text:
    (No. 73-CC-1
    International Business Machines Corporation, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed May 25, 1973.

    International Business Machines Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 73-CC-71
    Missouri Technical School, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed May 25, 1973.

      Missouri Technical School, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-87
    Matheson Scientific Division of Will Ross, Inc., Claimant, vs. State of Illinois, Environmental Protection Agency, Respondent.

      Opinion filed May 25, 1973.

    Matheson Scientific Division of Will Ross, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-108
    Kenneth E. Wheeler, Et Al., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed May 25, 1973.

    Henry W. Gauwitz, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-212
    American Hospital Supply, Division of American Hospital Supply Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed May 25, 1973.

    American Hospital Supply, Division of American Hospital Supply Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-267
    J. Wm. Brennan, Inc., Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed May 25, 1973.

    J. William Brennan, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-325
    Theresa Chiumiento, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed May 25, 1973.

    Theresa Chiumiento, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6328
    Moore Business Forms, Inc., Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed May 25, 1973.

    Moore Business Forms, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6752
    Marcus L. Kogan, D.P.M., Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed May 25, 1973.

    Dr. Marcus L. Kogan, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6837
    Favor Ruhl Company/Michaels, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed May 25, 1973.

    Favor Ruhl Company/Michaels, Claimant, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7083
    W. T. Grant Company, Store No. 1106, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed May 25, 1973.

    W. T. Grant Company, Store No. 1106, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-3
    Central Office Equipment Company, Claimant, vs. State of Illinois, Economic and Fiscal Commission, Respondent.

      Opinion filed June 7, 1973.

    Central Office Equipment Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-43
    Callaghan and Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 7, 1973.

    Riordan, Malone and Kelly, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-72
    The Hub Clothiers, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 7, 1973.

    The Hub Clothiers, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-96
    Xerox Corporation, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed June 7, 1973.

    Xerox Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-168
    Silver Cross Hospital, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed June 7, 1973.

    Silver Cross Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-181
    St. Therese Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 7, 1973.

    St. Therese Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-201
    Little Company of Mary Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 7, 1973.

    Little Company of Mary Hospital, Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-235
    Carl S. Brown, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 7, 1973.

    Carl S. Brown, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-258
    Emma Lee Watson, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 7, 1973.

    Emma Lee Watson, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-270
    S. S. White, Division of Pennwalt Corporation, Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed June 7, 1973.

    S. S. White, Division of Pennwalt Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-278
    Black Office Equipment, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 7, 1973.

    Black Office Equipment, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-298
    Gordon F. Moore, M.D., Claimant, vs. State of Illinois, Judicial Inquiry Board, Respondent.

      Opinion filed June 7, 1973.

    Roy F. Breen, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-299
    City of Peoria, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 7, 1973.

    City of Peoria, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-323
    Willie E. Moore, Sr., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 7, 1973.

    Willie E. Moore, Sr., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Perlin, C.J.

text:
    (No. 5125
    Laura A. Hays, Administratrix of the Estate of Earl Paul Hays, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 7, 1973.

    Apoian and Ross, Attorney for Claimant.

      William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks recovery of the sum of $25,000.00 plus costs for the death of decedent on November 11,1961, in an automobile accident on Route 16 about one-fourth mile east of Hardin, Illinois. Decedent was killed as a result of colliding with a crane being used by respondent for road repairs.

Claimant charges that respondent was negligent in carrying out repairs on Route 16 in that it left a crane and erected barricades on a paved portion of Route 16; that it failed to erect adequate warning signs that the roadway was barricaded; that it failed to have sufficient lights on the warning signs; that it failed to place adequate lights and signs east of said barricades so as to warn approaching motorists of the detour, that it parked the crane on the travelled portion of the pavement; and that it failed to erect warning lights or signals on the crane so as to warn approaching motorists of its presence.

Three eyewitnesses testified in the proceeding: Gary Howland, the driver of an eastbound car, and his passengers, Lindell Brangenburg and Ervin Overjohn.

Howland testified that the accident occurred about 9:00 p.m. Howland was driving a truck eastbound on Route 16 when he came to a barricade and pulled off on the shoulder to go around it. He saw Mr. Hays’ car coming from the opposite direction and saw a crane on the highway in the westbound lane. There was a one lane detour for both eastbound and westbound traffic. The Hays’ car would have had to be in the same shoulder area in which Howland’s truck was traveling to avoid the highway barricades. The witness further testified that he noticed that some of the lights on the barricade had not been flashing properly before they were knocked down by decedent; that there did not appear to be any signs, and that the highway was covered with straw and was slippery at the point of the accident. The witness observed that the decedent’s car was traveling at about 50 miles per hour, although it could have been five or ten miles per hour faster.

Howland’s passengers corroborated the testimony of the driver. Overjohn did not believe the decedent was exceeding the speed limit, but stated the decedent evidently did not see the barricades in time to stop, although he noticed that the brakes of decedent’s car were applied before the collision.

Lindell Brangenburg, the other passenger, testified that he did not notice any lights or signs on Route 16 on the west side of the barricade.

The sheriff of Greene County, Darrell McCollom, testified that he was called to the scene of the accident, but did not observe any signs along the way, although he traveled the same direction as decedent. He testified that he had observed that there was not sufficient lighting at the scene of the accident several nights before its occurrence, the only lighting being smudge pots. About one hour after the accident had occurred, the sheriff observed skid marks in a straight line about sixty or seventy feet in length at the scene.

The state trooper who investigated the accident testified that he saw signs warning of “road construction ahead” lit by pot flares; that he observed straw on the pavement just east of the crane and measured skid marks leading up to the rear of the crane which were 66 feet in length. He described a detour on the south side of the pavement which was approximately 10 feet wide and not of sufficient width to allow two cars to pass safely. The crane was approximately 10 feet wide and was sitting on the two lane highway on the westbound or north side of the road.

Francis R. Halasey, respondent’s resident engineer, testified that he investigated the scene of the accident two days after it occurred and the following signs had been erected for a westbound traveler: “Road Under Construction . . . Drive Carefully,” which was approximately 1,250 feet from the barricade. The sign is 5 feet vertically and 7 feet 6 inches horizontally, with black letters on a white background; “Speed zone ahead ... 40 m.p.h.” about 2 feet by 3 feet; “Detour Ahead” which is 3 feet square, also with black letters on a white background; “Road Repairs Ahead,” the same size as the detour sign with a red flag on it; “Barricade Ahead,” also 3 feet square; “One Way Traffic” about 575 feet away from the one-way traffic; and an arrow pointing toward the detour road. The barricade horses were described as having a six foot by two foot rail on top, two legs on each end, a flashing amber light and a strip of amber paper made of reflectorized material. Halasey did not know whether on November 11, the smudge pots were operating, not having been there since the day before the accident. The crane had been left on the highway “because it was easier to see and for the rest of the work that was necessary to do the repair job.” The crane weighed 10 to 15 tons, and there were no flares, reflector lights, or markings on the crane or on its frame.

Edgar Pethtel, who was Chief of Police at Hardin, Illinois, at the time of the accident, testified that he had passed the scene of the accident about an hour before it had happened and that the area was lit and had lights down the side of the road and underneath the barricade. He was the first law officer on the scene. Pethtel also testified that he noticed the straw covering the pavement under the wheels of the Hays’ automobile. There were flashing lights on the barricade and flare pots on the pavement around the edge of the machine.

Orval Knopp, the construction foreman of the project, testified that the barricades and lights met the specifications as to highway signs, and that there was no further use for the crane for any further work on the road. “The reason we had not moved the crane on this last night of work was that we were working on the ditches.” There was no reason the crane could not have been moved off the highway, although, according to Mr. Knopp, it is customary practice to leave construction equipment within the barricaded area.

