source: Caselaw Access Project

author: Raucci, C.J.

license: Public Domain

text:
    (No. 89-CC-2715
    Karen Olenick, as Independent Executor of the Estate of Gloria Olenick, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 1, 1999.

    Munday & Nathan (Thomas Nathan and Lisa Pack, of counsel), for Claimant.

      Jim E. Ryan, Attorney General (Edward C. Seward III, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

On February 29, 1988, Gloria Olenick was killed when the motor vehicle she was operating collided with a northbound commuter train just east of the intersection of Lehigh and Howard in the Village of Niles, Cook County, Illinois. The evidence established that she turned left from southbound Lehigh to go eastbound on Howard. Unfortunately, she executed the turn improperly and for a brief distance drove eastbound in the westbound lanes before her vehicle was struck. What caused her to execute the turn improperly, thereby circumventing the grade crossing gates, forms the basis of this claim.

Gloria Olenick, a 57-year-old widow and mother of three, was the owner and operator of an advertising agency located a short distance from the scene of the collision. She had assumed responsibility for the operation of the agency after her husbands death in 1985. Rased on the lost income projections presented by Claimant, Mrs. Olenicks business was successful. She was familiar with the intersection of Lehigh and Howard since she had driven through it a countless number of times. The intersection itself is complicated by the existence of railroad tracks which are east of and run parallel to Lehigh. On the date in question, the traffic signals for north and southbound Lehigh remained green with the approach of a train from either the north or the south. Naturally, the east and westbound traffic lanes on Howard Street would be confronted with red lights during the approach of a train. In addition, the gates and lights which were designed in accordance with the Federal Highway Administration Code, the Manual of Uniform Traffic Control Devices and the Institute of Traffic Engineers Manual for Traffic Signal design, would become activated. There were, however, two additional signs which were activated for traffic coming southbound on Lehigh (such as Gloria Olenick) when the crossing gates were down and the flashing lights were operating. Located on both the east and west side of Lehigh on the south side of Howard, these signs were designed to advise motorists, such as Mrs. Olenick, that no left turns were allowed when the gates were down and the lights were flashing. These signs were working on the date of the collision.

The weather on February 29, 1988, was clear and dry The accident occurred shortly after 9:00 a.m. Therefore, in the seconds immediately before the collision as a commuter train approached Howard, Mrs. Olenick was on Lehigh operating her vehicle southbound and the light was green as she approached the intersection. Mrs. Olenick drove her vehicle directly in the path of a train seemingly unaware of the lights, gates and signs. Claimant has produced evidence to explain these actions.

At that time of the day at that time of the year, the sun would come up from the southeastern horizon. It is likely that Mrs. Olenick experienced sun blindness at the time she made her turn to go eastbound, causing her to enter the westbound lanes and missing the gates which had come down over the eastbound lanes. The explanation is more plausible than the Respondents contention that she was trying to get across the track ahead of the train.

Claimant has presented the testimony of a former Niles police officer who conducted an investigation of the intersection after this collision. By sitting at the intersection' at the .same time of the day as when Mrs. Olenick died, the officer could observe the problems the sun caused on a person looking in the direction of the gates and lights. Claimant established that an almost identical accident occurred at the very same location approximately two years earlier. The Niles police officer noted that the suns effect on sight lines at the intersection was considerable at certain times of the day.

Claimants expert witness opined that the intersection was hazardous because it did not have an all red sequence during the time trains were approaching and crossing Howard. He further opined that the “No Left Turn” signs were inadequate. The evidence established that the “No Left Turn” signs became active when the train that struck Mrs. Olenicks car was 1,300 feet south of the crossing. For approximately 30 seconds, the train approached Howard and the “No Left Turn” signs were on. It is likely that Mrs. Olenick was approaching Howard from the opposite direction, noticed the green lights for southbound traffic, started to make her left turn and became blinded by the sun, preventing her from seeing the lights and gates.

Claimant’s theoiy of liability rests on the fact that it was solely the State’s responsibility to decide upon the sequencing of the lights at the intersection, including the times when trains were present. Claimant admits that this crossing itself is not under the States control and is not contending that there was any defect in the gates and lights. The evidence establishes that the intersection did become dangerous during a window on certain days when the sun was at a particular place at a particular time, and this fact contributed to Mrs. Olenick s plight. However, the Respondent had placed two signs on the south side of Howard. The information provided by the various signs was somewhat contradictory and one of the “No Left Turn” signs was probably not visible to her. For Mrs. Olenick, the sun would have been a factor as she looked toward the southeast which was to her left. However, the sign on the southwest comer would not have been effected by the sun phenomena. Do these problems constitute sufficient basis to hold the Respondent liable for the death of Mrs. Olenick? We think not for the following reasons.

Mrs. Olenicks death was caused by a convergence of factors which were apparent to no one until after her death. Even after the prior accident, the problems previously discussed had never been recognized by the State or any other authorities. Certainly one accident in an otherwise functional intersection does not create notice of a dangerous condition. The prior accident could have been attributable to a number of other factors which cause train collisions all over the State. There was no obvious answer to what caused that collision and, therefore, the State gained no insight into the problem with the sun. In order to hold the State responsible, the Claimant must prove either actual or constructive notice of a dangerous condition. (Alsobrook v. State (1995), 48 Ill. Ct. Cl. 205.) Neither has been proved in this case.

The State is not an insurer of the safety of users of its highways. (Cotnerv. State (1987), 40 Ill. Ct. Cl. 71.) In order for Claimant to prevail, she must prove that the State had actual or constructive notice of the dangerous condition. (Norman v. State (1982), 35 Ill. Ct. Cl. 693.) “The mere fact that defective condition existed if, in fact, it did exist, is not in and by itself sufficient to constitute an act of negligence on the part of the Respondent.” (Palmer v. Northern Illinois University (1964), 25 Ill. Ct. Cl. 1.) Claimant, in order to prevail, must also show that the alleged defect was the proximate cause of her decedents death. Stanley v. State (1986), 39 Ill. Ct. Cl. 107.

While we are sympathetic to Claimant, we cannot on this record find liability on the part of Respondent.

It is therefore ordered, adjudged and decreed that this claim be, and it is hereby, dismissed with prejudice.


text:
    (No. 89-CC-3435
    Judith A. Moroz, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 3, 1999.

    Hamm & Hanna, Ltd. (Ronald L. Hamm, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Brian J. Dees and Christopher Higgerson, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This matter comes before us after hearing before Commissioner James E. Shadid. The Claimant commenced this action against Respondent State of Illinois as a result of a traffic accident with a state police vehicle. Claimant alleges that State Trooper Jeff Smith was negligent in the operation of his State vehicle.

On August 4, 1988, at approximately 12:55 a.m., an Illinois police vehicle driven by Trooper Smith was traveling southbound on Route 29 at its intersection with Washington Street in East Peoria, Illinois.

William Powers was a front seat passenger in the Moroz vehicle. He testified that as the Moroz vehicle approached the intersection, the traffic control device for the Moroz vehicle was red, turned to green and remained so as Claimants vehicle entered the intersection. He did not see or hear anything to suggest that an emergency vehicle was in the area. Upon entering the intersection, the Claimants vehicle was struck on the drivers side.

