDOT report relating to a specific accident involving the plaintiff and one of the defendants (Maria Thurston). IDOT refused to produce the report on the ground that they were confidential under sections 11 — 412 and 11— 408 of the Illinois Vehicle Code. Upon hearing, the plaintiff argued that he desired the report for impeachment purposes and the trial court ordered IDOT to comply with the subpoena, including the documents and reports claimed by IDOT to be confidential or privileged.

Justice Cerda quoted section 11 — 412 of the Illinois Vehicle Code and recited IDOTs arguments that the reports could not be used as evidence in any trial arising out of the motor vehicle accident, and that the Legislature intended that the reports not be used for any purpose. Justice Cerda distinguished the case of Cox v. Yellow Cab (1973), 16 Ill. App. 3d 665, 306 N.E.2d 738 apparently on the basis of the fact that the report in the Cox case was not shown to have been forwarded to the Illinois Division of Highways (predecessor to IDOT), and that accordingly the report should have been produced. Unlike the Cox case, supra, in Arnold v. Thurston there was no question that the accident report in question was filed with IDOT.

The court in Arnold v. Thurston concluded as follows:

“Section 11 — 412 provides that the required accident report is confidential and cannot be used as evidence. There are two limited exceptions to the confidentiality provision for the cases of disclosing the identity of a person involved in a motor vehicle accident and disclosing the identity of any insurance carrier. In contrast, IDOT reports are stated to be privileged and not obtainable. Although the provision on the required accident report does not explicitly state that the documents either are not obtainable or are privileged, the intent appears to be that the documents are confidential and are not to be disclosed.
“Even if the statute were not construed in this manner, Supreme Court Rule 201(b)(2) would apply to prevent the reports discovery because the statute provides that the report may not be used as evidence at a trial. The rule, which neither party discusses, provides that ‘all matters that are privileged against disclosure on the trial 0 * ° are privileged against disclosure through any discovery procedure.’ 134 Ill. 2d R 201(b)(2).” Arnold v. Thurston, 608 N.E.2d 418 at 420, 421.

Accordingly, the contempt order against IDOT and its counsel was reversed and the order of the trial court compelling IDOT to comply with the plaintiff’s subpoena was reversed.

Unlike Arnold v. Thurston, supra, Claimant in the case at bar does not seek the reports in question for impeachment purposes; but instead, Claimant seeks the reports in Claimant’s efforts to develop information to the effect that Respondent knew, or should have known, that the lights at the intersection in question in this case were previously malfunctioning.

At this point, it should be noted that in Respondent’s original argument and authorities submitted during December of 1991, Respondent states as follows:

“It is the Respondent’s position that pursuant to Illinois Revised Statutes and case law, turning over the reports is in breach on (sic) confidentiality of those documents, but would state further that the law does provide disclosure of the identity of the parties to the accidents.”

It seems that Respondent retreats from the generosity expressed in the above quote in “Respondents Motion for Reconsideration of Order” where Respondent argues, without, of course, any citation of authority as follows:

° the names and addresses of parties alleging malfunction of the traffic light which counsel seeks is (sic) irrelevant and would not lead to the discovery of relevant evidence. The condition of the traffic light at oilier times does not establish that the alleged condition existed at the time of the act complained of in the case at bar."

Claimant does not seek the reports or the identities and locations of persons making the reports to necessarily prove that the lights malfunctioned on the occasion of Claimant’s injuries; instead, it appears that Claimant seeks the reports and identities principally for proof of prior knowledge on the part of Respondent.

On the basis of Arnold v. Thurston, supra, and Respondent’s admission that Claimant is entitled to disclosure of the identity of parties to accidents wherein reports of malfunctioning lights were made, it will be the order of the Commissioner on reconsideration that such motion should be allowed in part and denied in part. That is to say, that Respondent will not be compelled to turn over the reports, but will be compelled to provide plaintiff with the names and addresses of witnesses from such reports where such reports or documents contain information pertaining to a claim or report of any person that the lights at the intersection in question malfunctioned.

It is therefore ordered that the State of Illinois by and through the Attorney General’s office be, and is hereby, compelled to provide to Claimant, within 21 days from the date hereof, the names and addresses of all witnesses to accidents or conditions at the intersection in question occurring within the period set forth in the Commissioner’s order of 11-16-92, where such reports, statements or documents contain any information relating to a malfunction of the traffic lights at the subject intersection.

ORDER

Jann, J.

This cause comes before this Court on the parties’ joint stipulation for settlement which states:

(1) This claim arose from a traffic accident that occurred on or about January 31, 1987, at Route 13 and Carterville Road in Williamson County, Illinois.

(2) The parties have investigated this claim, have knowledge of the facts and applicable law to the claim, and are desirous of settling this claim in the interest of peace and economy.

(3) Roth parties agree that an award of $1,200 is both fair and reasonable.

(4) Claimant agrees to accept, and Respondent agrees to pay Claimant $1,200 in full and final satisfaction of this claim and any other claims against Respondent arising from the events which gave rise to this claim.

(5) The parties hereby agree to waive hearing, the taking of evidence, and the submission of briefs.

The Court is not bound by such an agreement, but it is also not desirous of creating or prolonging a controversy between parties who wish to settle and end their dispute. Where, as in the instant claim, the agreement appears to have been entered into with full knowledge of the facts and law, and is for a just and reasonable amount, this Court has no reason to question or deny the suggested award.

It is hereby ordered that the Claimant be awarded $1,200 in full and final satisfaction of this claim.


author: Patchett, J.

text:
    (No. 89-CC-2935
    Richard Shields, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1994.

    Wiseman, Shaikewitz, McGivern, Wahl, Flavin, Hesi, Barylske & Mormino (Samuel A. Mormino, Jr., of counsel), for Claimant.
    Hinshaw & Culbertson (Gary R. Lietz, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim was filed as a result of a slip and fall accident at the University of Illinois Assembly Hall. The fall occurred on March 19, 1988, while the Claimant, Richard Shields, was visiting his son, Jeffeiy Shields. The Claimant and his son were attending the Illinois high school basketball championship at the Assembly Hall.

The Claimant did not leave his seat during the final two games of the tournament. His son left his seat during half time of the championship game to use the facilities. While returning to his seat, the Claimants son did not tell him of any spills or adverse conditions on the stairs.

They stayed and watched the championship game until the final two or three minutes. In order to beat the traffic out of the parking lot, they left while the game was still in progress. They exited from their aisle and went down the stairs leading from section C, which is the top section of the Assembly Hall. The steps in section C are steep, and there are handrails on both sides of the aisle for the first seven steps.

As Mr. Shields neared the bottom of the steps, which would be near the first seven steps with the railing, he slipped and fell as a result of an apparent soda spill on the third or fourth step. He felt extreme pain in his left knee. He testified that he was not looking down at the floor as he descended the stairs, but was watching the game. He also testified that he was not using the handrails located on either side of the steps. He described the substance that he slipped on as being gummy and sticky.