Before claimant may recover, it must be proved by a preponderance of evidence (1) that respondent was negligent; (2) that such negligence was the cause of the accident in question; and (3) that decedent was in the exercise of due care for his own safety and therefore, free from contributory negligence.

The respondent argues that where there is a preponderance of evidence showing the presence of illuminated warning signs to indicate a hazardous road condition, the driver in failing to observe them was contributorily negligent and the respondent is therefore absolved from liability. (Bodie vs. State, 21 C.C.R. 386, 389; Gray vs. State, 21 C.C.R. 521; Terracino vs. State, 21 C.C.R. 177, 182; Knoll vs. State, 24 C.C.R. 287.)

Although there was some testimony that the area was not well lit, the respondent established by a preponderance of evidence that a driver travelling in the same direction as decedent should have seen all or some of the seven signs lit by pot flares and placed to warn motorists of the hazard. There were also barricade horses with reflectorized material running across the top.

Despite the warnings, there was no evidence that decedent heeded them or slowed down before he came upon the crane.

Accordingly, claimant has failed to prove freedom from contributory negligence and the claim must be denied.


text:
    (No. 5421
    Illinois Ruan Transport Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 7, 1973.

    John P. Lynaugh, Attorney for Claimant.
    William J. Scott, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks recovery of the sum of $9,650.10 for damages arising out of an accident on August 16, 1965, when one of claimant’s trucks overturned to avoid colliding with a State dump truck.

Thomas Plank testified as follows: He was operating claimant’s tractor and trailer loaded with approximately 8,250 gallons of gasoline, proceeding east on Route 140, a two-lane highway east of Meadowbrook, Madison County, Illinois. It had been raining. He was coming off a hill or grade about 11:20 a.m. when he saw a State dump truck “sitting on the road” about two or three hundred feet ahead and a car behind it blinking its taillights. He saw no warning signs or signals and no flagman. He put on his brakes and tried to stop. There was a car coming in the opposite direction, so he applied his brakes and the cab and trailer skidded off the road sideways and overturned. He estimated that he was going about 40 miles per hour but did not know what distance it would take to stop a 73,000 pound vehicle. The truck turned over about one and one-half times. He had been driving semi-trailer rigs for 22 years. He was familiar with the road. Vision is not as good in a truck as it is in a passenger vehicle because “you are higher up in a truck” and hanging trees block the vision, especially in the summertime.

Charles Richard Johnson testifed for the claimant as follows: He was driving west on Route 140 at the time of the accident. There is a hill and curve “coming on this bridge,” a small concrete bridge. There was a State truck stopped right on the bridge. There was “quite a bit of traffic.” Just as he came past the State truck he saw a tractor trailer coming down over the hill from the opposite direction. There were no flagmen and warning signals from the east, although there was a flagman standing beside the truck between the bridge and the truck, but he was not using any flags and there were no signs. It had been raining. There were two or three cars stopped behind the truck; he saw claimant’s tractor trailer come over the hill. The driver tried to stop but lost control because it was so wet. Then the truck overturned one and one half times. The driver “came out the windshield and landed in the road.” Men wearing orange highway jackets directed traffic after the accident, although not before. However, one of these men was standing between the truck and the bridge at the side of the truck before the accident. After the accident the State truck pulled off the road. The witness left the scene after taking the driver to a telephone where he called his company which called the police. Mr. Johnson testified that he was not a very good judge of distance, but he thought the truck was about one hundred and fifty or two hundred feet away from him when he started losing control of the vehicle and he was about twenty feet away from it when it stopped. The driver was, according to the witness, about 300 or 400 feet away from the car stopped behind the truck when he started losing control. The driver had come down a hill and a curve and then the road was straight right before the bridge. In the opinion of the witness, there was no choice for the truck driver but to brake in order to avoid hitting the cars in back of the truck or the witness’ car.

Albert Perkins McCormick testified as follows: He was traveling east on Route 140 at the time of the accident and saw the truck coming over the hill and around the curve in his rear view mirror. The witness was just coming to a stop and he flashed his tailfights off and on. Perkins stopped because there was another car and a State truck stopped in front of him in the middle of the road. The State men were working on the bridge. He did not see any warning signals or flagman on the highway. The truck was about one hundred yards behind him when he started flashing his signals. He then saw the trailer truck brake, apparently to avoid hitting the witness; the trailer then started slipping to the right and overturned after hitting a stump. There were skid marks approximately 75 feet long on the road. The road was slippery after it rained. He left after the driver was taken to make a phone call. He did not see a flagman go out to control traffic after the accident. When the witness was approaching the place where the truck was stopped he was going about 30 miles per hour on account of the road conditions. The State truck did not have a flashing signal which was operating on top of it. The truck was traveling at about 40 miles per hour.

Dennis Klohr, a maintenance engineer for the Illinois Division of Highways testified on behalf of respondent as follows: He was not an eye witness to the accident, but conducted an investigation of the scene with reference to distances and sites on August 20,1965. A truck approaching the bridge would have a full view of the bridge a distance of eight hundred feet from the work area on the bridge. The truck finally rested at 283 feet from the bridge. The approach to the area is a moderately steep grade for seven hundred feet and the bridge is visible about 800 feet away which is approximately halfway down the hill.

Dennis Franklin Weaver testified that on the date of the accident, he was working for the State of Illinois as a Section Leader and was engaged in filling pot holes in the pavement on Route 140 at the time of the accident. They had a yellow ton and a half truck equipped with a red light on top. The red light was working. One man, John Smith, of the approximately five-man crew was “flagging” behind the truck and another, Dewey Bail, was “flagging in front of the truck.” “We had one-way traffic going” with two flagmen wearing orange vests. Each had paddles with “Stop” on one side and “Go” on the other side. Mr. Bail was about fifty to seventy-five feet in front of the truck and the other flagman, Mr. Smith, was twenty or twenty-five feet behind the truck. Smith had two cars stopped because Mr. Bail had cleared the traffic going west and Smith had two cars stopped waiting to go around the truck and go east. The witness did not observe the Ruan transport truck coming down the highway. He had finished the job and was in the truck when Mr. Bail told him there had been an accident in the back. The witness then pulled the truck off the highway and got out to see the overturned truck. It had been raining and the pavement was slick. There were no signs out saying “Road Work” or “Men Working.”

Dewey Bail testified that he was working for the State as part of the maintenance crew at the scene of the accident. He was flagman at the time. Johnson was a flagman with him. Johnson was temporary and that was the first time he had worked with him. Johnson was behind the truck flagging and the witness was a couple of hundred yards east of the truck. They both had a paddle and a red flag. He was dressed with a highway jacket and was guiding one-way traffic; his traffic had cleared and he had let the last car go, getting ready to flag Johnson to let his cars come around at the time the truck came down the hill. He saw the truck approaching the area. Before he saw the truck he heard it as it approached the curve at the top of the hill. He stated: “it’s a pretty sharp curve, then it straightens on down, and as I saw him I heard him hit the air brakes; that the truck went straight until it got to the foot of the hill, then it veered off onto the shoulder, hitting the stump and jackknifing.” The signal light on the truck was operating at the time and the State truck is colored yellow. The truck was traveling at approximately forty to forty-five miles per hour; that he was not certain of the exact position of the men behind the truck because he was too far up to see them.

Before claimant may recover, it must prove by a preponderance of evidence that (1) claimant was free from contributory negligence; (2) that respondent was negligent; (3) that respondent’s negligence was the proximate cause of claimant’s injuries, and (4) damages.

Claimant contends that “it is the duty of the State of Illinois to maintain the highways within its jurisdiction and under its control in a reasonably safe condition or in the event a dangerous or unsafe condition exists, warn those persons upon the highway of said dangerous or unsafe condition.”