Claimant testified that as she approached the intersection her light was red; she slowed, the light turned green and she resumed her speed and entered the intersection while the light was green. She saw no emergency lights or heard any sounds to suggest that an emergency vehicle was in the area. She had looked both left and right before entering the intersection and saw no vehicle that would create an obstruction. She recalled seeing red lights a split second before being hit and being knocked unconscious.

Jeff Smith, an Illinois state trooper, testified that he was traveling northbound on Route 29 near the intersection of Washington Street in East Peoria, Illinois. He saw a Thunderbird traveling southbound with one headlight and taillight operating. While approaching the intersection, he had a green light, passed through the intersection, made a U-turn, went southbound and observed that he still had a green light. He recalled having turned on his red and blue lights, and wig-wag headlights after making the U-tum. He recalled an impact after entering the intersection, but did not know what he had struck. He was looking at the Thunderbird, and did not see the Moroz vehicle.

Both Powers and the Claimant were clear and consistent in their testimony. Even though they admitted the consumption of alcohol prior to the accident, there is no evidence that it affected their ability to observe or recall the facts, or Claimants ability to drive her vehicle.

Trooper Smiths testimony was not as consistent and the evidence indicates that his attention was focused upon the Thunderbird and not on the intersection. He also testified that the Illinois State Police did a reconstruction of the accident, but no one was called to testify to the findings of the reconstruction.

The driver of an emergency vehicle must exercise the standard of ordinary care in an emergency situation. In Bouhl v. Smith (1985),. 130 111. App. 3d 1067, 475 N.E.2d 244, the parties were involved in a motor vehicle accident. The citizen driver, Bouhl, was operating a vehicle on a two lane road nearing a “T” intersection. She had come to a stop behind other stopped vehicles. Officer Smith at that time was to the rear of and proceeding in the same direction as Ms. Bouhl. Officer Smith stated he was traveling below the posted speed limit and seeing the line of vehicles stopped, pulled into the oncoming lane of traffic to pass. At that time a vehicle turned onto the road at the intersection thus creating a head-on situation between the vehicle which had just turned and Officer Smith’s car. Smith then swerved his squad back into what would be the correct lane for his direction of travel, applied his brakes and slid into the rear of Bouhl’s vehicle. The juiy found for the Defendant. The Bouhl court, applying the standard set forth in Pedrick v. Peoria & Eastern R.R. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, reversed the trial court’s denial of Plaintiff Bouhl’s motion for judgment notwithstanding the verdict and remanded the cause to the trial court with directions to enter a judgment for the Plaintiff on the issue of liability. Bouhl, 435 N.E.2d at 245.

In Mayfield v. City of Springfield (1982), 103 Ill. App. 3d 1114, 432 N.E.2d 617, the court was presented with a factual situation similar, but distinguishable, to that of the Claimant in this matter. The facts in Mayfield disclose that an emergency vehicle in the act of answering a call collided with a citizen driver resulting in the death of the citizen and damage to nearby property. Ms. Mayfield was en route to a church function approaching an intersection where she was intending to make a left turn. She proceeded into the intersection as she had a green light. Officer Hughes at this time was proceeding west on the road which Ms. Mayfield was intending to turn onto. He deemed this call to be urgent. He activated his siren and flashing lights and drove toward the intersection where decedent was waiting to turn. The traffic light governing the right-of-way for traffic proceeding in the direction the officer was traveling was red. As he neared the intersection he used the left turn lane to pass a number of cars that were stopped. He then proceeded into the intersection where he collided with decedent’s vehicle.

The officers view of the intersection was obstructed or impaired by a school gymnasium, stopped vehicles, the setting sun and shadows cast by a building on a comer of the intersection. The jury concluded the defendant police officer was not negligent and as such denied recovery to Plaintiffs. As in Bouhl, supra, the Mayfield court reversed the trial court, held the jury’s verdict for naught and entered judgment for the plaintiffs, finding the defendant was negligent as a matter of law and remanded the decedent’s case for a determination of damages.

The Appellate Court stated:

“The driver of an authorized emergency vehicle may ‘* 9 * proceed past a red or stop signal or stop sign, but only after slowing down as may be required and necessary for safe operation.' [the Code, par. ll-205(c)2.] This suspension of the rales of the road is available only ‘when responding to an authorized emergency call’ and only ‘when due regard for the safety of all persons' is exhibited. This special rule governing drivers of emergency vehicles permits them to cautiously circumvent strict application of the traffic laws in the interest of hastening their mission, thus promoting the public safety and welfare. It does not permit them carte blanche authority to charge into heavily traveled urban intersections in defiance of all reason as if bearing the colors for General Pickett. To so construe the authority of Section 11-205 would undermine the very purposes of public safety and welfare that the statute was intended to serve.” Mayfield, supra, 432 N.E.2d at 619, 620.

To prevail Claimants must prove, by a preponderance of the evidence, the negligence of Trooper Smith was the proximate cause of injury to them and that damages naturally flowed from the injury. Stanley v. State (1986), 39 Ill. Ct. Cl. 107,110.

Mayfield, supra, did not discuss the standard of care. It held, as a matter of law, that the officer was negligent in that he failed to exercise “due regard” for the circumstances.

Bouhl, supra, does not clearly set forth the basis of the Court’s holding.

At 130 Ill. App. 3d 1067, at 1069, the Appellate Court stated:

“* * The question of negligence is measured by what a reasonable, prudent emergency vehicle driver would do under all of the circumstances, including that of the emergency. [Citations omitted] ° °

The Appellate Court then went on to address “ordinary negligence standards” and concluded that:

“We hold that under the circumstances here presented, the defendant has failed to carry his burden of proving that his vehicle was under sufficient control to proceed in the left-hand lane with due regard for the safety of others. Neither the presence of the unknown motorist, nor the existing weather and road conditions, nor the emergency to which Smith was responding provides an adequate explanation or excuse for the defendant’s failure to maintain control of his squad car so as to avoid colliding with the plaintiff s truck. Where, as here, it is clearly established that the plaintiff performed no act or omission which could in any way be considered negligent, and the perilous situation which led to the accident was a creation of the defendant emergency vehicle operator’s own negligence, then the defendant must be found negligent.”

As to the negligence of Trooper Smith, this Court has held that the conduct of a driver of an emergency vehicle is measured against a specific statutory standard contained in the Illinois Vehicle Code. Bauman v. State (1981), 34 Ill. Ct. Cl. 140,143-145.

A police vehicle is an authorized emergency vehicle. (625 ILCS 5/1 — 105.) The Court has held that a police officer in responding to an emergency call must use a siren when necessary to warn pedestrians and other drivers of his approach and drive with due regard for the safety of others. Bauman, supra, at 145.

In Mayfield, supra, the Illinois Appellate Court reversed the denial of a motion for judgment notwithstanding the verdict. A Springfield city police officer, while proceeding through an intersection, struck and killed a driver on her way to church. The Appellate Court found the officer was negligent. It cited the following facts: the officers view of the intersection was blocked by a gymnasium; his observation of the intersection was obstructed by vehicles stopped in the other lane of traffic; his vision was impaired by the setting sun glaring in his eyes; his perceptions were diminished by long shadows cast by a multistory building at the comer; and that it was physically impossible to have been driving 20 miles per hour.