Following the accident, Mr. Shields did not seek immediate medical treatment. Evidently he did not report the injury to any university staff. He returned to his son s dwelling, applied ice, and elevated his knee. He drove home the next day to Alton, Illinois. Since he continued to be in pain, he sought medical advice from his physician, Dr. Randall Rogalsky. Mr. Shields had a history of knee problems. At the time of his fall, he had a knee prosthetic. He essentially had an artificial knee. He was totally and permanently disabled due to previous injuries.

Dr. Rogalsky performed a revision of the knee prosthesis after the accident in question. Dr. Rogalsky testified that it was his opinion that the knee replacement became loose in the fall, requiring the revision. Dr. Rogalsky continued to care for the Claimant after the surgery until October 1988.

Mr. Shields continued to have pain after the surgery and eventually consulted another physician, Dr. Edward Lansche, an orthopaedic surgeon. Dr. Lansche testified that a total left knee replacement was necessitated by difficulties caused by the replaced travel component that was performed by Dr. Rogalsky. Following the total replacement performed by Dr. Lansche, the Claimant continued to have problems with his knee. This required additional surgery and physical therapy. At the time of the trial of this case before a Commissioner of this Court on September 9, 1993, Mr. Shields testified that he was continuing to have problems walking and with physical activities such as standing, squatting, and bending. He had constant pain. The medical bills totaled $44,038.83.

Mr. Shields wrote several letters to the university requesting compensation for the injury. He told them that he was unable to work because of the injury. He indicated that one of the sources of damages was lost employment compensation, despite the fact that he had been unemployed since 1984.

Fred Rhodes, operations manager of Assembly Hall, detailed three specific procedures used in cleaning and maintaining the facilities at Assembly Hall during events such as the high school basketball tournament. There was a specific procedure regarding spills. The spills included soda and popcorn. The spills would be reported by an usher calling in on a two-way radio. There would be at least 30 to 40 radios in the hands of ushers for major basketball events. The reports would be sent to room 101, which is the main office of Assembly Hall. That office would then contact Mr. Rhodes, and he would dispatch one of the two roving members of the spill crew to the site.

Between sessions of the tournament, Mr. Rhodes’ staff went through the building utilizing concession workers, extra-help workers, and ushers to clean the facilities. This procedure would have occurred before the first of the last two basketball games played on the evening of the accident. Each individual was assigned a row and a section. That person walked the entire circumference of the section and picked up loose debris. At the end of the event, Mr. Rhodes checks with room 101 to compare their list with his list. This is an attempt to make sure that all spills were cleaned up.

The Claimant based his theory of recovery on negligence. He maintains that the University was negligent in its failure to properly maintain the facilities by failing to clean up the spill. He alleges that this caused him to fall and was the proximate cause of injuries to his knee.

A landowner has an obligation to use reasonable care and caution to keep the premises reasonably safe. A landowner is not required to give warning or precautions for dangers that are self-evident. (Mullen v. Board of Trustees of the University of Illinois (1985), 38 Ill. Ct. Cl. 44.) Mr. Shields testified that the spill covered the surface of the third and fourth steps of section C. Mr. Shields was responsible to see and observe any open and obvious conditions. Given his description of the size of the spill, we conclude that it was an open and obvious condition. In addition, Mr. Shields was not looking down, and he was not using the handrails which had been provided. Surely Mr. Shields was aware of his own physical limitations due to his artificial knee. In light of these limitations, we conclude that he did not use reasonable precautions in descending the stairs.

Mr. Shields has cited to the court Ward v. K-Mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223. He uses this as the basis to assert that the university had a duty to anticipate that invitees would fail to appreciate the presence of substances on stairways when they are distracted or preoccupied with events taking place elsewhere. The Respondent has replied that the spectators are expected to exercise reasonable care for their own safety. Ward, supra, states that the landowner, or possessor of the land, is not expected to anticipate the negligence of others. Mr. Shields was not exercising reasonable care. The danger was open and obvious, and it should have been recognized by him.

The facts in this case are similar in many respects to Thornburg v. State (1986), 39 Ill. Ct. Cl. 139. In Thornburg, a university employee slipped and fell on a stairway at the entrance of a building. The stairway was wet because of heavy snow conditions outside the building. The university recognized its obligation with regard to this condition and had taken steps to remedy it. This is exactly what the staff of Assembly Hall does via their cleanup procedures. Mr. Rhodes testified that the university recognizes the possibility of spills in Assembly Hall, and it uses precautions to try and ensure the safety of invitees. It should be noted that Assembly Hall seats approximately 16,000 people.

We find that the university had taken every reasonable precaution to prevent accidents such as the one that happened to Mr. Shields. As we previously stated, the university is not an insurer.

For the reasons stated above, we hold that the Claimant has failed to show that the State breached its duty of reasonable care in maintaining the facilities at Assembly Hall. For those reasons, we hereby deny this claim.


author: Rauco, J. Mitchell, J.

text:
    (No. 89-CC-2968
    Debbie Morge, Claimant, v. The State of Illinois, Respondent.

      Order filed September 18, 1991.

      Order filed December 20, 1994.

    Steinberg, Burtker & Grossman (Richard J. Grossman, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Thomas L. Ciecko, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Rauco, J.

This cause coming on to be heard on the motion of Respondent to dismiss the claim herein; due notice having been given the parties hereto and the Court being fully advised in the premises, the Court finds:

The Claimant seeks recovery for her injuries that she sustained after being attacked by a passenger on the bus that she was driving. The Claimant was employed by the Frontier Coach Bus Company as a bus operator. The Frontier Coach Bus Company was under contract with the State of Illinois to provide bus services for the recipients of the W. A. Howe Developmental Center. The W. A. Howe Developmental Center is part of the Department of Mental Health and Developmental Disabilities.

Section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations require that any person who files a claim before the Court of Claims shall, before seeking final disposition of her claim, exhaust all of her remedies and sources of recovery. The Claimant was attacked by a passenger in the bus that the Claimant was operating. This Court has consistently held that exhaustion of remedies is a requirement and mandatory rather than discretionary and optional. Essex v. State (1987), No. 85-CC-1735, opinion filed October 1, 1987.

Therefore, prior to seeking final disposition of the instant cause in the Court of Claims, Claimant must exhaust all other available remedies by bringing a civil action against her attacker: this Court has consistently interpreted the exhaustion of remedies to be an inescapable requirement. In Lyons v. State, this Court stated that section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations, “quite clearly makes the exhaustion of remedies mandatory rather than optional.” (Lyons v. State, 34 Ill. Ct. Cl. 268.) The Court further stated that if the exhaustion of remedies requirements were waived, “merely because claimant waited until it was too late to avail himself of other remedies, the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants.” (Lyons at 272.) That this Courts interpretation of Court of Claims Act section 25 and Regulations section 790.60 clearly mandates that a claimant must exhaust all remedies available to him and if he has missed the deadline for one such remedy he cannot recover in the Court of Claims because he still had failed to exhaust all available remedies. Since the statute of limitations has run on the action against the attacker, this cause of action should be dismissed.