Claimant further contends that Thomas Plank was operating the Illinois Ruan truck in a reasonable and safe manner as he approached the bridge on Route 140; that traffic was heavy and it had been raining; that when the State truck and two cars behind the truck came into view, Plank applied his brakes and overturned on the south side of the highway; that it was impossible for him to drive into . the west-bound lane because he would have hit a car coming from the east; and that it was the duty of the State to erect warning signs at the approach to the crest of the hill and at the downward curve and post flagmen and a barricade warning of one-way traffic and men working.

Respondent argues that the sole proximate cause of claimant’s accident was due to claimant’s own negligence in operating a heavily loaded semi-trailer truck under rainy weather conditions in such a manner that he could not stop the vehicle safely within his range of vision so as to avoid collision with any vehicle stopped on the highway in front of him. The respondent further contends that the claimant has failed to maintain the burden of proof as to any negligence on the part of respondent, State of Illinois, and that the negligence of the State of Illinois, if any, was not the proximate cause of the damages sustained by claimant.

Claimant’s reply to these arguments are as follows: None of the witnesses testified that Thomas Plank was driving the truck in a negligent or reckless manner; that he applied his brakes when he saw that it was impossible to stop without hitting the car in front of him or to have swerved in the opposite lane without hitting an oncoming car; that he was well within the speed limit.

Although there is evidence of negligence in the State’s failure to post warning signals, it would appear that claimant has failed to prove by a preponderance of evidence that its driver was free from contributory negligence.

The record indicates that the truck driver would have had a full view of the bridge and the work area at a distance of 800 feet. Under such circumstances, the driver should have had his vehicle in sufficient control to safely bring it to a stop without skidding off the road.

Recovery is therefore denied.


text:
    (No. 5688
    Dorothy Barfield, Phillip Barfield, a minor, Barbara Barfield, a minor, and Vernell Barfield, a minor, by Hobert Barfield, their father and next friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 7, 1973.

    Robert V. Neely, Attorney for Claimants.
    William J. Scott, Attorney General; William E. Webber and Douglas G. Olson, Assistant Attorneys General, for Respondent.
   Perlin, C.J.

Claimants, Phillip Barfield, Dorothy Barfield, Barbara Barfield and Vernell Barfield, seek recovery of $5,000, $1,000, $5,000 and $25,000, respectively, for injuries incurred when the automobile in which they were riding and which claimant, Phillip Barfield, was driving skidded through a T-intersection and into a ditch on the other side of the intersection. Claimants admit that a stop sign guarded the intersection but contend that the proximate cause of the accident was the failure of the State of Illinois to provide adequate warning of the approaching stop sign and T-intersection. The road on which the claimants were driving was a county road which the State of Illinois had contracted to improve.

The events which led to the accident out of which this cause of action arises are not in dispute. On the evening of October 5, 1967, claimant, Phillip Barfield, driving his father’s 1965 Ford stationwagon, left his home in Kamak, Illinois, en route to a high school basketball game in Joppa, Illinois. He carried six passengers: Cleotis Pounds; Ricky Johnson; claimant, Vemell Barfield; Vivian Ladd; claimant, Dorothy Barfield; and claimant, Barbara Barfield. Phillip Barfield drove east from Karnak on Illinois Route 169, then turned right, south, on to Massac County Road, designated 34-Q. 34-Q connects route 169 with West Grand Chain Road, the principal path to Joppa. This link is about three and one-half miles long and deadends at West Grand Chain, forming a T-intersection. Barfield drove the stationwagon southward along 34-Q at thirty-five to forty miles per hour.

Earlier in the day it had rained. A residue of water and, in some places, mud remained on the road. It was about 8:00 p.m. when Phillip made the turn on to 34-Q. Night had fallen. The Ford’s héadlights were on and beaming ahead.

34-Q is a straight road. It is tilted gradually downhill from its north end, Route 169, and levels off at a point about a quarter of a mile from its southern terminus, West Grand Chain Road. On the night of the accident, a thirty-six inch stop sign stood on the right shoulder of 34-Q immediately in front of the intersection of 34-Q and West Grand Chain. The stop sign faced north, and it was properly located. It was designed to protect the intersection from motorists driving south on 34-Q. No obstructions blocked such a motorist’s vision of this sign. There were no other signs on 34-Q warning of the upcoming intersection.

Claimant was aware as he traveled down 34-Q that an intersection lay ahead but he did not know exactly where it was. He reached what turned out to be the southern end of 34-Q without reducing his speed. Claimant did not see the stop sign until he was four or five car lengths from it. Upon seeing it, he applied the brakes, turning the wheel to the left at the same time. The brakes took hold but the Ford slid by the stop sign, through the intersection, across West Grand Chain Road and into a ditch on the south side of Grand Chain. Phillip, Dorothy, Barbara and Vemell Barfield were severely injured.

34-Q was, and is today, a county road. At the time of the accident, the State of Illinois was in the final stage of a project to improve the road under agreements with Massac County and the federal government. The road had already been widened and resurfaced. It is not clear what if anything remained to be done but a state engineer was still on the job. The major part of the construction work hád been performed by a subcontractor, The Midwest Construction Company, under the supervision of the State of Illinois. Although there is testimony that dirt, which may have been left from the construction work, spotted the road, it is not alleged that the State was negligent in its supervision of the road improvement or in leaving the road itself in the condition it was in on the night of the accident.

The agreement between Massac County and the State of Illinois did not expressly allocate the duty to maintain traffic safety signs on 34-Q. It is clear that before the agreement, Massac County had exclusive jurisdiction over the road with the attendant obligation to provide traffic signs. It was the county which had placed the stop sign at the southern end of 34-Q. The agreement did provide that upon completion of the improvement, the maintenance of traffic warning signs would be the responsibility of Massac County.

Claimants base their claim for compensation from the State on the theory that the State was negligent in failing to erect a “Stop Ahead” sign or some other warning sign on 34-Q to alert drivers to the T-intersection which lay ahead. Such a duty, claimants assert, existed because the State could reasonably have foreseen the conditions which caused this accident — darkness, a wet and muddy road. This duty adhered to the State even though 34-Q was a county road because the State had assumed temporary “jurisdiction” over 34-Q by undertaking to improve it.

Respondent argues that as 34-Q at all times remained a county road, never becoming part of the Illinois State highway system, no duty devolved upon the State to place and maintain traffic control devices. The State’s supervision did not create such a duty because the State which authorized the work specifically precluded that possibility. Respondent also takes the position that even if 34-Q did temporarily fall within its jurisdiction, the posting of a warning sign was not necessary to the fulfillment of its jurisdiction. The posting of a warning sign was not necessary to the fulfillment of its duty of care toward motorists traveling south on 34-Q.

In order for claimants to recover, they must prove by a preponderance of evidence (1) that respondent was negligent; (2) that such negligence was the cause of the accident in question; and (3) that claimants were in the exercise of due care for their own safety and, therefore, free from contributory negligence.

Before reaching the negligence issue, we must resolve the threshold question of whether the State owed claimants any duty of care. The State of Illinois is not liable for the acts or omissions of its political subdivisions. Schwartz vs. State of Illinois, 22 C.C.R. 739, 740 (1958). If the need for a warning sign on 34-Q in fact existed, either Massac County or the State of Illinois was obliged to meet that need.

The agreement under which the construction was performed and whereby claimants allege jurisdiction over the road temporarily passed from the county to the state is ambiguous on the duty to maintain traffic signs. However, the Federal Aid Road Act which authorized the agreement and is expressly referred to in the agreement contains the following language:

«* * *
“The local highway authorities having jurisdiction over a highway or street prior to its selection and designation as part of the federal aid secondary network shall continue to be responsible for its maintenance until such time as it had been constructed as provided herein. After a highway has been so constructed, the department is authorized to maintain it, or, with the approval of the Bureau of Public Roads, to enter into formal agreement with the appropriate officials of the county in which such highway is located, either prior to or after construction, for its maintenance at the expense of such county.”"”” Ch. 95½ Sec. 11-301, Ill. Rev Stat. (1971)

If the words of this statute are to be given their ordinary meaning, this court is compelled to hold that the state’s supervision of road construction on 34-Q did not create a duty of care to claimants, at least not on the basis of a transfer of “jurisdictional” authority over the roadway’s safety.