We find that Claimant has met her burden as to liability and find the accident to have been caused by the negligence of Respondents trooper.

Claimant suffered a fractured pelvis, rib fracture, cerebral concussion and atelectasis. She has recovered from the injuries. Her injuries resulted in medical bills of $11,391.67, lost wages of $2,100 and pain and suffering.

Dr. Paulson treated her after her admission to the emergency room at St. Francis Medical Center. She was discharged after eight days. As of August 22, 1988, she had no major complaints. Dr. Ron Palmer treated her undisplaced pelvic fracture. His report indicates she needed rehabilitation, and was not allowed to run, jump or engage in heavy activities prior to November 11, 1988. He last saw her on that date and she was doing well with an occasional limp with heavy use of the leg. She had pain in the groin and posteriorly around the gluteal region. She was progressing well and the fracture had healed.

We find that Claimant is entitled to $11,391.67 for medical bills, $2,100 for lost wages, and $20,000 for pain and suffering.

It is therefore ordered, adjudged and decreed that Claimant is awarded thirty-three thousand four hundred ninety-one and 67/100 ($33,491.67) dollars in full and complete satisfaction of this claim.


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

text:
    (No. 89-CC-3839
    The Estate of Daniel Lee Krause by Dolores Teamann, Personal Representative and Individually, Claimant, v. Illinois Department of Transportation and Proviso Township, Respondents.

      Order filed August 25, 1994.

      Opinion filed July 10, 1995.

      Order filed August 26, 1999.

      Joint stipulation to dismiss and Order filed October 21, 1999.

    Christopher Hurley & Associates (Mark McKenna, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Tomas A. Ramirez, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, J.

This is a claim for wrongful death due to alleged negligence of the State. It is presently before the Court on the Respondents motion to dismiss. Oral argument was heard by the Court on June 20,1994.

The issue before the Court is whether the Claimant gave sufficient notice under section 22 — 1 of the Court of Claims Act. 705 ILCS 505/22 — 1.

The date of the injury was June 27, 1987; the personal representative was qualified on December 2, 1987; the notice was filed on March 1, 1988; and the complaint was filed on June 27, 1989. The notice stated that the-Claimant s decedent was killed “on Route 1-290 in the municipality of Proviso Township, County of Cook.” The Claimant’s complaint later amended the description of the accident scene to make it more specific, but that amendment was after the one year period allowed for notice under section 22 — 1 of the Court of Claims Act.

The Respondent argues that the notice was insufficient because it was unclear as to the exact location of the accident. The notice described a six mile stretch of interstate highway.

The standard for a description of the place of the accident in the notice is stated in Seaton v. State (1966), 25 Ill. Ct. Cl. 291, 293:

“But to be legally sufficient, a notice must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the notice itself * * Reichert v. City of Chicago, 169 Ill. App. 493, quoting from Benson v. City of Madison, 101 Wisc. 312.

Alternatively, it is stated in Seaton:

“" * * A notice would not be deemed fatally defective if, as a matter of fact, the city or state authorities could, without further information from the Claimant determine the exact place of the alleged incident.” p. 294.

In Katrein v. State (1982), 35 Ill. Ct. Cl. 340, 341, a notice stating the accident occurred on “Canal Road in between Ottawa and Marsailles,” a distance of eight miles, was ruled defective. We find that the notice given in the present claim, as in Katrein is defective as it violates the rule established in Seaton. From the description given, the authorities could not tell the accident’s location from the notice itself.

Further we find that a more specific description in the complaint filed more than one year after the date of the qualification of the personal representative fails as it does not give proper notice within one year of the date of qualification of the personal representative as required by section 22 — 1 of the Court of Claims Act.

It is therefore, ordered that the Respondent’s motion to dismiss is granted and that this claim is dismissed.

OPINION

Sommer, J.

On August 25, 1994, this Court entered an order granting the Respondent’s motion to dismiss this claim. The Claimant filed a petition for rehearing in a timely manner. The full Court heard oral argument on the petition for rehearing on March 29,1995.

The claim before us is for damages for personal injuiy. The issue presented in the motion to dismiss and the petition for rehearing is the adequacy of the notice filed as required by the Court of Claims Act in personal injury claims. 705 ILCS 505/22 — 1.

In the notice filed by the Claimant the “place or location” of the accident complained of was described as “on Route 1-290 in the municipality of Proviso Township, County of Cook.” This location turned out to be a six mile stretch of highway. The notice did include a statement that “A state police report was duly filed in this matter along with a coroner’s inquest held on August 6, 1987, in the County of DuPage, by James P. Paulissen, M.D.” Additionally, the notice failed to contain information concerning the attending physician and the treating hospital. 705ILCS 505/22 — 1.

In its order of August 25, 1994, this Court quoted from Seaton v. State (1966), 25 Ill. Ct. Cl. 291, at 293, as follows:

“But to be legally sufficient, a notice must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the Notice itself * * *.
# e #
* * * a notice would not be deemed factually defective if, as a matter of fact, the city or state authorities could, without further information from the claimant, determine the exact place of the alleged incident.”

The purpose of the notice is to allow the authorities to make an adequate investigation of the claim while the information is still fresh. Hershey v. State (1990), 43 Ill. Ct. Cl. 108.

The notice in this claim is different from that of a notice containing no information at all from which the authorities might easily learn of the location of the accident or the names of the attending physician and treating hospital.

As the Claimant provided information concerning the State police report and the inquest, the site of the accident and the name of the attending physician and treating hospital could be determined without "further information from the Claimant.”

Therefore, upon reconsideration we find that the notice filed in this claim was sufficient.

The Claimant has also filed a motion for leave to file a first amended complaint in order to conform its complaint to the requirements of section 790.50 of the Rules of the Court of Claims. We find nothing prejudicial to the Respondent in granting the motion. It is therefore, ordered that the Claimant’s motion for leave to file a first amended complaint is granted and this Court’s order of August 25, 1994 is stricken, and the Respondent’s motion to dismiss is denied, and this claim shall be returned to the Commissioner for hearing.

ORDER

Sommer, J.

This cause comes on to be heard on the parties’ joint stipulation to dismiss, due notice having been given, and the Court being advised, finds:

In pertinent part the parties’ stipulation provides:

2. Claimants’ complaint alleges that on June 27, 1987, Claimant’s decedent sustained fatal injuries while riding his motorcycle on westbound 1-290. Claimants’ complaint alleged that as the decedent came into contact with the curb separating 1-290 from the off-ramp, he lost control and was flipped off his motorcycle.

3. The parties hereto have agreed to a settlement of this claim in order to avoid further litigation. Respondent agrees to the entry of an award in favor of Claimant in the amount of sixty-one thousand, two hundred forty-three dollars and 76/100 ($61,243.76), in full and final satisfaction of the claim herein. The executed general release will shortly be filed with the Court of Claims.

4. It is understood and agreed between the parties that the settlement herein does not constitute an admission of any liability, nor have any expressions or representations been made by either party (or the attorneys therefor) as to any legal liability or other responsibility of any party hereto.

5. Each party agrees to assume its own costs and fees.

6. The Court of Claims will retain jurisdiction of this case, including enforcement of the settlement and release.

It is hereby ordered that the parties’ motion be, and hereby is granted, Respondent is directed to pay the agreed upon sum, and this claim is dismissed.

