text:
    (No. 78-CC-1044
    Moline Heating & Construction Company, Claimant, v. The State of Illinois, Respondent.

      Order filed July 8, 1981.

      Order on denial of motion for reconsideration filed September 21, 1981.

    Bozeman, Neighbour, Patten & Noe, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is an action, brought by Moline Heating & Construction Company based on a contract to furnish mechanical work in connection with construction of a dietary building at the East Moline State Hospital, East Moline, Illinois. The contract was dated May 29, 1968, and expressly incorporated a letter-written by Claimant and dated May 20, 1968. The Claimant seeks cancellation charges as set forth in said letter.

Claimant filed an action in this Court during the month of October 1971, as Claim No. 6312, which was dismissed on motion of Respondent, on the theory that the Court had no jurisdiction for the reason that IBA was a “body corporate and politic.”

Claimant then proceeded to file suit in the circuit court of Cook County, as Cause No. 72 Ml-134382, and subsequent thereto, on March 22, 1974, judgment was entered in favor of Claimant and against IBA in the amount of $12,664.59, which said sum included the amount of $10,349.00 in cancellation charges together with the further sum of $2,315.59 as interest, assumedly to the date of judgment. Subsequent thereto, on August 27, 1974, IBA made a partial payment of $6,000.00 towards satisfaction of said judgment and no further payments were ever made.

Thereafter the Court having held that IBA was a State agency and, therefore, within the jurisdiction of the Court of Claims, Claimant again moved to assert its claim in the Court of Claims, setting out its claim under two separate counts.

Count I is based on the judgments entered in the circuit court of Cook County, which, with interest added on the unpaid balance up to and including March 5,1980, and after allowance of the sum of $6,000.00 previously paid on said judgment, amounts to the sum of $9,258.67.

Count II is based on the theory that the EBA had a contractual obligation as hereinbefore recited and seeks damages in the amount of $8,841.99, which include interest to March 5, 1980, computed at the rate of 5% per annum, pursuant to section 2 of “An act in relation to the rate of interest and other charges” (Ill. Rev. Stat., ch. 74, par. 2), which provides for recovery of interest.

The first issue is what effect, if any, the judgment rendered in the circuit court of Cook County, has on this Court. Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, was also a contract action against the IBA. That case was also tried in the circuit court of Cook County and a judgment was entered against the defendant. The appellate court held that the circuit court lacked jurisdiction and therefore the judgment entered therein was a nullity. Likewise, in the instant case, the judgment entered in the circuit court of Cook County was rendered by a court without jurisdiction and was a nullity and held for nought.

Turning to count II of Claimant’s complaint, the Court finds in favor of the Claimant. The IBA agreed to pay a total of $10,349.00 if it did not exercise certain options. There is no question these options were not exercised. The Respondent has previously paid $6,000.00 leaving an outstanding balance of $4,349.00 and an award is entered in said amount.

In response to Claimant’s request for prejudgment interest pursuant to section 2 of “An act in relation to the rate of interest and other charges” (Ill. Rev. Stat., ch. 74, par. 2), it has been consistently held that the foregoing statute has no application to claims against the State. (Stevens v. State, 31 Ill. Ct. Cl. 519; Fruin Colnon Contracting Co. v. State, 26 Ill. Ct. Cl. 138.) Claimant’s request for an award of interest is therefore denied.

Claimant is hereby awarded the sum of four thousand three hundred forty nine ($4,349.00) dollars.

ORDER ON DENIAL OF MOTION FOR RECONSIDERATION

Poch, J.

This cause comes to be heard on the motion of Respondent for reconsideration of the Court’s order of July 8,1981, Claimant having filed its response to Respondent’s request for reconsideration, due notice having been given, and the Court being fully advised in the premises hereby;

The Court having reviewed the briefs of the parties finds no basis to reconsider the order of July 8, 1981.

It is hereby ordered that Respondent’s motion for reconsideration of the order of July 8, 1981, be and the same is hereby denied.


source: Caselaw Access Project

author: Roe, C.J.

license: Public Domain

text:
    (No. 78-CC-1090
    Royal Globe Insurance and Dennis and Sarah Adams, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 1, 1982.

    James B. Bleyer, for Claimants.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This action is brought by Claimants, Royal Globe Insurance Company, Dennis Adams and Sarah Adams, against Respondent, State of Illinois, for damages to property sustained by Claimants. This case sounds in tort and is brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(d)), and section 1 of “An Act concerning damages caused by escaped inmates of . . . institutions over which the State has control” (Ill. Rev. Stat., ch. 23, par. 4041).

Claimants allege that their property was damaged by misconduct of inhabitants of “half-way house”, which is a correctional facility operated by the Respondent’s Department of Corrections in Carbondale, Illinois. It was alleged that the losses occurred on March 12, 1978, between the hours of 5:00 p.m. and 10:00 p.m. when persons subject to the control of the Illinois Department of Corrections entered the home of Dennis Adams and Sarah Adams gnd destroyed the contents thereof, said damages amounting to $3,963.38.

Claimant is the insurer for Dennis Adams and Sarah Adams, who are homeowners in the Carbondale area. Claimant is subrogated to the rights of their insured against the parties responsible for the theft and destruction of the contents in the Adams’ home.

Claimant has taken the position that the State of Illinois is liable for the acts of the inhabitants of “halfway house” in Carbondale under the theory that the duty owed by the State to control miscreants who are in the custody of the State is a non-delegable duty and that the State’s responsibility is set forth in section 1 of “An Act concerning damages caused by escaped inmates of . . . institutions over which the State has control.” The statute reads in part as follows:

Whenever a claim is filed with the Department of Mental Health and Developmental Disabilities, the Department of Children and Family Services or the Department of Corrections for damages resulting from personal injuries or damages to property, or both, or for damages resulting in property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable, penal, reformatory or other institution over which the State of Illinois has control while he was at liberty after his escape, ” (emphasis supplied).” Ill. Rev. Stat., ch. 23, par. 4041.

Respondent argues that the above statute requires, in order for Respondents to bear the liability for loss or damage, that the miscreants have “escaped” and have caused the damage while “at liberty after (their) escape.” Respondent argues that in the case at bar there is no evidence that “anyone escaped from anywhere.” We do not accept this argument.

It is acknowledged that the persons responsible for this damage were inhabitants of a “half-way house” operated under contract by Hillhouse, Inc., with the Illinois Department of Corrections. We do not believe that the liability intended to be placed upon Respondent by the Illinois legislature pursuant to the above-quoted section can be escaped by delegating the responsibility to operate institutions of the Illinois Department of Corrections to “independent contractors” such as Hill-house, Inc. Furthermore, we cannot accept the argument of Respondent that inhabitants of institutions controlled by the Illinois Department of Corrections should not be said to have “escaped” or are “at liberty after escape” within the meaning of the above statute when such inhabitants engage in the commission of serious crimes such as the invasion and destruction of the home of Dennis Adams and Sarah Adams. Clearly, though these inmates were granted certain unrestricted liberties as residents of a half-way house, it should not be contemplated that they were within the bounds of their legitimate freedoms while perpetrating the acts resulting in the damage to Claimant’s insured.

Respondent argues that the Court has held, under the Parental Responsibility Law (Ill. Rev. Stat., ch. 70, par. 52) that the Department of Corrections could not be held liable under the reasoning of Vallery v. State of Illinois, 31 Ill. Ct. Cl. 187. In the Vallery case, supra, it appeared that Claimant’s property was damaged by a ward of the Illinois Department of Children and Family Services, who was a foster child in Claimant’s home. The child had been placed in Claimant’s home by order of the Juvenile Division of the Cass County circuit court pursuant to the provisions of the Juvenile Court Act. This Court held that since the Department of Children and Family Services was given custody of the minor by a circuit court under the provisions of the Juvenile Court Act, the Department was not subject to the liability imposed by the Parental Responsibility Law, and that the Department was not liable at common law for the reason that no negligence was shown.

Claimant does not seek relief in the case at bar under the Parental Responsibility Law (Ill. Rev. Stat., ch. 70, par. 52), and the exclusion set forth therein with respect to minors subject to the provisions of the Juvenile Court Act does not apply.

It appears in the case at bar that the miscreants who caused the damage to Claimant’s insured had in fact “escaped” from the legitimate constraints imposed on them pursuant to the regulations and directives of the Illinois Department of Corrections when burglarizing and damaging the home of Claimant’s insured. Therefore, the damage to Claimant’s insured was caused while the miscreants were “at liberty” after having exceeded the legitimate constraints imposed by the Illinois Department of Corrections on their activities.

It is hereby ordered that Claimants be, and hereby are, awarded the sum of $3,963.38 as their damages in this cause sustained.


text:
    (No. 78-CC-1181
    Geraldine Blevins, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 5, 1982.

    Shearer, O’Brien, Blood, Agrella & Boose (Michael O’Brien, of counsel), for Claimant.
    William J. Scott, Attorney General (Richard Grossman and Paul Sengpiehl, Assistant Attorneys General, of counsel), for Respondent.
   Roe, C.J.

Claimant has brought this action alleging injury to herself as a result of an attack upon her by two inmates of the St. Charles Boys School who escaped from that school immediately prior to the attack and were arrested by the St. Charles Police immediately thereafter.

Shortly after 11:00 p.m. on December 15, 1977, Claimant was attacked in the vestibule of her apartment building by two escapees from the St. Charles School for Boys in an attempted robbery. She was struck on the head a few times with an object wrapped in a towel. She fell to the floor and was then hit in the neck. After that the boys fled.

Respondent produced no evidence to show that it was not negligent in permitting the escape. Therefore, under the rulings of this court in Kendrick v. State (1969), 5735, U.S. Fidelity and Guaranty Company v. State, 23 Ill. Ct. Cl. 188, and Devore v. State (1979), 76-CC-0195, the presumption of negligence arising from the escape stands unrebutted.