The above statute does not dispose of this issue. Riggins vs. State of Illinois, 21 C.C.R. 434, 438 (1953) cited by claimants, stands for the proposition that when the state is in the process of repairing a highway it is duty bound to use reasonable care in warning the traveling public of any hazard it has voluntarily created. This duty is not a statutory one, relying for its force on existing or assumed jurisdiction over the road. This is the general duty of care applicable to any road construction contractor. Ownership and jurisdictional questions are irrelevant. See also Sundin vs. Hughes, 246 N.E.2d 100 (1969) and Mammer vs. State of Illinois, 23 C.C.R. 130 1135 (1959).

A fundamental difficulty in applying the doctrine of Riggins, Mammer and Sundin cases to the facts of the instant case lies in the distinction between dangers arising from a construction project in progress which itself represents a roadway hazard (e.g., barricades, tractors, detours) and dangers which arise from a fundamental change in the nature of a roadway wrought by a completed improvement (e.g., new surface, more lanes, new intersection). In the latter example, the one which most nearly approximates the case before us, potential hazards, although non-existent but for the road construction, do not stem directly from it, and road builders, having neither the authority nor the expertise to make traffic safety policy decisions, are not held responsible for correcting them.

This distinction may carry less weight where the State is the construction contractor. Were the State to walk away from a construction project in which its participation was disproportionately large compared to that of the local jurisdictional authority, leaving hazards directly or indirectly arising from its work (Riggins vs. State of Illinois) might compel imposing liability on the State. This, however, is not the situation in the case before us. We find for the reasons discussed below that the State’s failure to pose a “Stop Ahead” sign on 34-Q did not expose motorists to sufficient danger to amount to negligence assuming even the most complete duty of care existed.

The purpose of a “Stop Ahead” sign, not surprisingly, is to warn motorists that a stop sign lies ahead. Its use is largely discretionary and it was never intended that this sign precede every stop sign in the state. Where a motorist’s view of a stop sign is so obstructed that he does not have sufficient time to stop, the use of a “Stop Ahead” sign becomes mandatory. The statute which prescribes the state’s duty to employ these signs lists the following obstructions requiring its use:

“horizontal or vertical curves, parked vehicles or foliage and highway approach speeds . . . and cases where there is poor observance of stop signs.”

The record of this case reveals that none of the above conditions existed. There was at least 1300 feet and perhaps as much as 3,000 feet of unobstructed vision to the stop sign at the T-intersection of 34-Q available for motorists traveling south. It has been held in this state that the failure to maintain a “Stop Ahead” sign where the stop sign was visible for a distance of 1,000 to 500 feet was not negligence. Shivas vs. State of Illinois, 25 C.C.R. 256, 260 (1965).

This Court has made the following statement:

“ . . . The ‘Stop Ahead’ sign in question was not mandatory within the foregoing statutory requirements, but only permissive, and need not have been placed at the location in question at all. The Court concludes it must follow that failure to maintain a sign which was not required to be placed in the first instance in no way constitutes negligence.” Shivas, supra at 260.

The primary obstruction of claimants’ view was the darkness of night. A contributing cause to their failure to stop in time was the slippery condition of the road which had become wet and muddy from an afternoon rain. Roads are improved and warning signs posted to regulate the normal flow of traffic under normal conditions of a specific area and to warn motorists of existing hazards which they cannot anticipate. The State is not obligated to warn motorists of natural hazards, the presence of which they are fully apprised of, the effects of which they are already familiar with. Darkness and rain combine to make driving hazardous by restricting visibility, turning dirt into mud and dry asphalt into slick asphalt. A reasonably prudent man is deemed to be aware of these physical processes and their resulting danger. No additional warnings are necessary. Newcomm vs. Jul, 273 N.E.2d 699 (1971). The condition of 34-Q on the night of the accident, made hazardous by the natural phenomenon, would not have required an additional warning sign if none would have been required under dry, daylight conditions. As we have stated above, no “Stop Ahead” sign was necessary under those conditions. Accordingly, claimants have failed to sustain the burden of proving negligence in failing to erect the sign.

The fact that mud contributed to claimant’s slide into the ditch, mud which represented dirt left behind by the State’s subcontractor, does not alter the result of this case. It has not been shown to this Court’s satisfaction the extent to which dirt was in fact on the road, or that it was left from the construction work, or that it represented anything more than a natural runoff from the shoulder during the rain. Resolving these questions in claimants’ favor merely shifts the focus of this case to contributory negligence. As claimants admit awareness of these conditions yet failed to take reasonable precautions in light of them, recovery would nonetheless be barred for failure to prove freedom from contributory negligence. Clark vs. Quincy Housing Authority, 229 N.E. 2d 780, Ill.App. 2nd 458.

Recovery is therefore denied.


text:
    (No. 6892
    Medart Division of Jackes-Evans Mfg. Co., Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed June 7, 1973.

    Medart Division of Jackes-Evans Mfg. Co., Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7060
    Greer Technical Institute, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed June 7, 1973.

    Greer Technical Institute, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7100
    Morrison-Rooney Associates, Ltd., Claimant, vs. State of Illinois, Department of Finance, Respondent.

      Opinion filed June 7, 1973.

    Morrison-Rooney Associates, Ltd., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7107
    Rock Island County, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 7, 1973.

    Rock Island County, Illinois, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto and the Court being fully advised in the premises;

THIS COURT FINDS that this expenditure was for the return, by the County of Rock Island, of fugitives from justice. The counties are required to travel to other jurisdictions for the return of fugitives when the fugitives have been located and apprehended in various jurisdictions throughout the country. The expenses herein reflect the expenses incurred by the County of Rock Island in sending their sheriffs and deputies to return apprehended fugitives. The investigation and reports from the Department of Law Enforcement indicate that the appropriations for this purpose were expended and a deficiency appropriation of $20,000.00 was requested. However, even before the $20,000.00 was received for reimbursing the various counties for these expenses, it became apparent that even this $20,000.00 deficiency appropriation was going to be inadequate. The original appropriation was expended and the $20,000.00 was used up also, leaving some of these expenses unpaid. Under the rules set forth in Fergus vs. Brady, 277 Illinois 272, this Court finds that inasmuch as the State was unable to anticipate the amount necessary to appropriate for this expense and that since this expenditure was one required of the State by statute, this Court awards the claimant the amount of FIVE HUNDRED SIXTY-FIVE AND 02/100 DOLLARS ($565.02).


text:
    (No. 7108
    Rock Island County, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 7, 1973.

      Rock Island County, Illinois, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto and the Court being fully advised in the premises;

THIS COURT FINDS that this expenditure was for the return, by Rock Island County, Illinois, of fugitives from justice. The counties are required to travel to other jurisdictions for the return of fugitives when the fugitives have been located and apprehended in various jurisdictions throughout the country. The expenses herein reflect the expenses incurred by Rock Island County, Illinois, in sending their sheriffs and deputies to return apprehended fugitives. The investigation and reports from the Department of Law Enforcement indicate that the appropriations for this purpose were expended and a deficiency appropriation of $20,000.00 was requested. However, even before the $20,000.00 was received for reimbursing to the various counties for these expenses, it became apparent that even this $20,000.00 deficiency appropriation was going to be inadequate. The original appropriation was expended and the $20,000.00 was used up also, leaving some of these expenses unpaid. Under the rules set forth in Fergus vs. Brady, 277 Ill. 272, this Court finds that inasmuch as the State was unable to anticipate the amount necessary to appropriate for this expense and that since this expenditure was one required of the State by statute, this Court awards the claimant the amount of SIXTY FOUR AND 33/100 DOLLARS ($64.33).


text:
    (No. 73-CC-154
    Keith N. Burton, Et Al., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 15, 1973.