JOINT STIPULATION TO DISMISS

Sommer, J.

Now come the Claimants, the estate of Daniel Lee Krause by Dolores Teamann, personal representative, and Dolores Teamann, individually, by their attorney, Mark McKenna and Christopher Hurley & Associates and Respondent State of Illinois, by its attorney, James E. Ryan, Attorney General of Illinois, and hereby move this Court to dismiss the claim herein with prejudice, the matter in controversy having been resolved, with the settlement to be paid through Illinois Department of Transportation funds.

ORDER

Sommer, J.

This cause coming on to be heard on the joint motion of the parties hereto to dismiss the claim herein, and the Court being fully advised in the premises:

It is hereby ordered that the joint motion of the parties to dismiss the instant claim be hereby granted, and this claim is dismissed.


author: Raucci, C.J. Raucci, C.J.

text:
    (No. 90-CC-0656
    Geraldine P. Henley, Individually and as Special Administrator of the Estate of Patricia Kalafut, Deceased, Karen J. Henley, Cheryl L. Rocchino, and Michelle A. Henley, Claimants, v. Illinois Department of Mental Health and Developmental Disabilities and Howe Developmental Center, Respondents.

      Opinion filed February 23, 1999.

      Order on petition for rehearing filed February 29, 2000,

    Richard L. Pullano, for Claimants.
    Jim E. Ryan, Attorney General (Gary M. Griffin, Assistant Attorney General, of counsel), for Respondents.
   OPINION

Raucci, C.J.

This matter comes to be heard on the claims of Geraldine P. Henley, individually, and as special administrator of the estate of Patricia Kalafut, deceased, Karen J. Henley, Cheryl L. Rocchino, and Michelle A. Henley, for personal injuries resulting in the death of Patricia Kalafut (hereinafter collectively “Claimants”) due to the alleged negligence of the State of Illinois by and through its agents and employees at the Illinois Department of Mental Health and Developmental Disabilities (“DMHDD”) and Howe Development Center (“Howe”) in Tinley Park, Illinois. All of the Claimants are close relatives of Patricia Kalafut and seek compensation for the loss of society resulting from an incident that occurred on January 29, 1989, leading to the death of Ms. Kalafut, a disabled person. Claimants assert that the negligent acts and omissions on the part of Howe employees on January 29, 1989( were the proximate cause of Patricias death; specifically that, despite indications she would run away, Howe employees Ann Staples, Donna Jackson and Vivian Richards failed to prevent Patricia from fleeing her housing unit at the Howe facility and she was then injured and killed in an automobile accident.

The State asserts that all of the actions or inactions by its employees at Howe on January 29, 1989 were reasonable given the circumstances and that it fulfilled its duty of care to Patricia on that date; specifically that, the Howe employees provided adequate supervision of Patricia on January 29, 1989, and Patricia’s behavior on that date did not place the m notice she intended to flee Unit 307.

To determine whether Claimants should succeed in their claims and be awarded compensation, two separate issues must be determined prior to any calculation of damages: (1) whether the State of Illinois owed Patricia Kalafut a duty specific to the circumstances of this case; and (2) whether said duty was breached in a manner which proximately caused her injuries and death. The Claimants bear the burden of establishing the existence of a duty, a breach of that duty and an injury that was proximately caused by the breach. Thornburg v. State (1986), 39 Ill. Ct. Cl. 139.

The Claimants must show that there was a lack of proper and reasonable care and that the Respondents knew or reasonably should have known of, or predicted, the decedents sudden escape. See Calvin v. State (1982), 35 Ill. Ct. Cl. 611.

Background

The record of proceedings in this matter is extensive, as are the exhibits produced in support of the parties’ respective positions. _

The basic facts are largely agreed upon, but the many details attendant to the unfortunate incident are greatly contested by the parties. Details thought to be significant will be referenced as necessary, but upon an extensive review of the transcript of the proceedings, the exhibits submitted therein and the briefs submitted by each party, the following facts are necessary to the consideration of this claim.

On January 29, 1989, Patricia Kalafut (hereinafter “Patricia”) was a resident under the 24-hour care and supervision of Howe in Tinley Park, Illinois. Patricia had been permanently disabled and impaired from an early age but retained many physical and mental capabilities. For example: although non-verbal herself, she could understand and respond to verbal communications; she could feed, dress and wash herself; despite ambulatory limitations, she enjoyed nature walks, camping and playing certain games, and she could display and perceive certain emotions.

Since October 7, 1976, Patricia Kalafut had been a resident at Howe. On January 9,1989, Patricia was one of ten residents residing in House 307, a part of Unit 3. The ten residents of House 307 were supervised by two Howe mental health technicians on consecutive eight hour shifts. In addition, a shift supervisor was responsible for oversight of the ten houses in a given unit.

A “Rules and Regulation” handbook was not submitted for review, but testimony established that the staff was expected to follow certain rules or protocols in their supervision of the residents. When “unusual” behavior of one of the residents was observed, a house staff technician was to contact the shift supervisor to determine the best course of action. This was particularly appropriate when one of the two staff technicians was scheduled to take their allowed break or was in some way occupied. However, the clinical meaning of “unusual” in a mental health setting was not explored in great detail.

The residents were not to be left unsupervised at any time. The residents were not locked in their houses per DMHDD policy. Although closely supervised, any given resident was not physically restrained in any manner from leaving the house, unless a special circumstance necessitated restraint. Howe also had a policy for additional attention or supervision to a resident with special needs or maladaptive behavioral patterns. This special supervision is called a “baseline” where the so-called maladaptive behavior would be closely observed and monitored for a period of time until the behavior was resolved or different care arrangements were undertaken. Patricia Kalafut was placed on two separate “baselines” for running away/unauthorized absence in the two years prior to January 29, 1989, but she was cleared from that baseline by Howe personnel and under no special restriction or supervision on January 29, 1989.

In addition, Howe had a protocol that was to be followed by staff members in the event of a missing resident or the unauthorized absence of a resident. The protocol provided that a staff member who discovered the unauthorized absence or missing resident was to initiate a telephone call to the switchboard operator. The switchboard operator would then initiate a special “command conference call” whereby all telephones in the complex would ring in a special sequence announcing the emergency call and be responded to by all available personnel. The shift supervisor would determine from the response to the “command conference call” who was immediately available to search for the missing resident. It is inconclusive from the testimony presented whether this “command conference call” was ever initiated by Ann Staples or Vivian Richards.

On January 29, 1989, the staff technicians on duty in House 307 were Ann Staples and Donna Jackson. The shift supervisor was Vivian Richards. Ann Staples had worked at Howe for approximately 12 years and had known Patricia the majority of that time. On that date, Patricia was to take a home visit with her family. By all accounts, she was aware of the pending home visit and looking forward to it. At approximately 5:00 p.m., her family telephoned Howe and canceled the home visit. Patricia spoke with her family on the telephone regarding the cancellation and was observed to be hyper and agitated afterward. At the time of that telephone call, Patricia and the other nine residents of House 307 were doing “tabletop” activities. After the call, she returned the telephone book she was working on to the closet and put on her coat and boots. For a long period of time, Patricia whined aloud and paced rapidly about House 307; and in particular, she focused her attention on the large window at the front of the house by repeatedly standing before it and looking outside toward a parking lot. Ann Staples observed Patricias behavior and attempted to calm her. Ann Staples requested that Patricia remove her coat and sit down, but she was largely unsuccessful. Ann Staples realized in view of Patricia’s behavior that she was unhappy she would not be going for a home visit. This was the first time that a home visit had been canceled by Patricia’s family.