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

ORDER

Mitchell, J.

Claimant filed a claim on March 17, 1989, alleging that the Respondent, State of Illinois, was in part negligent in its supervision of a certain patient and as a result of said negligence, Claimant received personal injuries. After reviewing the file and the joint stipulation of liability entered into by the parties, the Court hereby finds that the stipulation is fair and just and that the sum of $25,000 is hereby awarded to Claimant, Debbie Morge, in full satisfaction of any and all claims against the Respondent, State of Illinois.


author: Patchett, J. Patchett, J.

text:
    (No. 89-CC-3683
    Be-Mac Transport Company, Inc. and Theodore Welch for the use of Protective Insurance Company, Claimants, v. The State of Illinois, Respondent.

      Motion for voluntary dismissal filed April 10, 1995.

      Order filed May 16, 1995.

    Bernard & Davidson (Gary Smith, of counsel), for Claimant.

      Jim Ryan, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   MOTION FOR VOLUNTARY DISMISSAL

Patchett, J.

Now come Claimants Re-Mac Transport Company, Inc. and Theodore Welch for the use of Protective Insurance Company, by their attorneys, Bernard & Davidson, and move this Court to allow Claimants to voluntarily dismiss this action, without prejudice, with each party to bear its/his own costs.

ORDER

Patchett, J.

Upon motion of Claimants, cause is dismissed without prejudice, with each party bearing its own costs.


author: Raucci, J.

text:
    (No. 90-CC-0156
    Mattia Sabbara, Claimant, v. The State of Illinois, Respondent.

      Order filed February 1, 1995.

    Harvey L. Walner & Assoc. (Leonard B. Miller, of counsel), for Claimant.
    Joseph P. Buell, for Respondent.
   ORDER

Raucci, J.

This cause coming on to be heard on the Respondents motion to dismiss pursuant to section 2 — 619(9) of the Code of Civil Procedure (735 ILCS 5/2 — 619(9)), the Court being fully advised in the premises, the Court finds:

(1) A prior adjudication against the Claimant in the circuit court of Cook County in the case of Mattia Sabbara v. Monarch Asphalt Company, No. 89-L-9703, collaterally estops Claimant from relitigating the issues raised in this case, principally whether the sewer covers constituted a dangerous condition which proximately caused his injuries and whether any failure to warn or barricade the area proximately caused his injuries.

(2) Claimant’s circuit court action was against the Respondent’s contractor who was constructing or repairing the highway in question. Claimant made substantially the same claims against Monarch that it makes against Respondent in the instant action.

(3) On March 24, 1994, judgment was entered on a jury verdict in favor of Monarch and against Claimant.

(4) The doctrine of collateral estoppel applies when a party participates in two separate cases arising from different causes of action and some controlling fact or question material to the determination of both causes was decided against that party in the former suit. (Cleveringa v. J. I. Case Co. (1992), 230 Ill. App. 3d 831, 847, 595 N.E.2d 1193, 1205.) The determination of a fact or issue in the prior case will, if properly presented, be conclusive of the same question in the subsequent action. (Housing Authority for LaSalle County v. Young Mens Christian Association (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959.) The parties need not be identical in both cases, but the party against whom collateral estoppel is asserted must have been able to litigate the issue. (Nagy v. Beckley (1991), 218 Ill. App. 3d 875, 883, 578 N.E.2d 1134.) Collateral estoppel is most frequently asserted by a defendant to preclude relitigation of an issue which the plaintiff had. unsuccessfully litigated against a different defendant in another action.

(5) In the instant case, Claimant litigated the same issues against the Respondents contractor. The negligence alleged against Respondent by Claimant in the construction or repair of the highway is the same negligence alleged against the contractor. The verdict in favor of the contractor precludes relitigation of the same negligence issues against the Respondent.

It is therefore ordered that the Respondents motion to dismiss pursuant to section 2 — 619(9) is granted, and this action is dismissed and forever barred.


author: JANN, J.

text:
    (No. 90-CC-0194
    Stephen Stewart, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 5, 1995.

    Bernard Davis, for Claimant.
    Jim Ryan, Attorney General (Frank Lyons, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Hearing was held on this cause sounding in tort, on February 7, 1995, at Chicago, Illinois, before Commissioner Michael Kane.

On October 6, 1987, the Claimant, Stephen Stewart, entered the Department of Public Aid office at 8001 South Cottage Grove, Chicago, Illinois. Mr. Stewart had been in that office on numerous occasions in the past, and on this day he was there to seek a State card for medical treatment. There were rows of chairs located in the waiting area and he selected a chair in which to place his body. As he did so, the chair moved out from underneath him, causing him to fall to the ground and injure his back and legs. Mr. Stewart seeks compensation for those injuries in this claim, maintaining that it was the negligence of the State which was the proximate cause of those injuries.

The floor in the location where this incident took place was made of tile. The chair in question was a metal chair of some sort which was similar to all the other chairs in the seating area. Mr. Stewart described his attempts to sit down as simply turning around and trying to sit down, feeling the chair slide out from underneath him as he sat on the edge and then falling to the ground. He presented no evidence to indicate that there was anything wrong with the chair or that there was anything wrong with the floor other than his description that it was slippery. Claimant did not testify to any defect in the condition of the floor which made it slippery. He simply presumed it was slippery as the chair had slid away from him as he attempted to seat himself. Claimant was helped to a seat after the fall by another client at the office whom he knew casually and Vanessa Lovett, a security guard at the office who witnessed his fall.

Claimant testified that he saw no defects in the chair prior to or after his fall.

Vanessa Lovett testified on behalf of Respondent. She stated that Claimant was talking to a person a few seats away as he began to sit down. Ms. Lovetts testimony was consistent with Claimant’s as to the fact that the chair and floor appeared in no way defective.

In order to recover an award, Claimant must prove that the Respondent was negligent in its maintenance of the premises and that it had actual or constructive notice of a dangerous condition. While the State owes a duty of reasonable care in maintaining its premises, it is not an insurer of the safety of persons entering said premises. (Noonan v. State (1983), 36 Ill. Ct. Cl. 200.) Claimant has provided no evidence of defect or notice of defects at the premises. Claimant has failed to prove these propositions by a preponderance of the evidence.

This claim is hereby denied.


author: Jann, J. JANN, J.

text:
    (No. 90-CC-0919
    Dale Peters, Special Administrator of the Estate of Robert D. Peters, Claimant, v. The State of Illinois, Respondent.

      Order filed August 25, 1994.

      Order on petition for rehearing filed January 13, 1995.