    Henry W. Gauwitz, Attorney for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—199
    Lewis & Clark Community College, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 15, 1973.

    Lewis & Clark Community College, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—202
    Sargent-Welch Scientific Company, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 15, 1973.

    Sargent-Welch Scientific Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—243
    Paul Karl Riemer, Jr., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 15, 1973.

    Paul Karl Riemer, Jr., Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—254
    Lincoln Office Supply Co., Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 15, 1973.

    Lincoln Office Supply Co., Inc., Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—255
    Bi-Lingual Educational Services, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed June 15, 1973.

      Ri-Lingual Educational Services, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—256
    Xerox Corporation, Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed June 15, 1973.

    Xerox Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—285
    Tom Coady Painting Company, Claimant, vs. State of Illinois, Economic and Fiscal Commission, Respondent.

      Opinion filed June 15, 1973.

    Tom Coady Painting Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—292
    Stop and Shop, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 15, 1973.

    Stop and Shop, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—303
    Frank Cankar, Sr., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 15, 1973.

    Frank Cankar, Sr., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—322
    Urban Technical Centers, Inc., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed June 15, 1973.

    Urban Technical Centers, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—333
    Fayette County Hospital, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed June 15, 1973.

    Martin J. Corbell and George H. Huber, Attorneys for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73—CC—341
    Desaulniers and Company, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed June 15, 1973.

    Desaulniers and Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Holderman, J.

text:
    (No. 5909
    Norman G. Miller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1973.

    John B. Schwartz, Attorney for Claimant.

      William J. Scott, Attorney General; Edward L. S. Arkema, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant filed his complaint on August 26, 1970, for damages sustained on September 28, 1968, at about 12:30 a.m. as claimant was walking along the curbing adjacent to the east side of Rand Road between Windsor Drive and Clarence Avenue in Cook County, Illinois.

While walking, it is claimant’s contention that he stepped onto a sewer cover from which the center bar of grating was missing. The claimant’s left foot and leg went into the broken sewer cover causing injuries to his left leg.

The evidence shows that on the night in question, claimant was coming from work; that he was dropped off at a gasoline station a short distance from where he was injured; and that he was unable to contact his wife so she could pick him up, so he started to walk in a northerly direction on the east side of Rand Road to go to his home. The evidence is that there was not any lighting in the vicinity; that when he stepped off the shoulder onto the road, his left foot went into the sewer. After he removed his left foot and leg from the sewer, a passerby picked him up and gave him a ride home.

In the morning he was treated by Dr. Jerome Walker and x-rays of his leg were taken at the Holy Family Hospital.

Claimant’s special damages are:

Dr. Michael Ruane and Dr. Jerome Walker $121.00

Dr. Kenneth Maier 8.00

Holy Family Hospital x-rays 12.50

Claimant testified that he was off work for a period of seven weeks and one day; that his earnings prior to the injury were $143.00 per week; and that he had a total loss of earnings of $786.40. He further testified to the fact that his union paid him $85.90 per week while he was off work; and that the union had a subrogation agreement with him in the amount of $618.48 relating to any recovery by the claimant.

Frank Brancato, Jr., called as a witness on behalf of the claimant, testified that the condition of the missing grate in the sewer cover existed since March, 1968, a period of some six months prior to the accident in question.

A departmental report was filed on behalf of respondent, which admitted that the center bar of the grate was broken but denied that the respondent had any knowledge of the defective condition prior to claimant’s alleged accident. Claimant’s exhibits 2, 3 and 4 in evidence are photographs of the sewer cover in question and show a bar in the grating is missing.

Respondent bases its defense upon two propositions: (1) that the State is not an insuror of persons using its highways, and (2) that it did not have actual or constructive knowledge of the condition of this grating.

Respondent further contends that claimant failed to establish his case in that he was free from contributory negligence or that he was in the exercise of due care for his own safety.

Respondent cites many cases in support of its contention, among them Joyner vs. State of Illinois, 22 C.C.R. 213, Weygandt vs. State of Illinois, 22 C.C.R. 478, Hook vs. State of Illinois, 22 C.C.R. 627, Barrett vs. State of Illinois, 23 C.C.R. 149, and Callen vs. State of Illinois, 23 C.C.R. 172, in addition to other cases.

Testimony is to the effect that the claimant’s leg, prior to the injury, was in good shape as it had never been involved in any accident. Claimant, in his brief, cites the case of Ann Biel vs. State of Illinois, 24 C.C.R. 480. The facts in that case are greatly similar to the present case and are substantially as follows:

The claimant, while walking on 95th Street at or near 2600 West 95th Street, Evergreen Park, Illinois, stepped off the curb to enter a vehicle on the road. As she stepped, her right foot went through a broken manhole cover adjacent to the curb. Rings were missing in the cover and her right leg entered the cover. A witness testified that he knew of the condition sixty to ninety days before the accident.

In that particular case, the Court held for the claimant, stating “There is no question of the duty of the State of Illinois to maintain the manhole cover in proper repairs for the safety of persons and vehicles upon the highway.”

Claimant also cites the case of Koski, et al vs. State of Illinois, 24 C.C.R. 161. In that case, there was a substantial hole in the pavement, which was eight feet by four feet and four inches in depth. Evidence showed that the hole had been in existence for approximately one month before the accident occurred.

The Court, in passing upon the question, noted that his was sufficient evidence to give constructive notice to the respondent entitling claimant to an award.

The Court, in this particular case, also referred to the case of Visco vs. State of Illinois, 21 C.C.R. 480, which reaffirms the statement that there cannot be any hard or fast rule in determining when it can be said that the State had “constructive notice” of a dangerous condition, and each case must be decided on its own particular facts.

In his brief, the claimant takes the position that the

evidence of the claimant as to his injury, his damages and the occurrence is unrefuted by the respondent and it must therefore be taken as truth, citing the case of Gener vs. State of Illinois, 25 C.C.R. 99. In the Gener case, the claimant established a prima facie case of negligence against the respondent thereby shifting the burden of proof to the respondent. The respondent in Gener, as similarly presented in this case, offered no evidence or proof to rebut the prima facie case of the claimant. The court held an award should be made to the claimant.

In Gillespie vs. State of Illinois, 25 C.C.R. 309, it was held that respondent had constructive notice of a defective condition when the evidence disclosed that the condition had existed for four months prior to the accident.

Another case dealing with constructive notice was the case of McCanley, et al vs. State of Illinois, 25 C.C.R. 94 (1965).

There is not any evidence that there was contributory negligence on the part of the claimant, unless it can be said that the fact he was walking along a State highway in the dark is contributory negligence.

It is the opinion of this Court that the claimant has proven the necessary elements to entitle him to recovery for the damages sustained.

As to the question of damages, the total medical bills are rather nominal, and it seems that claimant’s claim of seven weeks of lost time was unwarranted by the injury sustained.

It is the opinion of this Court that claimant is entitled to an award in the amount of $1,500.00 and an award is hereby made in that amount.


text:
    (No. 6257
    Atkins, Barrow and Graham, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1973.

    D. V. Dobbins, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

The claimant filed a claim in the amount of $1,950.00 for architectural services rendered by it in connection with the construction of a building at Jackson State Hospital erected by the Illinois Building Authority. Claimant had a contract with the Illinois Building Authority to render services and was paid for all services rendered except for the additional services forming the bases for this claim.