To Ann Staples, the agitated behavior of Patricia was not unusual as she had observed such behavior on many prior occasions. The numerous progress notes documenting Patricia’s care at Howe corroborated Ms. Staples’ testimony that similar behavior had been observed numerous times on days where Patricia did not attempt an escape.

At around 6:45 p.m., Donna Jackson took her break and left Ann Staples alone to supervise the ten residents of House 307. At approximately 6:55 p.m., Ann Staples heard the front door open and Patricia ran from House 307. Ann Staples, who had been seated at a table, ran to the door and called for Patricia to stop, which Patricia did momentarily before continuing out into the darkness in a southwesterly direction.

Ann Staples did not pursue Patricia due to the presence of the other nine residents in House 307. She immediately notified her supervisor Vivian Richards of the unauthorized absence.. When additional Howe personnel from House 310 came to supervise the remaining nine residents at House 307, Ann Staples began to search for Patricia in her car. In addition, Vivian Richards and another Howe employee joined the search immediately. Roth Ann Staples and Vivian Richards claim to have directly or indirectly initiated a “conference call” prior to beginning their search, but no confirmation of the call was placed into evidence. The initiation or lack thereof of the “command conference call” was a point greatly contested by the parties, but there was no direct corroboration for either party’s position.

Sadly, no Howe employee was able to locate Patricia before she was struck by an automobile on 183rd Street near the border to the Howe grounds. By the varying accounts, Patricia had been gone from House 307 for between five to fifteen minutes at the time she was struck by the automobile. Patricia Kalafut was transported to Olympia Fields Medical Center and pronounced dead at 7:38 p.m.

No issue was raised as to the qualifications or credentials of the Howe facility or any of the employees directly involved in this case.

No experts offered testimony on behalf of either party

Opinion

On January 29, 1989, Patricia Kalafut was a permanently impaired resident of Howe, but she retained many independent capabilities. Although her movements within the house where she resided were not restricted via physical restraints, she was supervised and monitored on a 24-hour basis by Howe personnel. It is undisputed that Howe and its personnel owed Patriciá Kalafut a duty of reasonable care to protect her from incurring a foreseeable injury. (See generally, Calvin v. State (1982), 35 Ill. Ct. Cl. 611.) However, as stated previously, the Claimants not only bear the burden of establishing the existence of a duty, but also that a breach of that duty has occurred and an injury has resulted from that breach. See Thornburg v. State (1986), 39 Ill. Ct. Cl. 139.

In determining whether Howe breached its duty to Patricia Kalafut and if so, whether the breach caused her death, it is significant that there was no expert testimony presented in that regard. The Claimants repeatedly assert that numerous actions and inactions by Howe employees were unreasonable and were the proximate cause of the death of Patricia Kalafut, yet they failed to present testimony through an expert, that substantiates those assertions. No testimony establishes that the actions or inactions fell below the standard of care for the mental health industry given the situation such as existed on January 29, 1989. It is acknowledged that expert testimony is not required, but it is equally acknowledged that such testimony would have been very helpful in resolving the many questions left for us to resolve. In the absence of direct evidence to the contrary, the presumption must be that Howe acted reasonably, but an analysis must be undertaken to determine whether any reasonable inferences can be gleaned from the record that demonstrate otherwise.

For the sake of this decision, it is also conceded that in the absence of adequate supervision, an injury to a person/resident such as Patricia Kalafut was reasonably foreseeable. Therefore, our focus is necessarily on the question of whether the actions of the Howe employees were appropriate and reasonable during the period after Geraldine Henley called to cancel her home visit until the time when Patricia fled House 307.

Prior to-January 29,1989, Patricia Kalafut was known by Howe to have “run away” from the facility itself or from individual employees. In 1987 and 1988, she had “run away” from her supervisors at the facility on 11 occasions. “Running away” is considered maladaptive behavior by Howe and as a result of those incidents, Patricia Kalafut was placed on two separate “baselines” for that behavior. Patricia was observed and supervised more closely for that particular behavior during those “baseline” periods but she was not placed in any restrictive living situation or restrained in any manner different from the other nine residents of her house. She was not physically fettered nor was she kept in a “locked” environment. Claimants contend that her past, known histoiy of running away put Howe on notice of her intent to “run away” on January 29, 1989, thereby necessitating affirmative measures to prevent that action. This contention is simply not proven to the requisite certainty required by law.

After each of the “baseline” periods, Patricia was “cleared” of further restrictions or supervision for the “running away” behavior and was treated as any other resident. She was not considered a “runner” despite her history. The Respondent indicates that the decision not to restrain Patricia Kalafut, despite her histoiy, was made by qualified psychiatric professionals and other personnel at Howe. No testimony was offered that Howe made an “institutional” mistake by taking Patricia off the “runner baseline.” In the absence of any contradictoiy testimony, Howes decision to treat Patricia in the manner she was being treated as of Januaiy 29, 1989, must be considered within the standard of care. This record does not support a conclusion that it was not within the standard of care.

In light of the above, the particular circumstances that occurred on January 29, 1989 must be analyzed to determine if any unreasonable conduct by the individuals Ann Staples, Donna Jackson and/or Vivian Richard proximately caused injury to Patricia Kalafut. On that date, Patricia Kalafut was upset that her mother was not coming to Howe to pick her up for a home visit. The testimony and evidence presented is clear that Ann Staples, Donna Jackson and Vivian Richards all observed Patricias agitated behavior prior to her fleeing House 307. The testimony is also clear, however, that none of those persons expected Patricia Kalafut to flee House 307 into the dark night, despite their observations of her behavior. Ann Staples admitted that Patricia deserved more attention due to her behavior, but did not agree that said behavior put her on notice of Patricias impending flight. Ann Staples was not overly alarmed by Patricias behavior because, per her own testimony and numerous progress notes identified by the Respondent, she was accustomed to Patricia exhibiting such behavior. In particular, Ann Staples associated such behavior with times before and after Patricia Kalafuts home visits. She did not identify Patricias behavior as unusual conduct which would have necessitated review with a supervisor for a determination of action.

There was no evidence presented by Claimants that correlated Patricia Kalafuts past episodes of hyper-type behavior with episodes of running away. The Illinois State Polices Division of Internal Investigation, explored a possible correlation between home visits and running away, but its results were inconclusive at best.

The actions of Donna Jackson and Vivian Richards were not a focus of Claimants’ complaints and were reasonable given our analysis of the actions of Ann Staples, the central figure in this claim.

Claimants’ position that Patricia Kalafuts behavior immediately after her mother’s telephone call on January 29,1989 up to the time she actually ran away from House 307 put the Howe employees on notice so that they should have restricted her access to the front door is not irrational; but neither is it adequately supported by the evidence necessary to carry the burden placed upon the Claimants by law. It is just as plausible that Ann Staples’ attempts to calm Patricia Kalafut down and to allow her time alone to calm herself down was rational conduct given the particular situation and adequate given her duties owed the other nine residents of House 307. Ann Staples had cared for Patricia Kalafut during a large part of her 12 years at Howe and knew her very well. Her judgment on January 29, 1989, given the special situation should not be discarded, particularly in light of the lack of testimony directly criticizing her decision(s). It is not sound public policy to impose an opinion of “unreasonableness” upon the actions of a qualified mental health staffer when no contrary testimony of any well-qualified mental health personnel was presented.