Total medical expenses were $170.00 of which Claimant paid $45.00. As a result of the incident she sustained severe pain and suffering. At the time of the hearing two years later she testified she was still experiencing headaches which she attributed to the blows to her head. As a result of the beating Claimant’s ear and jaw were swollen. She suffered severe pain and was unable to work for a week. However, she suffered no loss of income as a result. No doctor, neurologist, psychologist, or other expert testified as to the extent of the injuries. Based on the record, we hereby award Claimant the sum of $1,000.00 (one thousand dollars and no cents).


text:
    (No. 78-CC-1183
    Walsh Bros., Inc., an Illinois Corporation, Claimant, v. The State of Illinois, Respondent.

      Order filed June 15, 1982.

    O’Brien, Cary, McNamara, Scheuneman & Campbell, Ltd., for Claimant.
    Saul R. Wexler, Special Assistant Attorney General, for Respondent.
   Roe, C.J.

This cause coming on to be heard on the stipulation of the parties hereto, the Court having reviewed the matter and having been fully advised in the premises;

It is hereby ordered that the stipulation of the parties be, and the same hereby is, entered and Claimant is herewith awarded the sum of one hundred seventy-five thousand ($175,000.00) dollars in full and complete satisfaction of all claims which are the subject of the instant cause.

It is further ordered that any and all claims which the Claimant had, has, or may have against the architects Lowenberg & Lowenberg, their agents and employees, are hereby assigned and subrogated to the Respondent, State of Illinois.


text:
    (No. 78-CC-1313
    Cecil O. Gable, Claimant, v. The State of Illinois, Respondent.

      Order filed December 8, 1981.

    Cecil O. Gable, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel) for Respondent.
   Roe, C.J.

This cause coming on to be heard on the Respondent’s motion to dismiss and the Court being fully advised in the premises finds that the Claimant’s position herein is contrary to the policy of the Department of Personnel as set forth by the director of personnel through his subordinates and which policy has been longstanding (since 1957). That.policy, which this Court fully supports is basically as follows:

1. International unions submit contracts to the Department of Labor.

2. The Department of Labor applies its time stamp . upon receipt of union contracts.

3. The Department of Labor forwards time stamped copies of contracts to the Department of Personnel.

4. The Department of Personnel edits the contracts to remove “pyramid” items and adjusts the hourly rates accordingly.

. 5. Prevailing rates which are time stamped before midnight of a quarter and which have contractually effective dates on or before said quarter are regarded to be effective on that quarterly date (January 1, April 1, July 1, October 1).

6. Prevailing rates which are time stamped after midnight of the appropriate quarter are held for release on the next quarter.

Example: A negotiated effective rate is April 1st. The time stamp is April 2nd. Release date by the Department of Personnel will be July 1st.

Because of the large number of employees involved in the many, many departments that comprise the State of Illinois, it is essential that the State have a consistent policy as regards employee compensation. It is the policy of this Court to support the director of personnel in the exercise of his prerogatives granted him by the legislature in the Personnel Code, which prerogative was exercised in the promulgation of the Rules set forth above.

It is therefore the finding of this Court that the claim herein presented is contrary to the policy set forth by the director of personnel and this claim must be and is hereby denied.


author: Poch, J.

text:
    (Nos. 78-CC-1375 through 78-CC-1380 cons.
    Jerome McCarthy, James Kelleher, Patrick J. Ruddy, Jeffrey Kueltzo, Robert Motto, and Daniel Dixon, Jr., Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 18, 1981.

    Jerome McCarthy, James Kelleher, Patrick J. Ruddy, Jeffrey Kueltzo, Robert Motto, and Daniel Dixon, Jr., pro se, for Claimants.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

These are consolidated claims for back salary for the period of December 1, 1976, through June. 30, 1977. The facts are not in dispute and are summarized as follows: All Claimants were employed as investigators for the Illinois Department of Revenue prior to 1976. In that year the Department of Revenue decided to reorganize some investigatory functions which would result in a reduction in the classification grade of the Claimants. The Claimants challenged the classification plan before the Civil Service Commission which resulted in an unfavorable decision to the Claimants. The Claimants, through counsel, then filed a complaint for injunctive relief in the circuit court of Cook County. After hearing the parties the circuit court entered a temporary restraining order restraining the Department of Revenue from putting the reorganization into effect. As a result thereof each of the Claimants remained in their classification as investigator and was paid for that classification.

A settlement agreement was entered into between each of the Claimants and the Department of Revenue whereby the Department of Revenue agreed that each of the Claimants would be reassigned as though each of the contested reductions never occurred. In addition each of the Claimants was offered prospective benefits and/or sálary-step increases. The Department agreed that retroactive salary adjustments, in an amount to be computed by the Department of Personnel, would be paid as if each Claimant had received normal step increases at their respective grades and had remained in the same grades prior to reclassification.

Subsequent thereto, in August 1978, the chief personnel officer of the Department of Revenue advised each Claimant that in order to receive the monies due for the period" of December 1, 1976, to July 1, 1977, a claim would have to be filed in this Court due to the lapse of the appropriation prior to July 1, 1977. Each Claimant was paid for back pay subsequent to July 1, 1977, at the classification rate for each Claimant. The Department agreed that each Claimant was entitled to back pay from December 1, 1976, to July 1, 1978. The only period in question before the Court is the period from December 1, 1976, to July 1, 1977. This period was included in the settlement agreement between the parties, and was not paid because it involved the fiscal period prior to the settlement agreement being executed.

The Respondent argues that the pay plan between the Department and Claimants constitutes a claim for additional retroactive wages which would be in conflict with sections 9 and 10 of the State Finance Act (Ill. Rev. Stat. 1976, ch. 127, pars. 145, 146). The Respondent also claims that the requested back pay sought prior to the agreement is violative of section 30 of the State Finance Act (Ill.Rev. Stat. 1976, ch. 127, par. 166), which prohibits obligation of prior fiscal year funds to a subsequent pay plan.

The Court finds that the amount sought by each Claimant does not violate the provisions of sections 9 and 10 of the State Finance Act (Ill. Rev. Stat. 1975, ch. 127, pars. 145, 146), in that it does not constitute “additional payment for work already performed.” If the Claimants were not improperly classified they would have received the benefits of the salary sought by each. The classification was found to be improper. The Department entered into a valid voluntary settlement agreement which is binding upon the Respondent. The State should be bound by the terms of the complete settlement agreement which include each claimant being paid for the period of December 1, 1976, through July 1, 1977, for services actually performed. This does not amount to additional compensation over what each would have been paid if each was not improperly classified.

The Respondent, through its duly authorized officer, entered into a valid settlement agreement with each Claimant. The agreement is binding and should be enforced and will be honored by the Court.

Each Claimant shall be awarded the amounts as hereinafter specified.

It is hereby ordered:

The Claimant, Jerome McCarthy, is awarded the sum of $466.83.

The Claimant, James Kelleher, is awarded the sum of $614.66.

The Claimant, Patrick J. Ruddy, is awarded the sum of $614.66.

The Claimant, Jeffrey Kueltzo, is awarded the sum of $244.53.

The Claimant, Robert Motto, is awarded the sum of $614.66.

The Claimant, Daniel Dixon, Jr., is awarded the sum of $614.66.

Said awards are to be modified per appendices A, B, C, D, E and F to reflect appropriate contributions and deductions.


author: Roe, C. J.

text:
    (No. 78-CC-1414
    La Salle National Bank, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 5, 1982.

    H. Burton Schatz and Irving Goodman, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This matter comes before the Court upon the joint stipulation of the parties and the recommendation of the commissioner assigned to the claim. The stipulation states as follows:

1. The instant claim seeks to recover damages for the breach of a lease agreement by Respondént, through its Department of Labor, Bureau of Employment Security.

2. The premises leased to Respondent were located at 1707 South Halsted Street in the city of Chicago Heights.

3. The lease was to have run from August 1, 1976, to July 1, 1981.

4. Respondent vacated the premises during the month of June 1978.

5. Approximately 14 months later on September 6, 1979, Claimant sold the premises to the city of Chicago Heights.

6. Respondent concedes that its abandonment of the premises was not entirely justified.

7. Both Claimant and Respondent agree that Claimant’s damages amount to $10,000.00, and that said amount is due and owing to Claimant.

8. Claimant agrees that an award in that amount would constitute full and final satisfaction of its claim.

9. No other evidence, written or oral, will be presented to the Court, and both parties waive hearing and the submission of briefs.

10. There are no disputed questions of fact and both parties agree that the law dictates the granting of an award in the agreed upon amount.

The foregoing stipulation was agreed upon by the parties during a pretrial conference with commissioner Joseph P. Griffin. Commissioner Griffin has also approved of the stipulation and recommended the granting of an award based upon it.

Although the Court is not bound by agreements between the parties, it is not at all averse to an amicable settlement between the parties, so long as the settlement appears to be in the best interests of the State. The Court is also loath to interpose a controversy between parties where none otherwise exists.

The instant stipulation appears to be fair and reasonable, and, since the commissioner has given it his approval and made a recommendation for an award, we accept the stipulation.

An award is hereby granted to Claimant in the amount of $10,000.00.


text:
    (No. 78-CC-1418
    Erik A. Borg Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 7, 1982.

    Allen E. Hoban, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Erik A. Borg Company, a corporation, filed its complaint on September 18, 1978, for items of costs incurred by Claimant and alleged by it to be compensable as part of agreed extras.

This matter was referred to commissioner Martin C. Ashman for a hearing. By agreement of the parties the hearing was waived.