A joint stipulation was entered into between claimant and the Assistant Attorney General consenting to an entry of an award in the amount of $1,950.00. The theory of the claimant was that the refusal for payment was solely due to the fact that funds appropriated had lapsed.

Subsequent to the signing of said stipulation, the State filed a motion requesting that the joint stipulation be disregarded and that the claim be dismissed. In connection with the motion to disregard the stipulation, it is the State’s contention that the stipulation was erroneous and argues that since the Illinois Building Authority was a “body corporate” that any action for such services would lie in an action at law and not in a claim before the Court of Claims.

In the file, there is correspondence indicating that the Department of Mental Health had actually contracted for the services for which compensation would be paid to the claimant.

This Court entered an order allowing the dismissal of the stipulation and denying the motion to dismiss and remanded it to the Commissioner for the sole purpose of determining whether the services were rendered to the Illinois Building Authority or to the Department of Mental Health. Subsequent to said decision, the Commissioner held a hearing and made a report of proceedings.

It appears from the record that after the original contract was entered into with the Building Authority, that the Department of Mental Health requested certain changes and that these changes were authorized by the Supervising Architect.

It further appears from the record that said changes were made satisfactorily as far as the Department of Mental Health was concerned.

The record discloses that there was a meeting held on April 25,1967, at which meeting were the representatives of the Department of Mental Health, the Jacksonville State Hospital, the Department of Supervising Architect and representatives from the claimant. The changes suggested were concurred in by the Department of Supervising Architect’s office, the changes were made, and the structure completed according to the changes.

The record discloses that the goods or services were ordered by authorized personnel in the Office of the Supervising Architect and the Department of Mental Health, and that the services were properly performed. The record further discloses that the Office of the Supervising Architect requested that this fee be paid since it had been earned by the associate architect, and the Department of Mental Health agreed with said request.

It is therefore clear that the services rendered by the claimant were services requested by the representatives of the State and the work was accomplished in a satisfactory manner.

Award is hereby made to the claimant in the amount of $1,950.00.


text:
    (No. 6291
    Nile Marriott, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1973.

    John E. Howarth, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant seeks to recover the sum of $2,980 for services and materials rendered to the Department of Law Enforcement.

The above amount is for two separate and distinct transactions — one for $1,495 and the other for $1,485.

The evidence discloses that the Department of Law Enforcement had entered into a contract with the claimant for certain work to be done in its office. The contract was for $26,533. All of this work was to be done at the Illinois State Police Headquarters on the fourth floor of the Armory Office Building, Springfield, Illinois.

After the work started, it was discovered that the architect for the State had inadvertently left out the work to be done in the removing of one existing door and frame, which necessitated the contractor closing up the doorway which was in a wall requiring masonry work. The bill for these services was $1,485.

The other changes which were made included the installation of two 14 gauge steel frames, providing electrical conduits, piping and carpentry work, providing cork in the north wall of the Assistant’s office, in the west wall of the Superintendent’s office, in the south wall of the file enclosure by the receptionist’s desk, and to carpet and paint all walls and ceilings in the Legal Counsel’s office. Two solid oak doors were also installed for which no charge was made. The bill for these services was $1,495.

Request for payment of these two changes was made and payment was rejected by the State on the grounds that the contract was subject to Article 23 of the General Conditions, which is included in all contracts for the State for over $5,000. It appears that in all contracts of over $5,000, competitive bids must be taken to comply with the Illinois Purchasing Act.

For projects between $1,500 and $5,000, the using agency, with the aid of the Architect’s office, requests bids from two or three contractors and is required to place a request for public bids in the local paper.

For projects under $1,500, the using agency is required to get one bid and send it to the Architect’s office for review.

A witness for the respondent testified that the written record in his office did not indicate the changes made by claimant for which he is seeking payment and that the only payment requisition, which was received on September 11, 1970, did not contain the subject matter of these claims.

The witness for the State in charge of these matters stated that it normally takes a month to six weeks to put through a change order. He further testified that his record shows that the requisitions for payment of these two changes were sent to his office for processing on June 30, 1971, and July 1, 1971.

Claimant relies on the Departmental Report filed as prima facie evidence that the work was necessary, performed in a satisfactory manner, for a reasonable price, and that no payment has been made.

The State cites numerous cases to the effect that an action will not lie against the State on quantum meruit for services rendered.

Among them are numerous Court of Claims cases, the last ones being Schutte, et al vs. State of Illinois, 22 C.C.R. 591, Fergus vs. Brady, 277 Ill. 272, Johnson County Savings Bank, et al vs. City of Creston, 212 Iowa 929, 87 ALR 926, and United States Rubber Products vs. Batesburg, 110 ALR 144.

The respondent also cites the case of Illinois Central Railroad Co. vs. State of Illinois. In this case, the State of Illinois employees authorized the Illinois Central Railroad Company in writing to make certain repairs to the tracks on the grounds of the Kankakee State Hospital, and it appears that this had been the custom for many years. The Court, in passing upon this case, refused to allow recovery by the claimant, stating that a contract entered into by persons not authorized by law to bind the State and by persons not adhering to procedures prescribed by statute, such as having the contract approved “by the State architect or his consulting engineer and by the board, if they exceed in value one thousand dollars, and by the fiscal supervisor, if they exceed in value two hundred dollars” is not allowable.

It is claimant’s contention that this work was done by the verbal authorization of agents of the State and that he was assured by the State’s project coordinator that the projects were authorized.

Upon examination of the testimony of the various individuals of the State dealing with the claim in this matter, the following facts are disclosed.

Captain Denzil G. Wills, who was project coordinator for the Illinois State Police, testified that the architect had inadvertently left out the plans to fill in a door between Rooms No. 2 and No. 3, which was done. His testimony is to the effect that he understood the contractor was authorized to make these changes and he assumed the necessary changes had been made.

As to the other changes that were made approximately two months later, he stated that there had been frequent bombings around the country, and as this was State Police Headquarters, they wanted to increase the security in the area, and in furtherance of this situation, they requested the contractor to put in electrical wiring and conduits, and also two solid oak doors. It is his testimony that this was the Central Office of the State Police where all the files, records and equipment, etc. were kept, that there had been attacks made upon other Police Headquarters in the State, that it was their desire to protect the record system, and that they desired later to put in security equipment which would require the electrical conduits that were put in at that time. He further testified that if they were not put in at that time, it would necessitate considerable expense and much delay in the tearing up of the area in question and redoing the work.

He further testified that two oak doors were put in at their request, which was not in the original contract, and that there was no charge made for these doors. He stated that these changes were made after a meeting between the Major and the Superintendent and that they had other plans made but could not complete the whole project in this fiscal year. Since they did not have sufficient money to do everything desired, they wanted to do as much as they possibly could while this contractor was working there. The witness also stated that Major Walter A. Eichen desired to have security doors put in so that eventually they could install closed circuit T.V., and that if that was to be done, it was imperative that the work done by the claimant be done at the time it was done.

Sgt. Robert H. Klemm also testified in this matter. His testimony was to the effect that the architect made an error in leaving out the door which was later closed in and that it was necessary that this be done. He also testified that there were two solid oak doors added and that two doorways were framed in with heavy gauge steel to accommodate other doors which were to be put in later to increase security for the Police Department. This witness also testified that there had been several attempts to bomb police facilities in the State, that some were bombed, and that it was desirous to make these changes for additional protection. He also stated that he discussed this matter with Supt. McGuire, Major Eichen, and Mr. Sheehan, who was the building construction inspector for the program and worked for the Department of Architecture and Engineering for the State of Illinois. He stated there was a conversation between Mr. Dunlap and the contractor relative to these changes. Mr. Dunlap, who was the project coordinator between the Architect and Engineering and the State Police, was in charge of this particular project. This witness also testified that it was completed in a good workmanship-like manner and that it was necessary for his department to have this done during the course of the work.