We must also address the Claimants’ allegation that Howe’s failure to follow its own security procedures resulted or contributed to the death of Patricia. The Claimants allege that if all the procedures had been followed, “Patricia would easily have been caught.” This assertion is unsupported by solid evidence and cannot be resolved in Claimants’ favor.

The Claimants and the Respondent cite numerous Court of Claims decisions in support of their respective positions. All of those cases are factually distinguishable from the present matter, but the standard of review provided remains fundamentally unchanged.

In the present matter, the Claimants have failed to carry their burden of proving that negligent conduct in breach of a duty owed to Patricia Kalafut proximately caused the injuries resulting in her death. As such, their claim for damages is denied.

It is therefore ordered, adjudged and decreed that this claim is dismissed and forever barred.

ORDER

Raucci, C.J.

This cause comes on to be heard on Claimants’ petition for rehearing following our opinion entered on February 23, 1999. Claimants’ petition was argued before the full Court on August 24,1999.

We have carefully considered Claimants’ petition and the rather extensive record herein. Claimants have raised no issues which were not previously considered by the Court but argue that the Court erred in its assessment of the testimony and evidence herein to find Respondents negligently breached its duty owed to Patricia Kalafut and proximately caused the injuries resulting in her death.

We find that the Claimants have not proven their burden that Respondents acted negligently and breached a duty owed to decedent which proximately caused Ms. Kalafut’s injuries by a preponderance of the evidence.

The Claimants assert that pursuant to Mizowek v. DeFranco (1976), 64 Ill. 2d 303,1 Ill. Dec. 32, 356 N.E.2d 32 a new hearing is required for Claimants. In Mizowek, the Supreme Court found that the jury’s verdict was contrary to the manifest weight of the evidence and a new trial should have been granted. In our matter, however, this Court is charged with determining the credibility of the witnesses and the weight to be afforded the testimony. Claimants fail to provide substantive inconsistencies in the testimony of Ann Staples or any other witness to warrant a rehearing. The inconsistencies must be substantial and related to a material issue and not a collateral or irrelevant matter.

Ann Staples testified as to numerous instances where Patricia Kalafut became aggressive, agitated or "hyper” that never led to Patricia Kalafut’s attempted flight or actual flight from the facility. Ms. Staples’ testimony is unrefuted. Although she believed Ms. Kalafut’s behavior deserved more attention, Ms. Staples, in her experience, did not equate this behavior with notice of Ms. Kalafut’s impending flight. Ms. Staples, through her long relationship with Ms. Kalafut and experience in her field did not believe the behavior exhibited necessitated a review with a supervisor for a determination of action.

Claimants’ witnesses did not adduce evidence that would support a finding that Respondents engaged in a negligent course of conduct which breached a duty owed to Patricia Kalafut proximately causing the injuries and resulting in Ms. Kalafut’s death.

Wherefore, we must affirm our prior opinion denying these claims and Claimants’ petition for rehearing is hereby denied.

       By other conflicting accounts, the telephone call was placed at closer to 6:00 p.m.; however, contemporaneous reports of the incident indicate the call occurred at around 5:00 p.m. which is corroborated by Patricia’s mother, Geraldine Henley.


author: JANN, J.

text:
    (No. 90-CC-1997
    Richard Berry, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 7, 2000.

    Anthony M. Petrone, for Claimant.
    Jim E. Ryan, Attorney General (Edward C. Seward III, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant, Richard Berry, seeks an award of damages for injuries suffered while an inmate at Stateville Correctional Center on April 24, 1989. His complaint seeks $75,000 in damages for pain and suffering and mental anguish as a result of the alleged negligence of Respondent in injuring Claimant and failing to provide adequate medical treatment for the injury.

Hearing was held before Commissioner Jeffrey T. Whipple on August 17, 1998. Claimant was granted several extensions of time to file his brief and proposed excerpts of the record by Commissioner Whipple. No briefs were received from either party.

Claimant appeared and testified on his own behalf at the hearing. Respondent presented Captain Christopher Hughes, a correctional officer at Stateville presently and assigned to Claimants unit at Stateville on April 24,1989. Captain Hughes witnessed the events surrounding Claimants injury and apparently summoned medical assistance on his behalf. However, Captain Hughes did not witness the actual injury.

The following is a summary of the often conflicting evidence of record.

Mr. Berry was an inmate resident of Unit A, protective custody at Stateville, from 1987 to 1990. He was again incarcerated in an IDOC facility from 1994 to 1996. On the hearing date, he stated he resided in Chicago and was employed as a computer information systems support manager. He had completed a bachelor of science degree and had begun a masters program since his 1996 release.

On the late afternoon of April 24, 1989, Claimant was proceeding in a chow line outside of H Block with approximately 200 other inmates. A fight broke out between several inmates and, very rapidly, a crowd of inmates began to “move” toward the combatants to watch.

The record at hearing and the States departmental report show that the IDOC officers on duty on April 24, 1989, were Officer Roosevelt Robinson, who was positioned in the south yard tower, Officer Julius Bradley in the south wall tower (tower 10) and Officer David Caeman, Captain Gordon Lemons, Sergeant Lee and Officer Hughes who were in various positions on the grounds or yard area where the inmates were proceeding to the chow hall. We note that the positions of Officers Bradley and Robinson were apparently misidentified by the parties at hearing based upon the evidence, in the departmental report.

The evidence indicates a fight among three inmates, at least one of whom had a knife or homemade blade, was proceeding in front of the H-House gate. IDOC officers, including Sergeant Lee, Captain Lemons and Officer Caeman, attempted to separate the inmates and radioed for assistance, and an IDOC officer was slightly injured. It is not clear who first radioed the call for assistance, but all officers agree that a call was received and that they all became aware of the fight within a matter of seconds by both radio and visual inspection. Verbal warnings were given by the officers in the yard to cease and disperse, as a large group of inmates had begun moving to surround the combatants. The IDOC officers were attempting to handcuff the fighting inmates and the struggle continued as a warning shot was fired from one of the towers. When the inmates failed to fall back, a second warning shot was fired and verbal warnings were given to lay down to avoid injury. One of the tower officers fired a third shot in the vicinity of the combatants when he observed they were still struggling with corrections officers.

Claimant was struck in the left upper portion of his scalp by a single pellet of a number 4 bird shot, subsequently determined to have been fired from Officer Bradleys shotgun (the first shot). Claimant was not involved in the disturbance and was standing at least 40 feet away. He was knocked down by the shot and taken to the infirmary immediately after order was restored. He was assessed and x-rayed to determine where the pellet was lodged. The pellet was removed and his wound was cleaned and sutured with eight stitches. He was given a tetanus shot and pain medication for a headache. He was then admitted to the infirmary for observation. The medical records introduced at hearing indicate Claimant demanded to make a phone call later that evening. Upon denial of his request, Claimant broke the windows of his room in the infirmary and was removed to a "special evaluation ward” where he was segregated and given a psychiatric assessment. He was returned to his cell on April 26, 1990, and continued to be monitored and treated by the medical staff until May 3,1990, when it was noted the wound was healing well after removal of the sutures and his headaches were responding well to an analgesic. Claimant presently has a one- to two-inch scar which is covered by his hairline, and he suffers no permanent effects from the injury. He reported pain at the time of the injury and treatment.