    Fischel & Kahn (David W. Inlander, of counsel), for Claimant.
    Jim Ryan, Attorney General (Patrick Breen, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Jann, J.

This cause comes on to be heard on the motion of Respondent to dismiss, due notice having been given and the Court being fully advised in the premises finds:

Claimants allege Respondents breached a duty owed Claimants decedent, a minor child, by returning him to his mothers home where he was abused and eventually murdered by his mothers boyfriend. Claimants further allege willful and wanton conduct by Respondents in failing to investigate the abuse of decedent, failing to remove decedent from his mothers home, failing to inform proper authorities of the abuse, denying knowledge of the abuse, acting in a manner to impede an investigation of the abuse and failing to fully cooperate in the investigation.

Respondent cites MidAmerica Trust v. Moffatt (1987), 511 N.E.2d 964, 158 Ill. App. 3d 372 (5th Dist.) in support of its motion. A review of Moffatt indicates that the facts of this case are virtually identical. The Moffatt court dismissed the case finding no breach of duty by the caseworker and that no duty of care was owed the child by the caseworker. It held that the mother was responsible for the care and protection of her child. 511 N.E.2d 964 at 970, 971.

Moffatt further held that the claimed injuries were not proximately caused by any negligence of the caseworker, but by the mothers breach of parental duty.

We find Moffatts reasoning fully applicable to the case at bar and hereby grant Respondents motion to dismiss.

ORDER

JANN, J.

This cause comes on to be heard on Claimants petition for rehearing. The Court having reviewed the record and being fully advised in the premises finds:

(1) Claimant misrepresents the Courts finding, asserting that duty arises only to children in its custody and makes conclusions not supported by the evidence in its arguments for rehearing.

(2) Claimant presents no case law to support its position.

(3) Claimant asserts that MidAmerica Trust v. Moffatt (1987), 158 Ill. App. 3d 372, 511 N.E.2d 964 (5th Dist.) presents a distinguishable precedent as the child was allegedly returned to his mothers home after a judicial determination as to the mothers fitness. The asserted determination is not clear and is specifically referenced as such in Moffatt.

(4) Claimant’s decedent’s death was caused by a third party. No duty has been established which could impute liability to DCFS or its caseworker. The imposition of duty Claimant asserts would hold DCFS to an impossible standard. The caseworker who saw decedent once would become liable for his eventual murder by a third party.

Claimant’s petition is hereby denied.


author: Montana, C.J. Patchett, J.

text:
    (No. 90-CC-2917
    George Alarm Company, Inc., and Tiny Scott, Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 6, 1990.

      Order filed December 20, 1994.

    Tiny Scott, pro se, for Claimant.
    Roland W. Burris, Attorney General (Michael F. Rocks, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

Both of the claims at bar raise the issue of when the limitations period contained in section 22(a) of the Court of Claims Act (705 ILCS 505/1, et seq.) begins to run when the sole cause of the breach of the contract is the nonpayment due to lapsing of the funds appropriated for payment on the contract.

Claimant George Alarm Company, Inc. filed its claim on the standard lapsed appropriation form complaint on October 5, 1988, seeking $216 in payment for services rendered July 1, 1983. Claimant Tiny Scott filed his claim on the standard lapsed appropriation form complaint on April 23, 1990, seeking $329.25 in payment for emergency foster care services rendered from November 24, 1984, through December 19, 1984. The dates of the services in both cases are not in dispute.

The Respondent moved for dismissal on the grounds that the statute of limitations cited above was a bar to each claim. Although not expressly stated, it is apparently Respondents position that the limitations period begins to run on the date that the services were rendered. We disagree.

While the five-year statute of limitations does not apply to all of the various kinds of lapsed appropriations claims (see Ontis v. State (1987), 40 Ill. Ct. Cl. 198), it is clear that it applies to lapsed appropriation claims arising from a contract. (Goodwill Industries of Chicago v. State (1982), 35 Ill. Ct. Cl. 318.) Both of the claims at bar arise from a contract. The only alleged breach of both contracts was nonpayment due to lapsing of the appropriated funds. Based on departmental reports attached to the motions to dismiss and offered as prima facie evidence of the facts contained therein pursuant to 74 Ill. Adm. Code 790.140, we find that no other breach occurred and but for the lapsing of the appropriations the claims would have been paid. See responses to question 16 in each report.

The facts in the cases at bar are similar to those in Goodwill Industries and Cook County v. State (1982), 35 Ill. Ct. Cl. 303. That case was filed as a lapsed appropriation claim and the only defense raised was the statute of limitations. The Court decided that the cause of action for the breach of the contract accrued and began to run when payment was due and not made. If that reasoning was applied to the cases at bar, motions to dismiss would be granted.

However, since the two Goodwill claims were decided, the Court has ruled on another claim involving the statute of limitations as it applies in lapsed appropriation claims. Ontis v. State, supra, was a lapsed appropriation claim which did not arise out of a contract. In that case the accrual date of the cause of action was at issue. Although the Court did not find it necessary to decide exactly what that date was (an internal agency regulation may have barred the claim earlier), the Court said:

° 6 In any event, a cause necessarily ‘accrues’ as of ° * 0 the close of business on September 30 following tire end of Respondent’s fiscal year, following which Respondent has no statutory authority to pay tire claim from an expired appropriation. ° ° Ontis, supra at 200.

The September 30 date is the end of the three-month grace period allowed in section 25 of the Finance Act (30 ILCS 105/25), for agencies to pay their outstanding liabilities incurred in the prior fiscal year.

Although the Ontis claim did not involve a contract, we find that the approach taken should be applied in lapsed appropriation contract claims, too. The respondent agencies in the cases at bar had up to three months after the close of the fiscal year in which the obligations were incurred to make the payments. In George Alarm, payment could have been made any time up to September 30, 1984, and in Tiny Scott, payment could have been made any time up to September 30, 1985. Both claims were filed within five years of the end of the fiscal years in which the obligations were incurred. The reason this approach is better is that had these lapsed appropriation claims been filed here before those September 30 dates, they would have been dismissed as premature. It would be incongruous in the absence of statutory authority otherwise for us to hold that the limitations period began to run before the claim could be filed.

This decision is limited solely to breach of contract claims filed as lapsed appropriation claims where the sole reasons for the nonpayment on the contract is due to the lapsing of funds appropriated for payment on the contract. Insofar as Goodwill Industries and Cook County v. State, supra, is inconsistent, it is overruled.

Although the departmental reports filed with the motions to dismiss state in each case the services rendered were properly authorized and satisfactorily delivered, we are unable to go on and enter awards due to the inaccuracy and absence of fiscal dates in the reports. In George Alarm, the bill was an FY84 obligation but the report contains fiscal data for FY89. The report in Tiny Scott does not contain any fiscal data.