The facts are undisputed and were received by way of a joint stipulation filed April 17, 1981. Claimant entered into a contract with the Illinois Building Authority and the University of Illinois on September 26, 1968, wherein the Claimant agreed to construct, as a general contractor, a building known as the: medical research laboratory addition of the University Medical Center in Chicago for the sum of $2,946,800.00.

On January 20, 1969, after work had commenced, there was discovered unanticipated subsoil conditions requiring extra work concerning installation of caissons. The extra work was agreed to be done on the basis of actual cost plus a fee, which extra work was authorized by Respondent, which raised the cost of the caisson part of the job from $34,000 anticipated in the contract to $481,651.99.

The extra work resulted in three claims made by Claimant, which will be discussed individually.

Count I — Claim for foreman’s wages

Prior to the discovery of the unusual subsurface soil conditions, Claimant had hired a subcontractor to do the caisson work. Claimant’s general superintendent, David Walter, was to have general supervision of the caisson work as well as the balance of the work. When the subsurface soil conditions were discovered, Claimant took over the caisson work and assigned David Walter as the foreman on the job during the day and assigned George Floberg as foreman for the night shift. The cost of Floberg’s salary has been paid by Respondent. The cost of Walter’s salary — $14,566.00—has not been paid by Respondent on the grounds that Walter was being paid as a general superintendent which was overhead expense not covered as an increased cost.

Section 1 — 17 of the contract, entitled “changes in work” provided, among others, that payment for the extra work would include “the actual cost of labor, including foremen”. The contract also provides that Claimmant was to receive as compensation a fixed percentage fee “to cover the cost of supervision”.

There is no evidence that Respondent knew, during the construction, that Walter was designated as a foreman although Respondent knew that Walter was on the job every day doing foreman-type duties. Walter was paid out of the general corporate fund of Claimant indicating Claimant’s belief, at the time, that Walter’s salary constituted general overhead and supervision. Furthermore, the change orders submitted by Claimant and agreed to by Respondent did not claim Walter’s salary as an item of cost. Claimant first raised the issue of Walter’s salary about 2M years after the agreed change orders. Claimant insists that Walter’s position on the general corporate payroll and its failure to request his salary as an item of cost was an oversight.

It is the opinion of this Court that Walter’s salary is an item of cost to be paid by Respondent. The necessity of a foreman and more than one foreman was contemplated by the parties in the contract. The necessity for payment for foremen was evidenced by the fact that Respondent agreed to and did pay for one foreman. Walter’s work as a foreman was known by Respondent by their day to day observation of him (although they may have regarded him as a general superintendent). The architect attested to the fact that Mr. Walter spent most of his time on the job together with Borg’s regular superintendent. It is clear to the Court that had Claimant assigned a different person as foreman, Claimant would not have been refused that item of cost. Merely because Claimant assigned one as foreman who had previously been general superintendent should not be the basis for refusal of an actual item of cost for Claimant. Claimant’s oversight in not properly listing Walter originally is understandable in view of the sudden nature and large nature of the additional work.

The Court does not agree with Respondent’s contention that Walter’s salary was a separate extra item which necessitated advance knowledge and agreement. An extra is an item of construction and all such extras were, in fact, agreed to in advance on a cost plus basis. The salary of an individual is not a separate extra but is merely an item of cost of an extra and, therefore, did not require specific agreement.

Therefore, the Court makes an award of $14,566.00 as to this claim.

Count II — Claim for an increase in contractors’ fees.

The stipulation of the parties indicates that the contract provided that for unforeseen extras, Claimant would receive a 15% fee for costs for its own forces and a 5% fee for subcontractors’ work. These fees were for the purpose of paying Claimant’s overhead, supervision and profit. Each of eight change orders submitted by Claimant and accepted by Respondent showed that Claimant was to be paid a 15% fee for work done by its own forces and a 5% fee for work done by its subcontractors.

Claimant submitted a claim for an additional 5% fee on subcontractor work based on the following in the contract:

“To the cost under (c) there shall be added a fixed fee agreed upon not to exceed 15% of the actual cost of the work.” (Emphasis added.)

Claimant contends that the unforeseen caisson work was unusually difficult requiring intense planning and that, therefore, a fee of more than the agreed upon 5% would be appropriate and claims that the change orders signed by Claimant, claiming only 5%, were the result of confusion or oversight.

The Court does not agree with Claimant’s contention. The parties stipulated that the contract contained a provision for a 5% fee in the case of changes in work not covered by unit, prices. This was the agreement contemplated by the words “agreed upon” in the portion of the contract relied upon by Claimant. The change orders, signed by Claimant, evidenced the agreement that the fee was 5%. The first claim made for an increase in fee was made long after the work was completed. Moreover, joint exhibit No. 26 indicates that the claim for an additional fee was made to cover the costs of David Walter’s salary, with the implication that Claimant did not expect to receive both Walter’s salary and an increased fee. Having awarded Walter’s salary, it would be inappropriate to award any increased fees.

Moreover, neither this Court nor any other court is empowered to rewrite the contract of the parties. Having agreed to a 5% fee, Claimant is thereby limited to 5%, and the request for an increase is denied.

The Court having allowed the claim for Walter’s salary, a sum of $2,184.00 is awarded to Claimant since that was the agreed fee of 15% as contractor’s fee for Walter’s salary.

Count III — Claim for interest paid on funds borrowed by Claimant.

During the course of construction, Respondent was late in making agreed-upon progress payments to Claimant, resulting in the necessity of Claimant to borrow money to pay subcontractors, at an interest cost of $3,724.77. Claimant claims these as additional costs compensable by Respondent.

Payment of interest as an out-of-pocket cost is no different than paying interest on an award. This Court has long held the State is not liable for the payment of interest on the amount of an award in that the same is a penalty.

In this case, the contract does not provide for any interest for late payments. Claimant has cited no cases wherein the cost of loans required due to late payments is chargeable against the State. If Claimant had had sufficient capital, it would not have needed to borrow. If this claim was granted, the State would be in a position of paying interest costs for those contractors who have insufficient capital and not pay those contractors whose capital investment is sufficient. In reality, the cost of borrowing is immaterial. The cost of money is a cost that every contractor bears, whether or not he borrows money. This is a cost that every person who is entitled to the payment of a claim and who is subsequently awarded a claim by this Court has had to bear. And this Court has never awarded to a successful Claimant an award for the cost of money.

Therefore, the cost of borrowing money is not properly a cost of construction which is compensable and therefore, this claim will be denied.

It is the opinion of the Court that Claimant be awarded $14,566.00 for a foreman’s salary plus $2,184.00 as contractor’s fee.

An award, therefore, is made to Claimant in the amount of $16,750.00.


text:
    (Nos. 78-CC-1430, 78-CC-1876 cons.
    Diane K. English, Barbara Johnson Levens, Administratrix of the Estate of Scott A. Johnson, Deceased, and William A. Randecker, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 3, 1982.

    Nack, Richardson & Kelly (William A. Kelly, of counsel), for Claimants Diane K. English and Estate of Scott A. Johnson, Deceased.

      Daniel P. Ernst, for Claimant William A. Randecker.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

These consolidated cases arise out of an automobile accident that occurred on September 18, 1977, which resulted in the death of Scott A. Johnson, and injuries to Diane K. English and William Randecker.

In cause No. 78-CC-1430, Diane K. English seeks $100,000.00 in damages for personal injuries, and Barbara Johnson Levens, Administratrix of the Estate of Scott A. Johnson, seeks $100,000.00 in damages for the wrongful death of Scott A. Johnson.

In cause No. 78-CC-1876, William A. Randecker seeks $100,000.00 in damages for personal injuries.

On September 18, 1977, Claimant, Diane K. English, was driving her Chevrolet in a northwesterly direction along and upon U.S. Rt. 20, approaching a curve on the highway approximately two-tenths of a mile south of the junction of U.S. Rts. 20 & 84, northwest of Galena, Illinois. The State has stipulated that U.S. Rt. 20 at the location of the accident was owned and maintained by the State on September 18, 1977. Passengers in the English vehicle were Kim Lawrence and Claimant, William Randecker. These three had just left a dance in Galena, where they were in attendance since 9:00 p.m. the previous evening.

As the English vehicle approached the curve on Rt. 20, Diane English noticed a southbound Ford Mustang approaching in its own lane of travel. As the cars were about 50 feet apart, the dimmer lights came on, the southbound Ford suddenly turned to the left and crossed the center line into the northbound lane of travel, and the two vehicles collided. The front end of the English vehicle collided directly with the passenger side of the Ford. As a result of the collision, Claimants English and Randecker were injured, as was the driver of the southbound vehicle Steven Glasgow. Scott A. Johnson, a passenger in the Glasgow car, was killed.

It was raining heavily at the time of the accident and Claimants contend that the accident was caused by the excessive amount of water that had accumulated on the highway during the rainstorm. Claimants contend that the accumulated water caused the Glasgow vehicle to hydroplane when it came in contact with the standing water on the highway. Hydroplaning is a phenomenon whereby an automobile literally rides on the water and is not in contact with the roadway surface. As a result, the automobile that is hydroplaning loses its “steerability”. Claimants contend, therefore, that the accident was the result of a dangerous condition existing on the highway and that the State was negligent in designing, contracting and maintaining the highway and that it failed to warn of the dangerous condition, the gathering of water on the highway during rainstorms.

Trooper Gary Schap investigated the accident. He testified that about 15 minutes before the accident occurred he drove across the northbound lane of Route 20 in the area of the accident scene and his squad car hydroplaned as it came in contact with a standing pool of water which had accumulated on both lanes of travel at and around the accident scene. When he returned to the area after having been notified of the accident, he observed that the standing water was still present on both lanes of travel. There was a heavy rainstorm on September 17 and 18. He further testified that the area where the accident occurred was dangerous when water accumulated. Based on his training and experience in accident investigation, it was his opinion that the southbound Glasgow vehicle must have hydroplaned as it came in contact with the standing ponds that were present on the highway.