Claimant asserted that the actions of IDOC officers resulting in his injury constituted the use of excessive force and violation of IDOC procedure. An IDOC internal investigation report was accepted into evidence. The internal report includes statements of the corrections officers on duty and Claimant. An Investigator Heltsley interviewed the witnesses and submitted the report. We are not advised of how the investigatory process began or what actions, if any, resulted from its findings.

Captain Hughes testified that he had filled out an incident report but was not interviewed by the internal investigator. He further stated that all disturbances are investigated. No further testimony or evidence was offered by either party as to the ramifications of such a report or the weight to be given its contents in our deliberations. However, no direct rebuttal of the facts or findings was offered by Respondent. Both Captain Hughes and Claimant stated that the practice of firing warning shots during a disturbance is within normal practice and procedure in correctional institutions. Both further acknowledged that, in more serious disturbances, deadly force may be employed.

Our review of the record leads to the conclusion that the internal investigation report and its underlying statements and reports are the best evidence available as to the events at issue.

The statements of the IDOC officers are consistent as to a perception of real danger to the three officers attempting to separate and subdue the inmates who were fighting in the midst of nearly 200 other inmates. All agreed that the warning shots fired from the towers were necessary and appropriate. There were also statements by several of the officers that, as officers were in imminent physical danger, firing at inmates would be justified. None of the IDOC officers knew Claimant had been wounded until the altercation was over and the other inmates left the yard. Claimant lay prone when Captain Hughes observed his wound, then summoned the medical technicians.

The officers’ statements on the incident date clearly indicate that no one knew how Claimant was wounded or by whom. Claimant alone asserted that he was certain the first shot fired had injured him. The confusion among the IDOC staff is understandable, considering the physical layout of the yard and towers and the presence of a large group of inmates surrounding the fight.

Officer Robinson was thought to have fired the shot which injured Claimant early in the investigation. Robinson stated he saw the inmates and officers fighting and a group of 15 to 20. inmates moving toward the fight. Robinson called for assistance and heard a shot fired from elsewhere in the yard while on the radio. He then fired a warning shot over the heads of inmates and staff in the vicinity of H-House, and repeated a verbal warning to cease and disperse. Most of the inmates had either moved away and lay prone on the ground or against the fence after Robinson’s first shot, but a group of 15 to 20 inmates remained standing near the officers and inmates who were still fighting. Robinson then fired a second shot at the closest inmate involved in the fight. He observed no person shot as a result. The fight stopped and order was restored immediately after Robinson’s second shot.

Officer Bradley heard, via radio, of the disturbance between inmates and IDOC staff. He could not see the fight, but knew that there were only three officers in the yard and over 100 inmates en route to the chow hall. He immediately fired a warning shot in the general vicinity of H-House over the heads of the inmates in an effort to quell the disturbance.

Both Robinson and Bradley had recently qualified with all departmental weapons issued, including the model 870 Remmington shotguns, per the report. The shotguns were collected and subjected to a ballistic analysis at the Illinois State Police Crime Lab, along with a sample of the standard issue number 4 shot. The pellet removed from Claimants scalp on April 20, 1990, was also analyzed to determine whether Claimant had been struck by ricochet, rather than direct, fire. Extensive tests employing a laser sight and recreation of the Claimants position in the yard were done to establish Unes of sight and trajectory of weapons fire from the south yard and south wall towers.

The tests concluded that Claimant was most probably struck by a pellet from Officer Bradley’s shotgun. They found that it would have been virtually impossible for Officer Robinson’s fire to strike Claimant, unless he was leaning out of the tower at an extreme angle.

The report concluded that Claimant was an innocent victim shot by a pellet from Officer Bradley’s weapon and that “the charge of use of excessive force is substantiated in that Bradley shot Beriy tiying to quell a disturbance while Beriy was an innocent bystander.” (at page 4 of internal investigation report dated 8/22/89, joint exhibit A.)

We have no evidence to determine the basis for the finding of “use of excessive force,” other than the fact that Claimant was wounded. Ironically, the facts recorded in the report actually lead to the conclusion that there was no intent to injure on the part of either officer, and that Claimant’s injury was the purely accidental result of warning shots fired according to the standard IDOC policy referenced by the report.

The Court has held that a prison officer faced with an inmate disturbance is afforded a wide range of discretion as to the force which may be used. The total circumstances are to be considered in determining whether an officers conduct was negligent. Hall v. State (1994), 46 Ill. Ct. Cl. 391, citing Hamilton v. State (1987), 40 Ill. Ct. Cl. 191 and Simmons v. State (1991), 44 Ill. Ct. Cl. 304.

It is well settled that the State is not an insurer of the safety of inmates in its custody. However, the State owes a duty of reasonable care under the applicable circumstances to prevent inmates from suffering harm at the hands of other inmates. (Petrusak v. State (1987), 39 Ill. Ct. Cl. 113,114, Phipps v. State (1991), 44 Ill. Ct. Cl. 105, 109.) We interpret this duty to include restoration of order as quickly as possible in the event of a disturbance. But for the conclusion of the IDOCs internal investigation report, we would find Respondents actions reasonable under the circumstances. However, as the report is unrebutted and unexplained, we must consider its findings determinative of the issue of negligence imputed to the State.

Claimants counsel represented at hearing that he seeks only damages for pain and suffering and has apparently abandoned any claim for negligent medical care. There is no evidence of out-of-pocket expense or permanency of injury. Claimants testimony as to his prior medical history is rather contradictory and was found less than credible by the Commissioner. The medical records indicate a pre-existing history of numerous medical complaints, including headache and insomnia, and continuing requests for prescription pain medications during his juvenile incarcerations. Similar complaints and requests for pain medication are recorded for the balance of Claimants incarceration which followed his injury, with few objective findings as to alleged maladies.

We find Claimant has presented evidence to support an award of $3,000 for pain and suffering as a result of his injury.

Claimant is hereby awarded $3,000 in full satisfaction of his claim.


author: Sommer, J. Epstein, J.

text:
    (No. 90-CC-2246
    Addie Jones, Claimant, v. Illinois Department of Mental Health and Developmental Disabilities, Respondent.

      Opinion filed February 18, 1998.

      Opinion on rehearingfiled April 3, 2000.

    Legal Assistance Foundation of Chicago (Andrew Cohen, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Tomas A. Ramirez, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This cause comes to be heard on cross-motions for summary judgment filed by the parties, due notice having been given, and this Court being fully advised, finds that the issues involved in this claim are identical to those in Radaszewski v. State (1998), No. 91-CC-1076, (unpublished, see 51 Ill. Ct. Cl. 407). In the Radaszewski claim, which was orally argued before the Court and briefed, this Court found in a detailed opinion that there was no damage to the Claimant and, thus, the Respondents motion for summary judgment was granted and the claim was dismissed.