For the reasons stated hereinabove, the motions to dismiss are denied and Respondent is ordered to provide the necessary fiscal data on each claim or otherwise plead within 30 days of the date of this opinion; it is further ordered that if Respondent does not comply, these claims are to be assigned to a Commissioner.

ORDER

Patchett, J.

This matter coming to be heard upon the motion of Respondent to enter an award for less than the amount claimed and to dismiss the remainder of the claim, due notice having been given and the Court being fully advised in the .premises:

It is hereby ordered that the motion of Respondent be, and the same is, hereby granted, and the Claimant is awarded $248.94 pursuant to the Respondents stipulation, and the remainder of the claim is dismissed.


author: Frederick, J.

text:
    (No. 90-CC-3343
    Leann Nixon, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 5, 1994.

    Michael Falconer, for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

The claim of Claimant, Leann Nixon, comes before the Court pursuant to the terms and provisions of the Law Enforcement Officers and Firemen Compensation Act (820 ILCS 315/1, et seq.). The Claimant, Leann Nixon, is the widow of Chicago police patrolman Dean Nixon, who died on June 9,1989.

The Court initially reviewed the application for benefits submitted by the Claimant, together with the written statement of officer Nixons supervising officer and documentation submitted therewith, the medical examiner’s certificate of death, the decedent’s designation of beneficiary, and the report of the Attorney General. After that review, the Court entered an order that we were unable to determine whether officer Nixon was killed in the line of duty, as is a precondition of the granting of compensation under the Act.

A hearing was held before the Commissioner assigned to the case and oral arguments were held before the full Court.

The sole issue before the Court is whether officer Nixon was killed in the line of duty. Claimant would be entitled to an award if officer Nixon was killed in the line of duty. Such a determination is a factual issue to be determined by the Court. For purposes of the Law Enforcement Officers and Firemen Compensation Act, the phrase “killed in the line of duty” is defined as losing ones life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date of injury and the injury arose from violence or other accidental cause except the term excludes death resulting from the willful misconduct or intoxication of the officer or fireman. (In re Application of Yoho (1989), 42 Ill. Ct. Cl. 249.) The police officer must be in the active performance of his duties as a law enforcement officer for an award to be made.

In the instant case, the Claimant had an altercation with a Mr. Eagles several days before June 9, 1989. The dispute was resolved and the police were not called. On June 9, 1989, Mrs. Nixon apprised officer Nixon of the prior occurrence. Officer Nixon was off duty and in sweatpants and a t-shirt. He took his personal gun and his badge and drove to Herman Eagles’ residence. Officer Nixon left his gun and his badge in the vehicle. He then spoke to a relative of Mrs. Nixon who lived in the building, refused his offer of assistance, and then went to the Eagles’ back porch. A confrontation arose with Eagles’ mother and then with Herman Eagles. Officer Nixon never identified himself as a police officer. Officer Nixon was at the back door of the Eagles’ apartment. He was cut by Eagles. Shortly thereafter, he and Eagles fell off the porch area and officer Nixon died. The State’s Attorney felony review official refused to file criminal charges against Eagles and the Policemens Annuity and Benefit Fund of the City of Chicago denied benefits based on officer Nixons death.

The actions of the felony review attorney and the Policemens Annuity and Benefit Fund have no bearing on the outcome of this case as their standards are different from the standards and burdens of proof before this Court. Claimant must prove by a preponderance of evidence that Claimant was killed in the line of duty as defined by the Act.

We find that Claimant was not killed in the line of duty based on the evidence presented in this case to the Court. The death of officer Nixon is a tragedy but we find he was not in the active performance of his duties as a law enforcement officer. The evidence shows that officer Nixon was on a personal business matter. The purported prior occurrence happened days before and the police were not called. At the time of death, officer Nixon was off duty, out of uniform, did not have his gun or badge on his person, failed to have back-up or report his activities, and did not identify himself as a police officer.

While we have great sympathy for Mrs. Nixon and applaud the fine efforts of her counsel, we are constrained to find that officer Dean Nixon was not killed in the line of duty and therefore, Claimant is not entitled to benefits pursuant to the Law Enforcement Officers and Firemen Compensation Act. For the foregoing reasons, the claim of Leann Nixon is denied.


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

text:
    (No. 91-CC-0193
    Melissa D. Brown, Claimant, v. Southern Illinois University, Respondent.

      Opinion filed October 16, 1991.

      Opinion filed May 12, 1994.

      Order on petition for rehearing filed August 8, 1994.

    Maureen Nelson Schuette, for Claimant.
    Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge (Steven C. Mudge, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This cause coming to be heard on the motion of the Respondent to dismiss, due notice having been given, and this Court being fully advised in the premises, finds that this claim arose from an automobile accident on January 25, 1989. On July 14, 1989, the Respondent filed suit for damages in the small claims court in Madison County. The Claimant filed a counter-claim, and on February 9, 1990, the judge in Madison County ruled that the counterclaim must be filed as a claim in the Court of Claims, as the circuit court had no jurisdiction to hear a claim against the State. A notice of injury was filed with this Court on April 24, 1990, and the claim was filed July 20, 1990. The Respondent has moved for dismissal on the grounds that the notice of injury was not filed within one year of the occurrence of the accident, as per section 22 — 1 of the Court of Claims Act. 705 ILCS 505/22 — 1.

This Court notes the unusual circumstance of this claim. The Respondent was the party who initiated action by filing suit in Madison County. The Respondent hardly can maintain that it had no notice of the accident and the circumstances surrounding it. However, in past cases this Court has rejected the argument that if some State employees had knowledge of the accident, which they often do, the statutory notice requirement was met even if no notice was filed. (Thomas v. State (1961), 24 Ill. Ct. Cl. 137; Munch v. State (1966), 25 Ill. Ct. Cl. 313; Bodine v. State (1983), 35 Ill. Ct. Cl. 777.) We, however, believe that there is an operative distinction between State employees knowing that an accident occurred and the filing of suit based upon an accident.

As the State filed the suit, it was informed of the circumstances of the action and had the opportunity to investigate and make measured and official decisions. It is no longer a matter of some isolated State employees knowing about the accident. Thus, the purpose of the notice requirement would have been fully fulfilled, but more importantly, it should not be then invoked to prevent the other party from exercising its full range of responses to the suit filed by the State. Indeed, the supreme court has recognized that filing in another court may satisfy the notice requirement of the Court of Claims. (Williams v. Medical Center Commission (1975), 60 Ill. 2d 389.) Therefore, we find that the Claimant was not required to file the notice within one year as required by section 22 — 1 of the Court of Claims Act under the circumstances of this claim.

The Claimant has requested punitive damages, and the Respondent has made a motion to dismiss that part of the complaint that prays for punitive damages.

Section 8(d) of the Court of Claims Act confers upon this Court jurisdiction in certain tort claims, to wit:

“All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation “ ° ° ” *” 705 ILCS 505/8(d).