James Shaffer, a professional photographer, examined the scene following the accident. He testified that at about 2:00 a.m., some 45 minutes after the accident, there was a heavy rain and the roadway was wet, but that the only water accumulation he observed was located at the point where the vehicle came to rest after the collision, being the northbound lane of traffic. His testimony indicated that there were no water pools present in the southbound lane of traffic, being the lane from which the Glasgow car originally lost control and crossed the center line into the path of the English car.

From the testimony of trooper Schap and photographer Shaffer, the evidence concerning the question of whether or not there was accumulated water in the southbound lane of traffic at the point where the Glasgow vehicle lost control is conflicting. Even assuming, however, that there was water present in the area that would be consistent with the theory that the Glasgow vehicle hydroplaned, there is no proof that the Glasgow vehicle did, in fact, hydroplane. William Alroth, a consulting traffic engineer, also speculated that hydroplaning occurred because of the conditions that existed. While these opinions appear reasonable, they nevertheless remain speculative and unsupported by sufficient proof.

Claimants English and William A. Randecker, the occurrence witnesses who testified, were unable to state that the Glasgow automobile struck a pool of water when it went out of control.

The only person who knew exactly why his car crossed the center line was Steven Glasgow, the operator, and he did not testify at the trial nor was his version of events made known.

Other evidence presented at the trial indicated that the Glasgow car was equipped with tires that were almost totally bald, and a bottle of whiskey was found in the car. This does not prove that the accident was caused by defective tires or drunk driving, but would only give rise to speculation.

Claimants contend, therefore, that the accident was the result of a dangerous condition existing on the highway and that the State is also negligent because it failed to warn of a dangerous condition, the gathering of water on the highway during rainstorms.

Claimants’ burden in these cases is to prove by a preponderance of the evidence that the State breached its duty of reasonable care and that the negligence flowing from the breach proximately caused Claimants’ injuries. Estate of Brockman v. State (1975), 31 Ill. Ct. Cl. 53.

The Court finds in light of the evidence which was presented Claimants have failed to prove that the Glasgow vehicle crossed the center line as the result of hydroplaning. There has been no showing, therefore, that the State’s negligence, if any, was the proximate cause of the injuries complained of. Claimants’ contention that the collision was caused by hydroplaning is speculation. The mere happening of an accident creates no presumption of liability against the State and that liability will not be imposed based upon speculation. Hobbs v. State, 388 N.Y.S. 2 729.

For the Claimants to recover, they must prove that the Glasgow car crossed the center line solely by reason of the accumulation of the water. They have not sustained that burden of proof.

While the Court regrets the death of Scott A. Johnson, and the injuries to Claimants Diane K. English and William A. Randecker, these claims must be and are, hereby denied.


text:
    (No. 78-CC-1439
    Willie Robinson, Claimant, v. The State of Illinois, Illinois Department of Transportation, Division of Highways, Respondent.

      Opinion filed December 24, 1981.

    James K. Maremont, for Claimant.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim is based on alleged negligence of the State of Illinois, Department of Transportation, in the maintenance of the understructure of a bridge of the Kennedy Expressway overpassing Logan Avenue in Chicago.

Claimant testified that on February 23, 1977, she was operating an automobile going west on Logan Boulevard under the Kennedy Expressway at 20 to 30 miles per hour when suddenly a piece of concrete fell upon the hood of her car. She became very scared and slammed on the brakes, causing her body to be propelled forward and backward. She got out of her car and noticed that a piece of concrete was resting on it, the concrete being an object of about five pounds in weight. She looked up and saw a big hole on the understructure of the Kennedy Expressway. The hole location looked “real clean” like “fresh cement.” The hole roughly corresponded to the size of the piece of cement on her hood. She noticed no plywood or any other flooring under the expressway structure.

Gladys Algarian, an eyewitness to the incident, testified in substantial corroboration of Claimant’s testimony. She further testified that she did not ever see a sign on Logan Boulevard warning against falling concrete, nor was Logan Boulevard ever blocked off.

The investigating Chicago police officer, Max Steele, testified that when he arrived on the scene he noticed Claimant’s car with stones on its top, damage to the hood and a cracked windshield. He noticed no plywood on the underportion of the bridge. The Claimant, at the scene, was standing and walking with no observable injuries.

Robert Thurmaier, a civil engineer employed by the State of Illinois, testified that he worked in the bridge section for the bureau of maintenance which is responsible for maintaining State bridges in Cook County. He testified that as early as 1974 the State became aware that concrete was falling from the superstructure in question and that it was a continuous problem. The Department, in 1974, placed plywood under the longitudinal joints of the bridge (those running parallel with the length of the bridge) in order to protect the public from falling concrete. However, the plywood did not cover the entire bottom of the superstructure inasmuch as the area showing deterioration of concrete tended to be that involving only the longitudinal joints. In 1975 the plywood disappeared and was replaced in 1976. There are no records indicating disappearance of the plywood until February 23, 1977, the date of the accident.

Thurmaier further testified that the placing of the plywood flooring to catch falling concrete was a temporary measure. Long-term repairs to the concrete under-structure itself are available but were beyond the economic resources available to the Department.

The Department of Transportation’s civil engineer whose duty it was to inspect bridges, Thomas Warnock, testified that in 1975 he noted as to the underside of the bridge, — “Minor breakout on underside of longitudinal joint near Southwest corner — not serious.” He did not then recommend repairs to the concrete itself, feeling that the plywood flooring adequately would protect persons under the bridge. In May 1977 (after the accident in question), he rated cracking on the bridge in question as “in poor condition.” He felt that the longitudinal joints should be replaced. He did not, however, note crackage of concrete on the underside of the deck, but only noticed the problem under the longitudinal joints and the handrail parapet.

The optimum repair, according to Warnock, was to repair the concrete at the bottom of the substructure but repairs such as those are subject to the funds available. He further testified that once concrete begins falling, the vibrations of the vehicular traffic above it would contribute to its continuing to fall and unless repairs are made to the concrete itself, the condition will worsen.

On the issue of liability, it is our opinion that Claimant has proved by a preponderance of the evidence that Respondent had reasonable notice of the dangerous condition of the bridge in question and despite that notice negligently failed to repair, the problem and that such omission was the proximate cause of Claimant’s injury.

Respondent knew approximately three years before the accident that there was concrete falling from the underside of the bridge in question, as evidenced by the testimony of both State engineers. They knew that such a condition inevitably becomes worse.

Respondent argues that, although it knew that parts of the underside of the bridge were defective, that those parts were unrelated to the Claimant’s accident and that therefore Respondent did not have knowledge that the underside of the bridge in other areas was defective and further, that inasmuch as Claimant testified she saw no plywood, it must be assumed that the concrete fell from an area which was not noticeably defective. We do not agree.

Notice of falling concrete from the underside of the bridge is actual notice of a defective underside. Respondent knew that the condition, unrepaired, would worsen. Thus, the notice of a defect of part of a bridge becomes notice of the potential defects of the rest of the bridge.

Furthermore, there is no evidence that the concrete came from the unnoticed portion of the bridge other than Respondent’s assumption that it must have because it came from the part unprotected by plywood. The testimony of Claimant and, even more important, the testimony of the investigating police officer was that there was no plywood present, at all, under the bridge. Thus, the concrete in question could have come from any part of the bridge, even from the longitudinal joint area.

Respondent was negligent in its failure to repair the concrete. The plywood “protection” was subject to disappearance and in fact was not in place at the time of Claimant’s accident. It was, apparently, only lack of funding that prevented permanent repairs. Furthermore, Respondent never blocked off the street in question nor did Respondent post warning signs. Its failure to repair or otherwise protect the public from falling concrete constitutes substantial evidence of negligence.

On the issue of damages, the extent of Claimant’s injuries are somewhat questionable. After the accident she was walking and standing at the scene and had no observable signs of injury. The injury was caused, not by the impact of the concrete with the car, but by a sudden braking of the car by Claimant travelling at 20 to 30 miles per hour. It is questionable whether braking of a car by the Claimant at that speed can cause any severe injury of the sort here claimed. Claimant did not seek medical attention until five days after the accident when she saw Dr. Ralee Mamme, a chiropractor. She had soft tissue injury only — spasm of the muscles of the neck, shoulder, side and back, and headaches. She was treated by manipulative therapy, physiotherapy, and a cervical collar and rest. She was advised to stay away from her employment as a punch press operator until April 30, 1977, during which time she saw her doctor 10 times. She has no present pain. The doctor bill was $419.00.

In fact, Claimant stayed home from her employment until June 6, 1977, claiming she could not work because of pain in the neck and back. However, she discarded her cervical collar about two months after the accident and she was hospitalized from May 9, 1977, to May 16, 1977, for an unrelated kidney problem. Interestingly, she stayed off work for a total of 17 weeks, the same being the total weeks of sick pay allowed by her employer.

In our opinion, her injury could not have required being off work for more than four weeks. Her weekly salary was $172.40.

In accordance with the decision of this Court in National Bank of Bloomington v. State of Illinois (1980), 34 Ill. Ct. Cl. 23, Respondent is entitled to credit as a set-off the sum of $80.00 per week received by Claimant from her employer for sick pay or a total credit for four weeks of $320.00. Thus the net pay loss to Claimant was $369.60 Her other items of special damage are as follows:

Doctor bill $ 419.00

Property damage 654.65

Because of the questionable nature of the evidence pertaining to her injury, we feel that Claimant is entitled to $2,500.00 as full compensation for this claim. So ordered.


text:
    (No. 78-CC-1455
    Laurence Smith, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 11, 1982.