Mr. Sheehan testified on behalf of the State that he was the building construction inspector and was employed by the office of Supervising Architect. He further testified that he was aware certain changes had been made in the work done in reference to the contract. The first change that he testified to was the closing of the doorway which had been left out, that he had a conversation with Mr. Dunlap and Mr. Bill Wood, who was the superintendent for Nile Marriott. He testified that the Marriott concern was authorized to go ahead and change the door after a discussion with Mr. Dunlap. He further testified to the second change which no one had previously thought about. He stated that Mr. Dunlap was the individual who had authorized the change. He further testified that he assumed the necessary change orders had been put through and was quite confident they had been. He stated that he didn’t like them going ahead unless he specifically had a change order. He further testified that the work was completed in a good workmanship-like manner and that the materials were the standard type of materials used for construction. On cross examination, he also testified to the fact that cork was inserted in the wall behind the secretaries’ office so that it would have a quieting effect, and that all of the changes were necessary. He stated that his reasons for the changes being necessary were money, time and from a security standpoint. He also testified that he was not sure whether he had seen any written change order.

Mr. Clarence Burkhart testified for the respondent that he was Project Administrator in the office of Supervising Architect and that he was familiar with the project. He testified as to the procedure necessary in making changes in contracts which agreed with the position of the respondent in this particular case. He further testified that the changes made were not sent to his office for review.

Mr. Marriott, the claimant who testified in this case, said that in his conversation with Mr. Dunlap, Mr. Dunlap stated that he would start his portion of the paper work and instructed the contractor to go ahead with the work.

It is clear from the evidence in this case that the claimant did the work at the direct request of the respondent and that their agent in charge, Mr. Dunlap, had indicated that he would see that the necessary paper work was done.

It is equally clear from the evidence that the changes were necessary and that by making these changes at the time they were made, the State was saved a very considerable amount of money.

It is further clear from the evidence in this case that these changes were, in the testimony of the respondent’s own witnesses, a matter of emergency, particularly for security purposes.

It also appears in the record that there was a sum of $5,804.32 that was available for payment of this particular item.

In the case of Inskip vs. Board of Trustees, University of Illinois, 187 N.E. 2d 201, 26 Ill. 2d 501, the Court goes into considerable discussion as to the intent of the legislature and in the interpretation of the Purchasing Act. It was the opinion in that case “that the General Assembly did not intend to designate principals of competitive bidding as the only economical procurement practice.” In Inskip, supra, the court construed the provisions of the Act and were called upon to determine the intention of the legislature when it adopted the Illinois Purchasing Act of 1957. In construing the statute, they made specific findings as to the intention of the legislature which, claimant argues, is controlling here; that: “ . . . the Purchasing Act is not violated when a state agency, in good faith and without intent to evade or avoid the provisions of said act, determines that it is more economical to purchase equipment and materials in individual units of not more than $1500 in cost, and does so, without regard to the total of such purchases, so long as such purchases are charged to the proper appropriation.”

Claimant also cites the case of Elevator Manufacturing of America vs. State of Illinois, 23 C.C.R. 98. In this case, claimant filed a claim against the State for labor and materials for removing, repairing and reinstalling a burned out motor for an elevator in the Chicago State Hospital, Chicago, Illinois. In that case, as in the present case, there was a departmental report to the effect that the claimant did remove, repair and reinstall the motor, the work was necessary, the cost was reasonable, and the work was excellent. The Court held that this was an emergency matter and therefore should be paid.

It appears to the Court that this was an emergency matter, that the work was done well, the cost was reasonable, the materials were the usual standard, that it was beneficial to the State to have the work done at this time rather than at a later time at a considerable cost, and that there was a prime need for speed in the completion of this work for security purposes.

This Court is therefore of the opinion that the claimant did not violate the Illinois Purchasing Act, Chapter 127, par. 132.5; 132.6; 132.10 because the work for which the claimant seeks an award was done at two different times, with an interval of approximately six weeks between them, and with each requisition being under $1,500.

It is further held that purchases done in good faith and without intent to evade or avoid the provisions of the Illinois Purchasing Act are not in violation of said Act when the State agency determines it is more economical to make purchases in individual units of not more than $1,500 so long as such purchases are charged to the proper appropriation. Inskip vs. Board of Trustees, University of Illinois, 187 NE 2d 201, 26 Ill. 2d 501.

These facts, connected with the verbal authorization to proceed with the work and the emergency that presented itself at this time, are, in the opinion of the Court, sufficient to entitle the claimant to an award in the amount of $2,980.

An award is hereby entered for said amount.


text:
    (No. 6854
    Jacqueline Bynum, Claimant, vs. State of Illinois, Department of Labor, Respondent.

      Opinion filed June 15, 1973.

    Kleiman, Cornfield and Feldman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 6960
    James C. Moore, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 15, 1973.

    James C. Moore, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-63
    Roger L. Curry, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 20, 1973.

    Roger L. Curry, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-236
    Edward E. Baker, Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 20, 1973.

    Edward E. Baker, Claimant, pro se.
    . William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-248
    Phillips Petroleum Company, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed June 20, 1973.

    Phillips Petroleum Company, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-253
    Lincoln Office Supply Company, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 20, 1973.

    Lincoln Office Supply Co., Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-260
    Harold L. Huffman, President, Regional Board of School Trustees, Vermilion County, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed June 20, 1973.

    Harold L. Huffman, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-263
    Charles Remole, Member of Regional Board of School Trustees, Vermilion County, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed June 20, 1973.

    Charles Remole, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-264
    J. Cole Morton, Member of Regional Board of Trustees, Vermilion County, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed June 20, 1973.

    J. Cole Morton, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-265
    Dwight B. Leigh, Member of the Regional Board of School Trustees, Vermilion County, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed June 20, 1973.

    Dwight B. Leigh, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-266
    Jay Prillman, Member Regional Board of School Trustees, Vermilion County, Claimant, vs. State of Illinois, Superintendent of Public Instruction, Respondent.

      Opinion filed June 20, 1973.

    Jay Prillman, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-272
    St. Mary Hospital, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed June 20, 1973.

    St. Mary Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-273
    St. Mary Hospital, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed June 20, 1973.

    St. Mary Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-286
    Polaroid Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 20, 1973.

    Polaroid Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-304
    Frank Cankar, Jr., Claimant, vs. State of Illinois, Department of Transportation, Respondent.

      Opinion filed June 20, 1973.

    Frank Cankar, Jr., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-306
    Acan X-ray, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 20, 1973.

    Acan X-ray, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-344
    George C. Potter, Claimant, vs. State of Illinois, Department of Insurance, Respondent.

      Opinion filed June 20, 1973.

    George C. Potter, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-345
    George Zwicky, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 20, 1973.

    George Zwicky, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-357
    Foster C. McGaw Hospital, Loyola University of Chicago, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 20, 1973.

      Foster G. McGaw Hospital, Loyola University of Chicago, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-365
    Passavant Memorial Area Hospital Association, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed June 20, 1973.

    Passavant Memorial Area Hospital Association, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 73-CC-366
    Passavant Memorial Area Hospital Association, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed June 20, 1973.

    Passavant Memorial Area Hospital Association, Claimant, pro se.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7104
    Evanston Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed June 20, 1973.

    Evanston Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7109
    Weeks Auto Seat Covers, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed June 20, 1973.

    Weeks Auto Seat Covers, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


text:
    (No. 7111
    John Freeman, Jr., Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed June 20, 1973.

    John Freeman, Jr., Claimant, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.


author: Holderman, J. Judge Burks

text:
    (No. 5583
    Jeffrey B. Serage, Claimant, vs. The Board of Trustees of the University of Illinois, Respondent.

      Opinion filed June 21, 1973.