This Court traditionally has not awarded punitive damages, but the Claimant argues there is nothing in section 8(d), supra, or the Court of Claims Act to prevent this Court from awarding punitive damages.

Section 8(d), supra, uses the term, “cause of action.” There are many definitions of a “cause of action,” but it is usually understood to be a set of facts giving rise to a claim allowed and enforceable by a court. Punitive damages are not a cause of action but are a type of relief arising from some successful causes of action. (McGrew v. Heinold Commodities, Inc. (1986), 147 Ill. App. 3d 104.) Thus, section 8(d) of the Court of Claims Act does not specifically authorize, by its language, this Court to assess punitive damages, as it speaks in terms of causes of action, not types of relief.

The Claimant, in support of this Courts awarding punitive damages, would argue that article XIII section 4 of the Illinois Constitution abolishes sovereign immunity except as provided by the General Assembly. Thus, governmental units would be subject to causes of action and types of relief the same as corporations and individuals except when exempted by the General Assembly. Indeed, the General Assembly did act in regard to local government to prohibit punitive damages. (745 ILCS 10/2— 202.) Therefore, the Claimant would argue that since the General Assembly did not act to prohibit the Court of Claims from awarding punitive damages, as it did in the case of local governments, the Court of Claims may award punitive damages.

Repeated cases state that punitive damages are not favored in the law. (For example see Hammond v. North American Asbestos Corp. (1983), 86 Ill. 2d 195.) In the same case, the supreme court directed that the courts should take action to see that punitive damages are not improperly or unwisely awarded.

The purpose of punitive damages is to punish and deter outrageous conduct. (Winters v. Greely (1989), 189 Ill. App. 3d 590, appeal denied 128 Ill. 2d 673.) Punitive damages are penal in nature, meant to punish the wrongdoer and not to compensate the injured. Kelsay v. Motorola Inc. (1978), 74 Ill. 2d 172. Smith v. Hill (1958), 12 Ill. 2d 588.

The fact that punitive damages have not been assessed against governmental units in Illinois is based on strong public policy grounds as well as sovereign immunity. Local governmental units in Illinois have been exempted by the General Assembly from punitive damages on the ground that it is unsound public policy to punish taxpayers for misconduct of employees over which they have no control. So strong is the public policy that recently a public railway corporation, METRA, not specifically named in the Tort Immunity Act and not exempted from punitive damages in its enabling act has been held not to be subject to punitive damages on public policy grounds. Smith v. Northeast Illinois Regulatory Comm. R.R. Corp. (1991), 210 Ill. App. 3d 223, 569 N.E.2d 41.

In view of the fact that the Court of Claims Act does not specifically authorize the payment of punitive damages and that there is strong public policy against punitive damages, particularly when assessed against government, this Court cannot award such absent a specific authorization to do so by the General Assembly.

It is therefore ordered that the part of the motion to dismiss directed to the statutory notice is denied and the part of the motion to dismiss directed to punitive damages is granted and that the prayer for punitive damages in the amended complaint is stricken, and this claim shall be returned to the Commissioner for hearing.

OPINION

Sommer, C.J.

This claim for property damages and personal injuries is brought against Southern Illinois University, Edwardsville, as a result of a collision between the Claimant’s vehicle and one of the university’s cargo vans.

The above vehicles collided at approximately 1:00 p.m. on January 25, 1989, on New Poag Road at its intersection with Bluff Road. The Claimant had just completed a final exam at the university and was on her way home to Wood River, Illinois. It was raining. The collision took place approximately one-tenth of a mile past the point where the Claimant had turned onto New Poag Road. The Claimant was following the university's cargo van from the point she turned onto New Poag Road, and both she and the van driver claim to have been traveling at a reduced speed of 35 miles per hour (51.33 feet per second) due to the bad weather.

As the Claimant was following the university’s van, she observed the brake light on the right rear of the van came on, but she did not notice that any light on the left side of the vehicle went on. It is undisputed that the van’s left taillights (both turn signal and brake lamps) were not working. The van was gradually slowing down to make a left turn onto Bluff Road; its driver was concerned about not making a rapid left turn because there were no shelves in the van to prevent packages inside from sliding around or falling over.

The Claimant testified that she was following within three car lengths of the van at the point that the right brake light had come on. Assuming that a “car length” is in the neighborhood of 15 to 20 feet, that meant that she was at most approximately 45 to 60 feet behind the van, a distance that could be closed in roughly one second at a speed of 35 mph.

Upon seeing the van’s right rear brake light come on, the Claimant immediately braked, and her car began to slide out of control. The Claimant sensed that she was about to collide with the rear of the van and attempted to move into the left, oncoming lane of traffic. As the van was making its left turn onto Bluff Road, the driver looked in the rear-view mirror, saw the Claimant’s car coming out from behind the van, shouted “Oh, hell she’s passing,” and jerked the steering wheel to the right in an attempt to avoid a collision with the Claimant’s car. Nonetheless, the front passenger side of the Claimant’s vehicle struck the driver’s door of the van, causing an impact which knocked the van over toward the right shoulder of the road and threw the van’s passenger out of his seat and onto the floor.

Following the collision, the Claimant told the vans passenger that she was sorry and explained to the van’s driver that she had lost control of her car. A State trooper who responded to the accident testified that the Claimant’s car had gone into a slide because the Claimant had locked the brakes.

The Claimant alleges, in essence, that this collision resulted from the van’s inoperative left rear turn signal and brake light. The university contends that, notwithstanding the faulty light, it did not cause this accident and that the contributory fault of the Claimant is more than 50% of the proximate cause of the collision and damages, thereby barring the Claimant’s recovery pursuant to section 2 — 1116 of the Code of Civil Procedure. 735 ILCS 5/2 — 1116.

In reading the Claimant’s brief and listening to her argument, one could easily come to the conclusion that liability has been fully established against the university simply by virtue of the uncontroverted fact that the van’s right rear turn signal was inoperable at the moment of this collision. After all, that was a clearly negligent act on the part of the university which violated express provisions of the Illinois Vehicle Code, section 12 — 208(b) and 11 — 804(a), (b) (625 ILCS 5/12 — 208(b) and 625 ILCS 5/11 — 804(a), (b)). But it is a fundamental principle of tort law that proof of negligence does not complete a claimant’s case. There is the further and more crucial question of proximate cause.

It simply is not enough to show that the supposed tortfeasor was guilty of some fault; in order to recover, the Claimant must also establish that the negligence complained of was the proximate cause of the Claimant’s injury and damages. This legal principle has long been specifically applied in automobile negligence cases where a portion or portions of the Vehicle Code have admittedly been violated by an alleged tortfeasor. Time and again courts have stressed that negligence alone does not create liability:

“Such violations must in addition be shown to have proximately contributed to the injury before liability ° “ 0 can be predicated thereon.” Hestand v. Clark (1952), 345 Ill. App. 480, 485; 103 N.E.2d 652, 654 (4th Dist.)