    Di Monte, Baker & Lizak (Chester Lizak, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim for back pay for an employee wrongfully discharged by the Illinois Department of Mental Health and Developmental Disabilities (hereinafter referred to as DMHDD) at Chicago-Reed Mental Health Center. Claimant was employed as a full-time medical technician by DMHDD. He was discharged on May 12, 1975, and after litigating the matter through the Civil Service Commission, the circuit court of Cook County and the Illinois Appellate Court, the Illinois Appellate Court determined that Claimant was wrongfully discharged.

At the hearing the parties were in agreement for the years 1975 through 1977 for the amounts due, and their computations were as follows:

Est. DMHDD Actual Total

earnings earnings due

1975 $ 5,792.00 $ 1,508.00 $ 4,284.00

1976 9,396.00 7,342.00 2,154.00

1977 10,068.00 16,861.00 -0-

Subtotal ..................... $ 6,438.00

Add vacation pay due upon termination ....................960.78

Total........................ $ 7,398.78

The disputed issue is as to pay for the year 1978 from January 1, 1978, through May 31, 1978, amounting to $4,460.00 in salary and $304.05 in vacation pay due by reason of termination of employment or a total of $4,764.05.

Claimant testified that prior to his discharge he was employed as a Medical Technician II. He worked the shift from 4:00 p.m. to midnight. During this time he was a full-time day student, a fact known by DMHDD.

After the decision of the Illinois Appellate Court, according to the departmental report, a representative of the DMHDD, Ronald Berg of the employee relations division, informed Claimant’s attorney on March 10, 1978, to have Claimant report to his office for work assignment immediately. The work assignment was to begin at 8:30 a.m. Claimant did not report to work.

On May 22, 1978, Berg of DMHDD, by letter informed Claimant that if he did not report to work before June 1, 1978, he would be terminated.

Claimant offered to come to work at 4:00 p.m. for the shift as he had previously been employed. This offer was apparently refused by DMHDD by letter of May 29, 1978, wherein Berg informed Claimant that he was to report to work at 8:30 a.m. no later than June 1, 1978. Claimant did not comply. Thereafter, in June of 1978, Claimant accepted a job at higher pay elsewhere.

During the period of January 1, 1978, through May 31, 1978, Claimant was a full-time student. He was admittedly not employed and admitted to making no efforts to obtain after-school employment because he felt it was more important to devote his time to his studies. His studies had not changed in any way to indicate that more time was needed to be spent in school than had been in the past when he did work. His other employment commencing in the third week in June was after he was out of school.

Claimant contends that the oral request to return to work on March 10, 1978, was not supported by competent evidence, the same having been introduced by way of a departmental report offered into evidence at the hearing and tentatively admitted into evidence with the reservation that counsel for Claimant would be allowed seven days to file any objections he may have had. Rule 14 of the Rules of the Court of Claims provides that departmental reports are prima facie evidence of the facts contained therein (emphasis added). We recognize that there is some potential for abuse of this rule, note the objections and replies regarding the admission of this departmental report, and have accorded it the weight and consideration we feel it merits.

The request to return to work was apparently for a day shift. The DMHDD knew that Claimant was a day student and could not work the day shift. We find that this request and the written requests of May 22, 1978, and May 29, 1978, were not appropriate offers to reinstate at the same position. The same position was for the shift beginning at 4:00 p.m. under the known circumstances of Claimant’s current and past status of being a full-time day student. However, Claimant’s claim for 1978 back pay fails for a different reason. Respondent is not liable for that period because of Claimant’s admitted failure to mitigate his losses during 1978. This case is different from Padgett v. State (1979), 33 Ill. Ct. Cl. 92, wherein we found that Claimant’s attendance at school was evidence of mitigation. In that case the Claimant did seek other employment and did find some part-time work. In the case at bar Claimant did not even seek other work. Also, in Padgett we noted that there was no evidence to suggest that the Claimant would have found work had he not gone to school and that no authority was cited to suggest that a person who has been wrongfully discharged from State employment is prohibited from attempting to educate himself in order to fit into the job market. In the case at bar Claimant was attending school prior to his discharge and there was no indication his studies changed in any way. For the same reason that income from a second job held prior to and after a wrongful discharge is not set off in mitigation, Claimant’s schooling is not mitigation.

Claimant also seeks overtime pay, interest, attorney fees and such other and further relief as he is entitled to under the law. First, with respect to overtime pay the record indicates that Claimant had at the time of his discharge accrued $205.67 in overtime. This amount has not been liquidated and we find he is owed it. No compensation is due Claimant for any overtime during the period of his discharge. He did not actually perform overtime and to say he would have would be too speculative.

Second, we find that Claimant is not entitled to interest. We have consistently denied claims for interest in the absence of a statute expressly subjecting the State to such an obligation. None was proffered and none was found by us. The claim for interest is denied.

Third, Claimant, in his brief, makes claim for attorney fees pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 41), on the basis that untrue statements were made. Said section provides that a court may award such fees upon motion made within 30 days of judgment or dismissal. Therefore, this aspect of the claim is premature and is denied on that basis.

Claimant is hereby awarded the sum of $7,604.45 (seven thousand six hundred four dollars and forty-five cents) plus appropriate employer contributions and less appropriate employee deductions as computed in Appendix A attached hereto and incorporated herein.

APPENDIX A

Identification of State contributions and deductions from back salary award

To the State Employees’ Retirement System:

Employee’s contribution to State Employees’ Retirement System __1010.24_

Employee’s contribution to FICA _444.77

State’s contribution to State Employees’ Retirement System 1719.07

State’s contribution to FICA _444.77

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal income tax _1520.89

To Illinois Department:

Claimant’s Illinois income tax_190.11

To the Claimant:

Net salary _4438.44

Total award $9768.29


text:
    (No. 78-CC-1481
    Boys Farm Foundation, Claimant, v. The State of Illinois, Respondent.

      Order filed November 9, 1981.

    Thomas F. Londrigan, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arose from the provision of services by Claimant, Boys Farm Foundation, to Respondent State of Illinois pursuant to a contract during Fiscal Year 1976 (July 1, 1975, through June 30, 1976). During that period, Claimant provided residential care services to State wards placed by the Department of Children and Family Services (DCFS).

The record indicates that the contractual rate agreed upon by the parties for Fiscal Year 1976 (FY 76) was $20.38 per child-day of service provided. On May 26, 1976, DCFS director Mary Lee Leahy granted Claimant a rate increase of $3.24 per child-day, retroactive to May 1, 1976. The rate increase of May 26, 1976, was granted in compliance with Department regulations and is not at issue.

Thereafter, Claimant requested an additional rate increase to cover expenses of hiring additional personnel required by the Department during FY 76. After the rate increase of May 26, 1976, and prior to September 3,1976, director Leahy met with Claimant’s executive director David Herren and DCFS deputy director David M. Bankard. During this meeting, director Leahy instructed Bankard in Herren’s presence to resolve Claimant’s new request for an additional rate increase.

Subsequently, on September 3, 1976, Bankard wrote a memo to Herren promising “to pay the amount, if any, granted by the Director retroactive to January 1, 1976.” On November 17, 1976, director Leahy authorized a rate increase of $3.83 per child-day but set the effective date of the adjustment as July 1, 1976, the first day of Fiscal Year 1977 (FY 77).

Claimant filed this action to recover the amount of $4,611.32, which represents the sum it would have received if the $3.83 increase had been paid beginning January 1, 1976, rather than July 1, 1976. Respondent moved to dismiss the action and for summary judgment on the theory that Bankard’s representation about retroactive application was ultra vires, that the DCFS director alone is authorized to approve rate increases, and that director Leahy’s letter of November 17, 1976, superseded the commitment contained in Bankard’s memo of September 3, 1976. Claimant likewise filed a motion for summary judgment. For the reasons set forth below, Claimant’s motion for summary judgment is denied, and Respondent’s motion for summary judgment is hereby granted.

Claimant argues that this is a case where payment was not made during the fiscal year, nor during the three-month grace period, only because documents supporting the charges were not presented before the appropriation lapsed. Claimant contends that, since the commitment to pay the new rate retroactive to January 1 had been made by Bankard during the grace period, the new rate subsequently approved by director Leahy is payable from January 1 out of the FY 76 funds. Claimant cites Anken Chemical and Film Corp. v. State of Illinois (1969), 26 Ill. Ct. Cl. 487, in support of this proposition.

Accepting Respondent’s claim that the DCFS director is the sole person authorized to grant rate increases payable from Department appropriations, the Court finds that the statement to Bankard by Leahy in Herren’s presence constituted, with respect to this single request, an express delegation of her exclusive authority to set rates. Nevertheless, that delegation was subsequently and effectively revoked before the new rate was finally approved by Leahy on November 17, 1976. Bankard himself indicated in his memo that he would be unable to resolve this matter without a rate approval by the director. That rate approval came on November 17, but not until director Leahy had made it abundantly clear that FY 76 charges were no longer payable. Thus, Claimant should have known as early as September 3 that the promise of retroactive application was contingent on the approval of a new rate by director Leahy. This is not a case where Claimant only failed to submit a statement for charges at a prevailing rate; it is instead a case involving application for a rate increase in a sum uncertain to which Claimant may or may not have been entitled at the time the application was made. We cannot acknowledge the rate approval and at the same time ignore the language limiting retroactive application to July 1. That language correctly reflected the law concerning fiscal appropriation and superseded Bankard’s commitment of September 3.

Thus, the action becomes a claim for a rate increase after payment for services at the agreed-upon prevailing rate, and Klingberg Schools v. State of Illinois (1979), 33 Ill. Ct. Cl. 184, controls because Boys Farm Foundation accepted payment at the original per diem rate.

The motion of the Respondent for summary judgment is hereby granted.