    Glenn & Logue, Attorney for Claimant.
    William E. Larrabee, Attorney for Respondent.
   Holderman, J.

On Sunday, January 14,1968, at about 9:30 a.m., claimant slipped and fell a short distance east of the Commerce West Building on the University of Illinois campus.

The claimant was 28 years of age, a student at the University of Illinois, and was an administrator of the Illiac Four program.

Claimant alleges that as a result of the fall on January 14,1968, he injured his left knee. He also alleges that he fell again on February 29, 1968, on the campus and again injured the same knee.

Claimant alleges that respondent was guilty of negligent and careless misconduct in one or more of the following ways:

A. Negligently and carelessly failed and omitted to remove ice from the walks and approaches to the University Building hereinbefore referred to after the same had been there for an unreasonable length of time when the Defendants knew or in the exercise of due care should have known that the same was heavily travelled by students and teachers and some of them might fall and be injured thereon.

B. Negligently and carelessly failed and omitted to warn the Plaintiff of the dangerous condition thereof after said ice had been on the sidewalk for an unreasonably long period of time and after the Defendant knew or in the exercise of due care should have known that the same was dangerous to people, students and teachers travelling thereon.

C. Negligently and carelessly permitted ice to accumulate unnaturally at said place after they knew or in the exercise of due care should have known that the area where the ice accumulated was heavily travelled and someone walking thereon might be injured.

The record discloses that on the day in question snow was falling and had fallen on several preceding days. John W. Wilson, meteorologist for the University of Illinois, introduced the records for January 12th, 13th and 14th and also for February 29th. On January 12, 1968, the temperature was below freezing and precipitation was l/10th inch and at 7:00 a.m. there were six inches of snow on the ground. At 7:00 a.m. on January 13,1968, there had been precipitation of 5.4 inches of snow, and there was then nine inches of snow on the ground. On January 14, 1968, three inches of snow fell, and at 7:00 a.m. there were 13 inches of snow on the ground with below freezing temperatures, the high temperature for that day being 32°.

On February 29, 1968, there was only a trace of snow with temperatures below freezing all day.

Bruce Johnson, supervisor of ground maintenance at the University of Illinois, testified that he had held that position since 1967 and that his duty was ground maintenance which included clearing of the campus area of snow and ice and that he had 44 or 45 employees engaged in that work. He testified that they use Ford industrial tractors with blades or brooms and also garden type tractors and sand spreaders. He also testified that he had some 650 acres of campus to take care of and that the area where the accident occurred was under his control. He further testified that while Saturday and Sunday are not usually working days for his maintenance crews, they did work on Saturday, January 13,1968, for a period of 9 hours and they worked on Sunday, January 14,1968, for a period of 7 hours, and they could cover the campus area in approximately 3 hours.

He testified that on February 28th, the crew came to work at 5:30 a.m. and on February 29th, they came to work at 8:00 a.m.

Claimant testified that after he fell on the 14th day of January, he was taken to McKinley Hospital where he was treated by Dr. Joseph Stilwell. Dr. Stilwell testified that he first saw the claimant on January 15th at which time he was informed by the claimant that he had slipped on the stairs on the 14th of January. This was denied by the claimant in cross-examination and he testified that he referred to an ankle he had hurt on the stairs.

Claimant was also treated by a Dr. Ross, who was informed by the claimant that he had been injured on January 14th and that he had again fallen on February 29th.

It is clear from the evidence that there was a very heavy fall of snow in the area where the accident took place, that it was an area of heavy traffic used by the 32,000 students of the University of Illinois, and that part of the snow had been packed into ice, and the areas where he fell on both occasions were level and the only reason he fell was because of the ice and snow.

The claimant contends that the ice was present on the approach to the Commerce West Building and had been for several days and that it was an unnatural accumulation due to the fact that the sidewalk over which the ice formed was heavily shaded by the buildings in the area so the sun never reached the ice. He contends that since it was an unnatural accumulation, the University of Illinois and the State of Illinois are consequently liable.

The argument that the snow and ice in an area shaded by a building is an unnatural condition does not seem to be justified by any decisions.

The claimant, in order to effect a recovery, must prove that the State was negligent and that as a result of the negligence of the State and without any contributory negligence of the claimant, the injury complained of occurred.

It does not appear from the evidence that the State was negligent in any manner, shape or form. On the contrary, it appears that the State used extraordinary diligence in removing the snow and ice, particularly when it is shown that the whole area could be cleared in approximately 3 hours, but even with the diligent effort made by the State, during a heavy snowstorm it is impossible to keep an area completely free of snow and ice. To impose upon any municipality, university or property owner the impossible burden of keeping their property free of snow and ice at all times would impose a burden that would quickly put them all out of business.

Without passing on the question of whether there was snow and ice on the area where the accident occurred, and the claimant an individual of mature years who still ventured forth upon it and who might consequently be guilty of contributory negligence, we believe it is not necessary to pass upon the possibility of any contributory negligence factor.

It is the law of this State that the mere presence of snow and ice accumulating because of natural causes is not such negligence as to make the owner of the property in question liable. Zide vs. Jewel Tea Co., 39 Ill. App. 2d 217, 225 (1963).

We believe that the points involved in this case are more fully set forth in the case of Dreikers vs. State, 23 C.C.R. 85, 89 (1959) where the following language is used:

“It is common knowledge that the northern half of Illinois is subject to miserable and many times dangerous conditions for four or five months of the year. Sleet, ice and snow make walking or driving a genuine hazard. In spite of reasonable efforts made to remove these hazards, many people are injured through no fault of their own.”

Since the evidence introduced in this case does not support the charge of negligence, the only way to account for the misadventure is to accept it as an unfortunate accident.

It is the opinion of the Court that the claimant having failed to sustain the burden of proof necessary to maintain this action at that time, claim is denied.

An award to claimant is therefore denied.

(No. 5583)

Supplemental Opinion

Judge Burks

concurring.

I join the opinion of Judge Holderman and am adding these comments to cite a very recent opinion of the Illinois Appellate Court which I believe strongly supports the decision of our court in this action.

I refer to the case of Davis vs. City of Chicago, 289 NE 2d 250. Since volume 289 has not yet been published, the opinion is now found in the NE 2d “Advance Sheets” (Illinois edition) dated December 20, 1972. This Davis decision, entered on October 20,1972, may be regarded as a “landmark” case, and I felt it would be useful to have its key points of authority included in our published opinion.

The facts in the Davis case were strikingly similar to the case before us. There were six or seven inches of snow on the sidewalk at 59 West Monroe Street where the plaintiff (Davis) slipped, fell and broke his kneecap. There was also a light angle of incline in the sidewalk at this point (an incline of 5.7°).

In the trial court, the jury found that negligent maintenance of the sidewalk on the part of the City proximately caused plaintiff’s injury, and that plaintiff was not contributorily negligent. The Appellate Court reversed the jury’s verdict and the $25,000 personal injury judgment for Davis against the City. In so doing, the court stated the following rules of law which I feel are applicable to the case we have just decided:

“[1] The law does not require that each municipality keep all sidewalks in perfect condition at all times, nor does the law impose the duty to correct slight variations from level or other minor defects. See Arvidson vs. City of Elmhurst, 11 Ill. 2d 601, 604, 145 N.E.2d 105.

“[2] A municipality is not liable for condition of its sidewalks caused by the natural accumulation of ice and snow, provided the walk is properly constructed and no other defect is shown.

“[3-4] For pedestrian to recover against municipality for injuries sustained in fall on sidewalk, a defect in sidewalk as a proximate cause is essential, and recovery will be denied where accident is caused solely by naturally icy surfaces.

“[5] Test to be applied in determining municipality’s negligence with respect to maintenance of sidewalk is whether a reasonably prudent man would anticipate some danger to persons walking upon the sidewalk and take action to avoid it.”