Thus, the critical inquiry in this case is not whether the university was negligent, but whether its negligence was the proximate cause of this collision.

The state of the evidence is such that the inoperable turn signal on the university’s van was not the proximate cause. With a gap of at most between 45 and 60 feet between the front of her car and the rear of the university’s van, the Claimant had put herself in a position where she had allowed only one second of time to both react and completely respond to anything that the van might do, proper or otherwise. The Claimant did not lose control of her car because of the van’s broken turn signal. She skidded out of control because she was following the van too closely and locked up the brakes when attempting a panic stop. Accordingly, we find that the Claimant’s own negligence was the proximate cause of this collision.

Notwithstanding the Claimant’s assertions to the contrary, the addition of a turn signal would not have changed anything; this accident still would have occurred due to the insufficient distance which the Claimant had left between her car and the university’s van. Accordingly, her claim is barred by section 2 — 1116 of the Code of Civil Procedure, as the Claimant’s contributory fault was more than 50% of the proximate cause of the accident.

It is therefore ordered that this claim is denied.

ORDER

Sommer, C.J.

This cause coming to be heard on the Claimants petition for rehearing, due notice having been given, and both parties having filed briefs, and this Court being fully advised, finds that this Court by an opinion issued on May 12, 1994, found the Claimant to be more than 50% of the proximate cause of the accident complained of, and therefore denied the claim; and this Court having reviewed its opinion and having read the briefs filed by both parties in regard to the petition finds no good cause for reconsidering its basic finding as cited above.

It is therefore ordered that the Claimants petition for rehearing is denied.


text:
    (No. 91-CC-0595
    Kelly White, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 2, 1994.

    SCHOENFIELD & SWARTZMAN (RICH SCHOENFIELD and Kimberlee Massin, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Iain Johnston, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

The Claimant was a resident of the Illinois Department of Corrections. On October 5, 1989, he was eating dinner in the dining room, along with 150 to 200 other inmates. A fight broke out several rows from the Claimant between two inmates. A crowd quickly ringed the combatants to watch.

Officer McEwing was on duty that evening in the guard tower overlooking the dining hall. Officer Anderson was on foot patrol in the north dining hall. Officer Mancera was in the guard tower overlooking the south dining hall. Lieutenant Valestin was on floor duty in the south dining hall.

After officer McEwing observed the fight, she sounded the alarm bell. Inmates have been instructed that at the alarm’s sounding, any extraneous activity should cease. They have been informed that they should sit or stand quietly where they are after the bell sounds. The bell was ignored in this case. The fight continued, and the crowd did not return to their seats. Officer Anderson approached the fighters and attempted to break up the disturbance. One of the fighters swung at him. Anderson then realized that he had no back-up or support. Two minutes after the bell had sounded, the fight was still going on. Officer McEwing picked up a .12 gauge shotgun and loaded it with birdshot.

The distance from the guard tower to the site of the fight was disputed. The court will accept the Respondents estimate of approximately 60 feet. McEwing fired a warning shot toward the ceiling. This had no effect, and her next shot was aimed at the combatants. Mr. White states that the pellets from the second blast ricocheted off the floor and hit him in the lower leg and ankle. The fight continued, and McEwing fired a final load in the direction of the combatants. Mr. White states that this shot also ricocheted from the floor and resulted in wounds to his back and groin area. After the third shot, the fight stopped. The fighters allowed themselves to be cuffed by the officers on the floor.

Mr. White and others who were struck by the bird-shot were taken to the infirmary, treated, and released. Mr. White was unable to walk for several days, and he claims that he still experiences discomfort from the pellets left in his leg. Mr. White has asked for $20,000 for his injuries.

Petitioners raised an argument for the first time in their brief that the State was negligent for failure to provide proper training to its correctional officers regarding the use of weapons in the tower. Petitioners counsel argues that the use of tear gas would have been preferable to birdshot. He further argues that officer McEwing did not use gas because she erroneously thought she needed the wardens permission to do so. This turned out to be untrue. However, several of the other officers testified that the use of tear gas projectiles was contraindicated under the circumstances. In addition, the argument was made for the first time in the brief. Therefore, we decline to find liability based on that argument.

Inmates in prison have a reasonable right to personal safety. When a fight breaks out, the State owes a duty to the general prison population to restore order as quickly as possible and prevent the unwanted attack on inmates, regardless of other inmates. However, being in prison is not in any way to be compared with being at Boy Scout camp. The officers actions in this case were entirely reasonable, considering the situation she was confronted with. She sounded the alarm and waited for the inmates to respond as they had been instructed. Her first shot was in the ceiling. This too was ignored. By choosing to use birdshot, instead of a mini .14 caliber gun also in her possession, she used somewhat less than the maximum amount of force available to her. Under the circumstances, and considering the distance from the tower to the fight scene, the use of the shotgun in most circumstances would not be the use of deadly force. We find that officer McEwing reacted properly and promptly to a potentially dangerous situation. She did so in measured and reasoned steps. We therefore deny this claim.


author: JANN, J. JANN, J.

text:
    (No. 91-CC-0600
    Central Illinois Public Service Company, Claimant, v. Eastern Illinois University, an agency of The State of Illinois, Respondent.

      Order filed December 28, 1994.

      Order filed April 28, 1995.

    Sorling Northrup Hanna Cullen Cochran, Ltd. (Craig Burkhardt and Mark K. Cullen, of counsel), for Claimant.
    Dunn Goebel Ulbrich Morel & Hundman (David Dunn, of counsel), for Respondent.
   ORDER

JANN, J.

This cause comes before the Court on cross motions for summary judgment and responses thereto by Claimant and Respondent. Oral arguments were heard on November 9, 1993, in Springfield, Illinois.

Facts

Claimant, Central Illinois Public Service Company (“CIPS”) seeks $220,776.85 for delivery of natural gas to Respondent, Eastern Illinois University (“EIU”) pursuant to a contract executed and acknowledged by the parties. The period of October 1984 through June 1990 is at issue herein. During this period, EIU received monthly invoices from CIPS for the transportation and delivery of natural gas purchased by EIU from third-party producers pursuant to the contract. EIU also received invoices from CIPS for natural gas purchased directly from CIPS at the “PGA” rate. The PGA rate is usually higher than the rates charged by third-party suppliers.

During a given month when the amount of gas purchased by EIU from third parties and transported to CIPS for delivery was less than the amount actually used by EIU during that month, EIU either paid for the difference in volume at the PGA rate on file with the Illinois Commerce Commission or would agree to replace the deficit volume at a later date. If EIU elected to replace the deficit at a later date, CIPS would debit the deficit volume to the “natural gas bank balance.” When EIU purchased excess gas in a given month, a credit was applied to the natural gas bank balance for future overusage.