       The record indicates that payment to private agencies by DCFS for any given fiscal year may be made during that fiscal year, or during the three months following if there are funds remaining from the prior fiscal year appropriations. DCFS had adequate funds remaining to pay the claims presented here.


author: Holderman, J.

text:
    (No. 78-CC-1482
    Carl W. Claycomb, a minor, by his father and next friend, Durrad W. Claycomb, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 31, 1981.

    Randall B. Ehlers, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent. .
   Holderman, J.

Claimant in this cause was a 14-year-old boy when he sustained an injury while using a swing at the Moraine View State Park on May 27, 1978.

The injured individual and his parents were using the facilities at the State park for which Claimant’s father had paid an admission fee.

The evidence indicates that the swing had been inspected by a State employee on May 18, 1978, and was found to be in good condition. There is also evidence to the effect that shortly before Claimant began using the swing, a park patron also inspected the swing set and allowed his grandchildren to swing on it.

Claimant had been on the swing approximately five minutes when the chain broke. A witness testified that Claimant had been “popping” the swing and jumping out of it.

This Court has repeatedly held that the State of Illinois is not an insurer of all persons using its facilities. It is the State’s duty to exercise reasonable care and maintenance of its parks. This Court has previously held that the State must have had either actual or constructive notice of the defect that caused the injury for which a claimant is seeking to recover.

Moraine State Park consists of approximately 1,200 acres and is maintained by the State of Illinois for the use and entertainment of the public. In the cause at issue, the evidence shows that on May 18, 1978, nine days before the accident in question, the swing had been inspected by a State employee and found to be in good condition. The record is devoid of any evidence showing that the State had either actual or constructive notice of any defect in the chain that later broke and caused Claimant’s injury.

In the case of Finn v. State of Illinois, 24 Ill. Ct. Cl. 177, there is a lengthy discussion of the duty of the State toward individuals using State parks. The Court held that the State “is not an insurer against accidents occurring to patrons while using the park facilities” and that “before the State can be held liable for an injury on property maintained by it, it must have actual or constructive notice of the dangerous or hazardous condition.” This case cites numerous decisions in the Court of Claims to the effect that Respondent is not an insurer of persons using park facilities and that the State must have actual or constructive notice of an alleged danger.

Based upon the decisions in the above cases, it is the Court’s opinion that Claimant has failed to show any negligence on the part of the State or that the State had either actual or constructive notice of the defect complained of, and an award is hereby denied. This cause is dismissed.


text:
    (No. 78-CC-1514
    John D. Simpson Construction Co., Inc., A Delaware Corp., Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1982.

    Herschbach, Tracy, Johnson, Bertani & Wilson (Raymond E. Meader, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause comes before the Court on a joint stipulation submitted by the parties hereto. The parties have agreed to an entry of an award in the amount of $6,181.27. We concur.

Claimant, John D. Simpson Construction Company, was hired by the State of Illinois Department of Transportation (IDOT) to repair the McDonough Street Bridge and bridgehouse (bridge) in Joliet, Illinois.

The bridge had been damaged on April 9, 1976, to such an extent that it was unusable by vehicular and pedestrian traffic. In addition, the movement of river traffic was impaired.

Because of the emergency nature of the repairs, a contract was let to Claimant under exemption (3) of section 6 of the Illinois Purchasing Act (Ill. Rev. Stat. 1979, ch. 127, par. 132.6). Thereunder, IDOT was not required to let the job out under competitive bidding procedures.

At the time of Claimant’s contract, it was estimated that repair costs would be. around $65,000.00. The total cost of repair however was $71,759.07. IDOT has paid $65,577.80 to Claimant, leaving a balance due of $6,181.27.

When payment was not forthcoming, Claimant filed this action against the State which after amendment sought the sum of $9,556.13 representing the balance of the repair costs plus interest.

IDOT has reviewed the additional costs incurred by Claimant in its repair and has found them to be fair and reasonable.

In agreeing to the stipulated award, the Claimant has waived its rights to any interest attributable to IDOT’s failure to pay the balance of the repair costs.

The Court having reviewed the stipulation together with the supporting documentation attached thereto agrees that an award should be entered.

It is hereby ordered that an award of $6,181.27 (six thousand one hundred eighty one dollars and twenty seven cents) be, and the same hereby is, entered on behalf of John D. Simpson Construction Company in full and final satisfaction of any and all claims which are the subject matter of the complaint herein.


text:
    (No. 78-CC-1534
    Terry Kultgen and Norman Kultgen, d/b/a B & K Enterprises, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 22, 1982.

    Cap well, Bethelsen, Nolden & Casanova, Ltd. (James A. Pitts, of counsel), for Claimants.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim is for damages allegedly incurred by Claimants as a result of an accident on July 29, 1977. The truck in question was a 1974 White Freightliner tractor-trailer, leased by Claimants.

On the date in question, Mr. Julian Corday, a truck driver who was employed by Claimants, was hauling steel coils on a trip from Portage, Indiana, to Oak Creek, Wisconsin. Corday, who was an experienced driver, was proceeding north on the Dan Ryan Expressway when he noticed that his fuel tank was empty and he attempted to locate a service station. He exited on the westbound Eisenhower Expressway and, while proceeding up the ramp, the engine stalled. The driver then positioned the semi next to the left retaining wall and engaged his emergency brake. In approximately one-half hour, a Department of Transportation tow truck arrived and offered assistance.

The driver of the tow truck, Ross Cannetello, was an experienced State employee, having spent 17 years with the Department of Transportation driving an emergency patrol vehicle. On the day of the accident, he was accompanied by Edward Pagausch, a trainee with the Department of Transportation. They were in the process of patrolling the expressways on a regular programmed route when they noticed a backup of traffic on the Dan Ryan and discovered Claimants’ semi on the ramp.

A short discussion ensued between Cannetello and Corday after which Cannetello decided to tow the semi up the ramp and down a slight incline away from the flow of traffic.

Up to this point, there exists practically no controversy between the parties. Cannetello did take charge of the situation and removed the disabled truck that was impeding the flow of traffic on the highway.

Corday recalls telling Cannetello, “We got some air. We could probably stop it once.” Cannetello recalls asking Corday, “if he had enough brake pressure to hold until we were able to get beyond the decline, and he said, yes.”

There were several alternatives in which this situation could have been handled; (1) by securing gas to put in the stalled truck which would have necessitated the truck being on the ramp additional time and causing still more traffic congestion; (2) towing the semi with a 15-foot chain; or (3) using a tow bar which was present.

It is Claimants’ contention that Respondent, by towing the semi with a 15-foot chain as opposed to the tow bar, violated section 15 — 110 of the Illinois Vehicle Code (Ill. Rev. Stat., ch. 95½, par. 15 — 110) and that said violation was negligence.per se.

The statute provides, in part, as follows:

“(a) When one vehicle is towing another, the drawbar or other connection shall be of sufficient strength to pull all the weight towed thereby and the drawbar or other connection shall not exceed 15 feet from one vehicle to the other, except for the connection between any 2 vehicles transporting poles, pipes, machinery or other objects of structural nature which cannot readily be dismembered.
(b) Outside a business, residential or suburban district or on any controlled access highway, no vehicle other than a pole trailer or a semitrailer which is being towed by a truck tractor and is connected by the means of a fifth wheel shall be towed on a roadway except by a drawbar and each such vehicle so towed shall, in addition, be coupled with 2 safety chains or cables to the towing vehicle. Such chains or cables shall be of sufficient size and strength to prevent the towed vehicle parting from the drawing vehicle in case the drawbar should break or become disengaged.”

It is Respondent’s contention that State employees are exempt from complying with the provision in the statute above cited and, in support of their position, cite the following:

“Unless specifically made applicable, the provisions of this chapter, except those contained in Section 11 — 204 and Articles IV and V of this chapter, shall not apply to persons, motor vehicles and equipment while actually engaged in work upon a highway ...”

The question then resolves itself as to whether or not the statute referred to by Claimant does exclude the State and also whether the State was negligent in using the chain instead of the tow bar.

Cannetello determined to tow the semi with a 15-foot. chain which he attached to the tractor. The tow truck then pulled the semi up the ramp and as they proceeded down the decline, traveling approximately two miles per hour, the tow truck was unable to keep the chain taut and the semi (which, including the cargo, weighed approximately 70,000 pounds) collided with the tow truck and sustained $3,693.63 worth of damage, together with lost profits computed by Claimant, and not contested by the Respondent, of $1,223.10. The total claim is in the amount of $4,916.73.

It is Respondent’s contention that the proximate cause of the accident was the fact that Claimants ran out of fuel and not the action of the State’s employees in using a chain instead of a tow bar.

From the testimony at the hearing, it is evident that Cannetello and Corday were concerned with whether the semi could brake. They were both aware that once a diesel truck shuts down, it is no longer compressing air for the brakes; and they were both aware that when that happens, the diesel has a limited amount of air to be used in connection with any future braking operation.

In order to recover in a suit against the State, a Claimant must prove by a preponderance of the evidence that not only was Respondent negligent, but that Claimant was free from contributory negligence and the Respondent’s negligence was the proximate cause of the accident and the damages.

The law in the State of Illinois is well settled that where an individual’s alleged negligence does nothing more than furnish a condition by which injury is made possible, and an injury is then caused by a subsequent act of a third person, the two acts are not connected, and the existence of the condition is not considered a proximate cause of the injury. See Watson v. Byerly Aviation, Inc. (1972), 7 Ill. App. 3d 662; Ray v. Cock Robin, Inc. (1973), 10 Ill. App. 3d 276.