Although Respondent EIUs answers to CIPS’ amended complaint denies the allegations of paragraphs 11-13 of the amended complaint, EIUs cross motion for summary judgment appears to rely on the following:

“11. Due to record-keeping errors, credits to Eastern’s volume ‘bank’ were overstated on one or more of the monthly statements for the calendar months of October, 1984 through June, 1990.
12. As a result of the overstatement of volume ‘bank’ balances, CIPS did not bill Eastern for various dollar PGA amounts, which it otherwise would have billed notwithstanding the record-keeping errors.
13. CIPS recalculated the ‘bank’ balances to correct for record-keeping errors. Pursuant to such recalculations, CIPS determined that PGA dollar amounts were owed for the months of August, 1989, September, 1989, May, 1990, and June, 1990 in the amount of $220,776.85.”

CIPS submitted a bill to EIU on or about July 26, 1990, reflecting a negative “bank” balance of 685,267 therms existing as of June 30, 1990. This billing was in the amount of $220,776.85 and has not been paid to date by EIU. The billing reflected revisions of the “bank” balance based upon CIPS’ internal audit and a report of independent public accounting by Arthur Anderson dated December 20, 1989, which corrected previous accounting errors.

The Law

The parties do not contest the amounts of gas actually delivered and used. The primary issue we must decide is the applicability of 83 Ill. Admin. Code 280.100(a) which provides:

“A utility may render a bill for services or commodities provided to: o o o
(2) a nonresidential customer only if such bill is presented within two years from the date the services or commodities were supplied.”

The parties agree EIU is a nonresidential customer. EIU asserts that pursuant to the above provision, CIPS may not recover amounts for overages actually accrued in the period prior to June 29, 1988, but billed in July 1990.

Claimant agrees that negative “bank” balances were contemplated by the parties and used for EIUs benefit for the periods September 1987 through May 1988 and again from June 1989 through January 1990. These negative balances were subsequently repaid by excess purchases by EIU during October 1989 and Februaiy 1990.

CIPS further argued that although accounting errors dated back to September of 1986 and were discovered in late 1989, gas bank arrearages comprising the $220,776.85 billed in July 1990 are specifically attributed to August 1989, September 1989, May 1990 and June 1990 by applying the FIFO (first-in-first-out) accounting method. This method would allegedly place all arrearages within the two-year time frame required by section 280.100(a) of the Ill. Admin. Code.

Respondent argues that the overstatements of “bank” credits booked by CIPS were actually understatements of usage. EIU points out that CIPS s complaint at paragraph 12 alleges a failure to bill for overusage. The Court specifically asked if this was an issue of material fact. Respondent stated that there were no facts in dispute and voiced a desire for ruling on the summary judgment motions.

Respondent further argued that through CIPS’s errors, EIU was denied the opportunity to establish a positive “bank” balance by purchasing gas from third parties at lower cost and that its ability to accurately budget for gas usage was impaired.

Respondent admits that EIU owes CIPS for 249,881 therms in overage for the two-year period preceding the July 1990 bill.

CIPS argued that the course of dealing, custom and usage with EIU which allowed for negative balances amounted to a waiver of the provisions of section 280.100(a) of the Ill. Admin. Code.

Neither the parties nor the Court were able to find applicable case law on this matter. We shall, therefore, proceed on the basis of strict construction of section 280.100(a) of Ill. Admin. Code.

CIPS’ arguments that FIFO accounting methods place all arrearages within the two-year statute of limitations are not convincing. FIFO is a widely-accepted accounting principle which the Court recognizes.

However, FIFO consistently applied would have disclosed “bank” deficits in 1986 and allowed EIU to pay or obtain gas to offset said deficits in a timely manner. EIU did address deficits brought to its attention, presumably using a FIFO method during the course of the agreement prior to July 1990.

CIPS’ admission of errors dating back to 1986 regarding the correct balance and the subsequent discovery of said errors in late 1989 make its argument of overages solely attributable to the two-year statutory period highly suspect. The evidence does not adequately support CIPS contentions.

The evidence indicates and the parties agree that CIPS received 6,848,643 therms of gas from third-party suppliers for EIU in the two years preceding July 1990. EIU’s metered usage of gas in the same period was 7,098,524 therms, resulting in a billable deficit of 249,881 therms of gas. The evidence indicates that CIPS has tested and determined EIU’s meters are correct.

EIU cannot waive the provisions of section 280.100(a) through course of dealing, custom and use.

It is hereby ordered that CIPS’ motion for summary judgment is denied to the extent it exceeds 249,881 therms of gas. EIU’s motion for summary judgment is granted as to the deficit of 249,881 therms of gas which may be billed pursuant to section 280.101(a) Ill. Admin. Code. The payment shall be made at the applicable overage PGA rates for the two years in question.

The entire two-year deficit may not be attributed to June, 1990 as argued by CIPS based upon its FIFO accounting previously discussed. By the same token, EIU may not pay the cheaper third-party average price of $0.15 per therm as argued in its cross motion for summary judgment. EIU seeks to pay the lesser price based upon CIPS s earlier accounting errors. To allow EIU to pay the lower price would result in EIU benefitting from the same “rolling balance” methods it attacks in CIPS’s practices.

Rider C to the contract states:

“The Company will not recognize a negative balance when the quantity of gas used by the customer for the billing period exceeds the customer’s gas delivered to the Company [from third party wellheads], including a previous positive balance, such excessive volumes consumed shall be system (CIPS) gas subject to billing under the provisions of the applicable rate. (PGA)”

Further, there is no evidence that EIU had any PGA rate credits during the two-year period. EIU shall receive no PGA credits in the computation of the final payment to CIPS.

EIU shall receive credit for applicable take-on-pay charges and agency fees under the contract.

EIU shall pay applicable State and municipal taxes due CIPS on the negative balance of 249,881 therms.

CIPS shall submit a recalculation of payment due based upon the foregoing findings within 30 days of the date of this order. EIU shall have 30 days from the date of CIPS s filing to dispute said calculations.

ORDER

JANN, J.

On December 28, 1994, an order was entered denying Claimants motion for summary judgment to the extent it exceeded 249,881 therms of natural gas. Respondents cross-motion for summary judgment was granted as to determination of the deficit of natural gas at 249,881 therms. Claimant was directed to submit a recalculation of payment due based upon the findings of the Court.

Claimant has submitted a recalculation of payment due in accordance with the Courts order. The total amount of said payment is $87,684.91, which includes 249,881 therms of natural gas billed at the applicable Purchased Gas Adjustment (PGA) rate as filed by Claimant with the Illinois Commerce Commission, credits for take-or-pay charges, agency fees and the applicable State and municipal taxes.

Claimants recalculation of payment due was timely filed on January 17, 1995. The Courts order of December 28, 1994, directed Respondent to file any dispute or objection to said recalculation within 30 days of Claimants filing. Respondent has not filed any objection within the prescribed period.

Wherefore, we hereby award Claimant the sum of $87,684.91 as full and final compensation in this cause.