Claimant cites the case of Barango v. Hedstrom Coal Co. (1956), 12 Ill. App. 2d 118, 138 N.E.2d 829, wherein the appellate court stated that the prior statute which required two safety chains was remedial and should be liberally construed. The court held that the statute was a safety measure passed for the benefit and protection of all users of public highways, and explained the duty of a tow truck operator further as follows:

“Irrespective of any statutory requirement, a truck operator engaged in towing another vehicle is performing an act of potential danger to other operators and pedestrians, and persons using a dangerous instrumentality are required to exercise care commensurate with the danger to be apprehended, in order to prevent injury to others.” 12 Ill. App. 2d 118, 127, 138 N.E.2d 829, 833.

Claimant states that because the Illinois towbar statute is designed (1) to protect a class of persons to which the Claimant belongs; (2) to protect the particular property interest which was invaded; (3) to protect that interest against the kind of harm which has resulted; and (4) to protect that interest against the particular hazard from which the harm resulted, Cannetello’s violation of the statute was negligence per se.

It is clear from the record in this cause that after Claimant had parked his truck in such a manner that it was partially out of the traveling area, the Respondent’s agent took over. It was the decision of Respondent not to use the tow bar even though one was present, but to use the tow chain, despite the fact the truck was on an incline and despite the fact that it was an extremely heavy vehicle.

It is the Court’s opinion that Respondent, having once taken charge of the removal of the vehicle in question, was under the duty to take every precaution necessary to prevent any incidents such as that which occurred.

It is also the Court’s opinion that the proximate cause of the accident was the failure of Respondent to use the tow bar, and as a result of said failure, the accident occurred. The Court further believes the Claimant was free from contributory negligence and that the proximate cause of the accident was the act of Respondent.

An award is hereby entered in favor of Claimant in the amount of $4,916.73.


text:
    (No. 78-CC-2183
    Filomena Abasolo et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 15, 1981.

    Despres, Schwarz & Geoghegan (Thomas H. Geoghegan, of counsel), for Claimants.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

The claim herein was filed as a class action lawsuit against the State of Illinois on December 14, 1978. The class consists of two hundred fifty-five (255) nurses who were employed by the Department of Mental Health and Developmental Disabilities (DMH/DD) between November 1 and December 21, 1976. The dispute arose out of the effective date for the implementation of the substantive provisions of a collective bargaining agreement relating to salary benefits.

DMH/DD had contended that the provisions became effective when it signed the agreement on December 22, 1976. The union which represented the employees covered by the agreement contended that the effective date was governed by the terms of the contract which read as follows:

“The provisions of this agreement shall become effective on November 1, 1976 and shall continue in effect subject to the provisions here.”

The matter was ultimately submitted to an arbitrator who decided that the November 1, 1976, date was controlling. Because the decision of the arbitrator was made after the end of FY 77, the covered employees who were affected by the salary provisions could not be paid by DMH/DD since the funds had lapsed. The employees involved then filed this claim for the salary benefits granted by the contract between November 1, and December 21, 1976.

This case had previously been decided by this Court on April 20, 1981. In that opinion, the Court certified the class and granted an award. Pursuant to the stipulation of the parties filed November 7, 1980, the award fund was distributed to those class members who were indicated eligible for payment by a listing prepared by DMH/DD and attached to the stipulation. Because the class members had agreed to withdraw their claims for some of the salary benefits contained in the contract, some of the class members were not eligible for any payment and this Court made no award to them.

On May 19, 1981, within the time allowed by law, the parties filed a joint motion to vacate citing two reasons for the vacation. First, not all of the class members affected had been listed on the attachment filed in the November 7, 1980, stipulation. Second, the class members had agreed among themselves to a pro rata distribution of any award made by this Court.

The parties have since filed another joint stipulation which includes all the class members and indicates the amounts of the pro rata distribution to each class member.

The issues before this Court are whether its prior opinion disposing of this matter should be vacated and, if so, whether the stipulation of the parties now before this Court should be approved.

It is first noted that the motion to vacate was timely filed. The first reasons for vacation regarding missing class members is important. The purpose of a class action lawsuit is to insure equal treatment to members of a defined class of persons who submit common questions of law and fact to a court which then determines the merits of the class claim. To exclude any member of a class because of unintentional oversight would defeat the common purpose in class action litigation.

The second reason for vacation involves the distribution of the award fund. Class action lawsuits are involved pieces of litigation. No other element of these kinds of cases is subject to more complexity than proof of damages. While a determination of liability may be readily made, the amount of liability can take much longer to determine. Where the parties in such litigation can arrive at a mutually agreeable amount of damages together with a method of distribution of that amount to the class members, it is the function of a court to approve or disapprove the parties’ plan based on the fairness and reasonableness thereof.

The nature of the liability in a class action case is different from the usual situation involving individual parties. The liability of the defendant or defendants is to the class as a whole, not to any specific member of the class. This is the essence of class litigation. Where, as in the case herein, the liability and the amount of damage to the class is stipulated, the class as a whole should properly share in the amount of damages agreed to by the parties.

This is especially true where the stipulated amount of damages is less than the amount originally claimed by the class. In such a situation, a pro rata distribution assures a proportionate share of the amount recovered to each class member.

After due consideration of the request of the parties, this Court is willing to grant the vacation in order that relief may be given in accordance with the expressed intentions of the class members. Because the Court is now assured that all affected members of the class have been included and that the method of distribution is fair and reasonable, this Court orders as follows:

1. The Court’s opinion of April 20, 1981, is hereby vacated.
2. The Court certifies this controversy as a class action, the class of which is composed of 255 nurses employed by DMH/DD between November 1, and December 21, 1976, who were eligible for certain salary benefits under a collective bargaining agreement known as RC-23.
3. Pursuant to the stipulation of the parties an award is entered on behalf of the aforesaid class in the amount, of $7,415.39 (seven thousand four hundred fifteen dollars and thirty nine cents) in full and complete satisfaction of any and all claims arising under the complaint herein.
4. The award fund so created shall be distributed to the class members as set forth on Attachment A affixed to this opinion after appropriate additions and deductions have been made to each distribution as required by State and Federal law.
5. The Court’s order as entered this date is final and binding on all parties.

It is so ordered.

ATTACHMENT A

Distribution to Class Members of Award Fund

Total award claimed: $10,422.42

Total award fund: 7,415.39

Calculation of distribution multiplier (DM)

DM = Total award fund

Total award claimed

DM = 0.71

Calculation of pro rata share (PRS) of award Fund

PRS = Original amount claimed X DM

Amount of pro rata distribution: $ 7400.60

Balance remaining in fund: $ 14.79

Total members in class: 255

Distribution of balance of fund

$0.06 to first 204 class members: $12.24

$0.05 to remainder: _2.55

Total balance $14.79

Recapitulation of distribution of award fund

Pro rata distribution: $7400.60

Fund balance distribution: 14.79

Total distribution: $7415.39


text:
    (No. 78-CC-2252
    Richard J. Franco, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 30, 1981.

    Terrence G. Draut, of Pratt, Calabrese & O’Donnell, for Claimant.

      Tyrone C. Fahner, Attorney General (Marsha J. Coporaso, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is an action for personal injuries suffered by Claimant. Evidence conceiving the facts was heard by a commissioner of this Court. The following summarizes the evidence.

On July 4, 1978, Claimant was operating a motorcycle in a northerly direction on Illinois Route 12, near its intersection with Route 59 in Lake County, Illinois. His friend, Anthony DeMuro, was also operating a motorcycle in the same direction. They were on their way to a Fourth of July picnic in Wauconda.

Claimant was traveling in the left lane slightly behind and to the left of DeMuro. In his discovery deposition, Claimant stated that DeMuro was riding behind him. At the hearing before the commissioner, Claimant testified that DeMuro was to his right. Both were traveling about 45 to 50 miles per hour. Both Claimant and DeMuro noticed a 2' x 4' board lying about 1M feet on the left lane of the highway. They each noticed the 2' x 4' board which was about 30 to 40 feet away. Claimant swerved to his left to avoid the 2' x 4' board on the road and went down to the left shoulder of the road when he struck what he described as a hole in the shoulder of the road. The shoulder was constructed of gravel and was an inch or two lower than the road. The hole was about 4 or 5 inches deep and about a foot in diameter.

From the testimony and photographs, it appeared that the hole was the difference in elevation between the gravel portion of the shoulder and the beginning of the paved portion of the shoulder. Claimant had travelled about 30 feet on the gravel before striking the depressed area. When he entered the shoulder, he did not apply his brakes, because he feared going into a skid but attempted to stop by releasing the gas pedal and attempting to steer his way out of the shoulder. When he struck the depression, he flew over the handlebars of his motorcycle and sustained his injuries. Lake County Deputy Sheriff, Myron Wimmer, testified that Claimant told him that Claimant had struck a bump in the road. Officer Wimmer observed no holes in the road and no objects on the road. There were no skid marks, the pavement was dry, and there were no observable obstructions to Claimant’s vision. Claimant was taken by ambulance to Condell Hospital, treated as an out-patient and released. His injuries consisted of severe scrapes on his back, elbows and foot.

His medical expenses and property damage to his motorcycle were paid by insurance except the towing and pharmacy bills.

Claimant testified that he lost five weeks of a summer job but was unable to supply any proof to substantiate his loss.

The claim is predicated on the State’s duty to maintain the shoulder of the highway in a reasonably safe condition.

In order to recover, Claimant must prove that the State had reasonable, actual or constructive notice of a defective or dangerous condition of the shoulder of the road. The record in this case is totally devoid of any evidence of either actual or constructive notice.

In the opinion of the Court, Claimant has failed to sustain the burden of proof and therefore the claim is hereby denied.


text:
    (No. 79-CC-0667
    Donald L. Adams, Administrator for the Estate of Barbara J. Adams, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 23, 1981.

    Harlan Heller, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Miller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimant brings an action sounding in tort pursuant to section 8(d) of the State of Illinois Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.8(d)). Claimant is the administrator for Barbara J. Adams, who was killed in an automobile accident which occurred at the intersection of Route 128 and U.S. Route 40, three miles east of Altamont, Illinois. Illinois Route 128 north of U.S. Route 40 divides the counties of Effingham and Fayette in the State of Illinois. The accident occurred when the decedent, Barbara Adams, proceeded on Route 128 in a southerly direction onto U.S. Route 40 where her vehicle was struck by a westbound vehicle being operated along and upon U.S. Route 40. The decedent died of the injuries sustained in the automobile accident on September 3, 1977.

Claimant alleges that the State was negligent in many respects, but essentially the claim revolves about the State’s claiméd negligence in failing to replace a stop sign that had been knocked down at the intersection of Illinois Route 128 and U.S. Route 40, and which controlled southbound vehicles on Route 128 as they entered the intersection of Route 128 and U.S. Route 40.

Claimant alleges, and the State does not dispute, that the stop sign governing southbound traffic on Illinois Route 128 was not standing for a period of several days prior to the accident resulting in the death of Claimant’s decedent. On August 29, 1977, the Monday before September 3, 1977, Tim Trigleth observed that the stop sign controlling southbound traffic on Illinois Route 128 was missing. Trigleth transversed Route 128 going to and from his place of employment. Joe Hartobben, an Altamont police officer, observed that the stop sign was damaged and was not standing on August 30, 1977. Hartobben radioed the Effingham city police, who in turn confirmed that the State police had been advised that the stop sign was down.

September 3, 1977, was on a Saturday. On the preceding Wednesday, Shirley Warner noticed that the stop sign was missing. On cross-examination, Mrs. Warner stated she did not call anyone about the sign being down, because there was a lot of construction going on in the area, so she didn’t think anything about it. She didn’t recall exactly what kind of construction was going on, but there were people working on the road, and she would see construction people out there when she would drive through the area where the stop sign was located. She said the construction people were “back pretty far from the intersection” on the Wednesday before the accident, and that she didn’t recall what they were doing. Their truck was orange. The witness recalled seeing men working on the road shoulders “doing something there”, but the witness didn’t “recall exactly whether it was repaving or what”.

James Wernsing, an Illinois Department of Transportation employee, testified that on August 29, 1977, there was work being done on Illinois Route 128 north of U.S. Route 40. The State employee was named Metzger. Metzger lived in Fayette County. In order to get from Vandalia to Route 128 and to get from Route 128 to Vandalia, Metzger would have had to pass the intersection of Routes 40 and 128. According to the records of the Department of Transportation, Metzger and his co-employee, Shelton, were cleaning dirt and debris by hand methods on Route 128 north of the intersection of Route 128 and Route 40. Metzger and Shelton would have been out of the truck, picking up trash along the road and loading it onto an orange State truck.

An expert witness called by the plaintiff, Paul Box, a traffic engineer, inspected the intersection and examined photographs of the intersection. Mr. Box identified a traffic manual effective and in force during the year 1977 relating to highway sign responsibilities of the State of Illinois. Box testified that it was a custom and practice among public agencies that safety signs such as stop signs should be replaced after having been knocked down or damaged within 36 hours.

Respondent does not dispute the evidence of Claimant, but argues that there was no evidence that the Respondent had “actually been contacted” regarding the damaged sign. Respondent argues, “it is clear from the evidence, or lack of it, that the State did not have actual knowledge of this dangerous condition”. Respondent argues “there is some indication that State crews may have been in the area of the intersection of Route 40 and Route 128, but there is nothing to show this conclusively.”

There is some evidence that the State had actual notice that the stop sign in question had been damaged. Joseph Hartobben testified, without objection, that he radioed the Effingham city police, who confirmed that the State of Illinois had been notified that the stop sign was down. This evidence was not objected to or rebutted in any way by the State of Illinois.

In addition to the direct evidence of notice, which was not rebutted, and perhaps more importantly, there was evidence that at least two State highwáy maintenance employees drove through the intersection on August 29, 1977 (the Monday before the collision). It is not disputed that at the timé the Department of Transportation employees went through the intersection, the stop sign controlling the southbound lane of traffic on Route 128 was missing. It is uncontradicted that the failure of these employees to report the fact that the sign was down did not comply with the standard of care required of DOT Employees. The presence of Department of Transportation employees at the intersection at times when the State concedes that the stop sign was missing should give constructive notice to Respondent of the absence of the sign. Visco v. State of Illinois (1953), 21 Ill. Ct. Cl. 480.

Respondent relies on Pyle v. State of Illinois, 29 Ill. Ct. Cl. 133, in suggesting that the State was not shown to be negligent in the case at bar. In Pyle, the stop sign was down 29 hours. In the present case, the stop sign was down for at least six days. This Court has imposed liability on Respondent where the State had constructive notice of defects. Visco v. State of Illinois (1953), 21 Ill. Ct. Cl. 480.

We believe, in the case at bar, that the State had both actual and constructive notice that the stop sign was down for at least 72 hours prior to the unfortunate accident in which Claimant’s decedent was killed.

Respondent argues, however, that Claimant’s decedent was negligent and that recovery should be barred due to her contributory negligence. The record shows that the view of a driver travelling in a southerly direction on Illinois Route 128 was partially obscured by vegetation and plants on the east right-of-way of Illinois Route 128. The stop sign controlling southbound traffic on Route 128 as it intersected U.S. Route 40 from the north was down as Mrs. Adams approached the intersection. There was some evidence that a passenger in Claimant’s vehicle saw a vehicle travelling diagonally on U.S. Route 40 prior to the accident. There is no evidence, however, that Barbara Adams saw any such vehicle or was alerted to the north boundary of the intersection which is the subject matter of this claim. There is no evidence that Barbara Adams proceeded “blindly” or knowingly drove into a dangerous situation. On the contrary, the evidence was clear that Barbara Adams was a driver of careful habits. We find that Claimant’s decedent was, at the time of the accident, free from contributory negligence.

Although it is clear that the State is not an insurer of all accidents upon its highways, the State does have a responsibility to correct dangerous defects of which the State has actual or constructive notice. (Finn v. State of Illinois, 24 Ill. Ct. Cl. 177; Perlman v. State of Illinois, 33 Ill. Ct. Cl. 28; Stedman v. State of Illinois, 22 Ill. Ct. Cl. 446; Weygandt v. State of Illinois, 22 Ill. Ct. Cl. 478.) In the case at bar, the State had more than ample constructive notice, if not actual notice, of the absence of this stop sign which created an extremely perilous condition for traffic southbound on Route 128.

It is true, and this Court has repeatedly held, that drivers utilizing highways of the State are charged with the duty of looking and seeing things which are obviously visible. (Pyle v. State of Illinois, 29 Ill. Ct. Cl. 133.) However, the only evidence with respect to the view of Mrs. Adams as she approached the northern edge of the intersection with U.S. Route 40 was that her view of westbound traffic on Route 40 was at least partially obscured; there is no evidence that there was obvious danger to southbound vehicles which could be readily observed.

It should further be observed that the intersection in question was not an obscure rural intersection. This is an intersection of an Illinois highway with a U.S. highway from which the Court may infer that traffic was more than incidental.

The life expectancy of Barbara Adams at the time of her death was 39.5 more years, and the economic loss sustained by her husband and children who survived her was in the sum of $273,320.00. This is far in excess of the applicable maximum award within the power of this Court.

Claimant is hereby awarded the sum of $100,000.


text:
    (No. 79-CC-0757
    Auffenberg Leasing, Inc., and Mearl Shelton, Claimants, v. The State of Illinois, Respondent.

      Opinion filed June 21, 1982.

    Theodore E. Diaz, for Claimants.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim is for property damages due to an accident which occurred March 18, 1978, at the intersection of Highway 159 and the west exit ramp of 1-64 in Fairview Heights, Illinois. There were two drivers involved in the accident, Dr. Peter Bartsch and Mearl Shelton.

Dr. Bartsch was driving north on Highway 159 and passing through the intersection with the west exit ramp of 1-64 at the time of the accident. Dr. Bartsch told police officers at the scene that the traffic light for his automobile was green as he went through the intersection.

Claimant Shelton was exiting 1-64 by the west ramp to proceed south on Highway 159 at the time of the accident. He also claims his light was green as he went through the intersection.

Claimant Auffenberg Leasing, Inc., owned the car Dr. Bartsch was driving. Both Claimants therefore have brought this suit, alleging that the State was negligent in maintaining the traffic signals.

The extent of the Claimants’ evidence is that Mr. Shelton testified that his light was green, the police officer testified that Dr. Bartsch said his light was green, and a passenger in a third car following Dr. Bartsch testified that he assumed the light was green, because the car in which he was riding did not slow down in preparation to stop for a red light. This witness never actually saw the traffic signals.

Respondent, on the other hand, presented evidence by the Illinois Department of Transportation that they had thoroughly checked the traffic signal following the accident and had determined that the system was operating perfectly. Mr. Waggoner, an electrical technician for the Department of Transportation, testified that this particular system was equipped with a back-up system that automatically switches the lights to a flashing red signal if the normal system fails and two green lights appear in conflict to each other. Mr. Verschuyl, the electrician who serviced the lights, testified that the secondary system was working perfectly when he checked, and it had not been tripped by conflicting green lights.

Evidence was also received as to the damage suffered by the owner of each vehicle.

It is the opinion of the Court that it is more probable that one of the drivers failed to properly observe the traffic light facing his vehicle and ran a red light. While the evidence indicates this was most likely done inadvertently by the driver who believed he had a green light, the Respondent cannot be held liable for the damages caused by the negligence of one of the Claimants. For the foregoing reason, the claim is denied.