It is therefore ordered that the Respondents motion for summary judgment is granted and this , claim is dismissed.

OPINION ON REHEARING

Epstein, J.

This 1990 claim for repayment of $13,371.42 of the Claimants 1987-88 social security benefits that were remitted to the Department of Mental Health and Developmental Disabilities (DMHDD), which then paid them to itself to reimburse part of the Respondents charges for Claimants care and treatment at the Elgin Mental Health Center (ELGIN MHC), is back before us for the third and last time.

Posture of this Claim

We previously denied this claim on cross-motions for summary judgment, relying on Radaszewski v. State (1998), No. 91-CC-1076 (unpublished, see 51 Ill. Ct. Cl. 407), which denied a similar claim for repayment of a Claimants social security benefits paid to DMHDD by itself, primarily for want of proven consequential damages, (order of February 18, 1998) (Sommer, C.J.)

Ms. Jones, ably represented by the Legal Aid Foundation, timely filed a petition for rehearing from our order denying this claim. Claimant argued that Radaszewski was erroneously decided, that this case is distinguishable from Radaszewski on several factual grounds, and that, in any event, this Claimant suffered genuine, substantial and proven damages, unlike the technical or de minimus damages in Radaszewski. The Respondent did not file a response.

On petition for rehearing, the Court found that the record in this case was inadequate and remanded the claim to Commissioner Elizabeth M. Rochford for an evidentiary hearing to ascertain additional facts and to determine whether this case is distinguishable from Radaszewski. (order of December 18,1998.) (Sommer, C.J.)

That hearing was held in June, 1999, at which the parties jointly submitted two stipulations: stipulation A, as to facts; and stipulation B, as to the authenticity of various documents. No testimony was taken, but legal arguments were presented. This claim is now before us for reconsideration on the parties’ stipulations, the summary judgment record, the complaint and Commissioner Rochford’s report to the full Court.

Nature of the Claim

Claimant alleges that the Respondent violated the “informed consent” requirement of section 5 — 111 of the Mental Health Code (405 ILCS 5/5 — 111) (hereinafter section 5 — 111) when DMHDD’s mental health center applied for, and obtained, designation as Claimant’s “representative payee” from the federal Social Security Administration (SSA). That designation enabled DMHDD to pay itself with the Claimant’s social security benefits, which it proceeded to do. Claimant claims damages in the amount of her social security benefits that were diverted from her to the Respondent pursuant to the DMHDD’s wrongful assumption of the controlling role as her representative payee. This is the same theoiy of liability as in Radaszewski, supra.

The federal and state law context is crucial to an understanding of the issues in these cases. Under section 407(a) of the Social Security Act (42 U.S.C. 407(a)), a beneficiary’s social security benefits are insulated from all creditors, including health care providers, despite the otherwise valid and enforceable debt of the beneficiary for his or her care and treatment. Illinois law, to the same effect, exempts social security benefits from creditor remedies. 735 ILCS 5/12 — 12001(g)(1).

Thus, absent a voluntary payment of such care and treatment charges by the beneficiary (or by his representative payee), there is no lawful way that the Respondent could obtain Claimant’s SSA benefits to pay for her care. For DMHDD to obtain control of social security benefits as a beneficiary’s “representative payee” and then to make voluntary payment to itself is essentially the only legal method — other than persuasion — for the State to obtain those funds to offset its cost of care and treatment. That procedure has been the subject of specific legislation (i.e., section 5 — 111) and litigation (See Brown v. Murphy (1996), 278 Ill. App. 3d 981, 664 N.E.2d 186) in Illinois.

In Radaszewski, supra, this Court first examined these issues. In that case, we found a violation of the section 5 — 111 informed consent requirement, but denied an award for lack of consequential damages. In Radaszewski, we also rejected that Claimant’s alternate liability theory: that the Respondent had violated the social security regulations and common law fiduciary principles by paying itself once it became Radaszewskis representative payee. No such claim is advanced in this case.

The Facts

Claimant, Addie Jones, had been a resident of DMHDD facilities at various times from 1979 to 1992. Until November 3, 1987, Claimants mother, Addie Sims, had been designated by the Social Security Administration as the representative payee for the Claimant’s social security benefits. During that 12 to 13 year period, Addie Sims made payments to DMHDD through EMHC in excess of $6,700 for the Claimant’s care, (stipulation A, pars. 2, 3.)

On November 3, 1987, the SSA certified EMHC as the designated payee for Claimant’s social security benefits, replacing her mother, Addie Sims, in that capacity. That change was made pursuant to a request of the EMHC, which did not receive the Claimant’s consent to its appointment as her designated payee, did not inform her of the consequences of the new designation or of her rights under section 407(a) of the Social Security Act, and did not identify to SSA any alternative payees for the Claimant (stipulation A, pars. 4-7) as required by regulation.

EMHC did not disclose to SSA, as the SSA representative payee application form requests, the identity or availability of a parent of the beneficiary, although Claimants mother was alive, living in Illinois and available, and had been the payee until then, (stipulation B.) Claimant affirmatively refused to consent to the change in representative payee by refusing to sign a consent form that had been tendered to her at EMHC. (exhibit 5, stipulation B.)

From November 1987, when EMHC was designated as Claimants representative payee, to November 1988, when that designation terminated (which this record does not elucidate), EMHC paid Claimant’s social security benefits to itself (i.e., to DMHDD and thus to the Respondent) in the aggregate amount of $13,171.42. (stipulation A, par. 5.)

Claimant acknowledges that she received the benefit of care at EMHC from November 7, 1979, to January 14, 1992, at a total cost paid by the Respondent of $149,358.60. She has reimbursed the Respondent a total of $30,698.99, and acknowledges that she now owes an outstanding balance to the Respondent for care and treatment of $118,659.61. (Over the years, DMHDD mailed Claimant notices of determination [of charges] pursuant to section 5 — 111 of the Mental Health Code (405 ILCS 5/5 — 111), but Claimant never disputed any of the charges, (stipulation A, pars. 9, 10.)

The Informed Consent Liability Issue

Claimant contends (1) that in the (stipulated) absence of her informed consent, the EMHC violated section 2 — 511 in obtaining the status as her “designated payee” from the SSA, (2) that, but for the Respondent’s illegal appropriation of her designated payee status, the Respondent would not have been able to collect, or otherwise obtain, any of the $13,000+ of her social security benefits that it did obtain, and (3) that she therefore suffered damages in the amount of the funds that EMHC paid itself as her designated payee as a consequence of the violation of the statute.

This Court has addressed these issues before, in Radaszewski v. State, supra, in which we held (1) that the Respondent had there violated the informed consent requirement of section 5 — 111; (2) that the Respondents agents did not act improperly as representative payee by paying the Claimants social security benefits to itself; but (3) that, nevertheless, the violation was, at most, technical and was not proven to have given rise to consequential damages.

In this case, there is no serious doubt that the Respondent violated Claimants informed consent rights under section 5 — 111. As in Radaszewski, supra, we need not here decide whether or not to apply the section 5— 111 informed consent standard announced in 1996 in Brown v. Murphy, supra, which would arguably be a retroactive application of that decision to the 1987 events of this case, as it is clear that the facts here fall dramatically short of the clear command of the statute on its face.

Radaszewski and the Damages Issues

The only genuine issue presented here is whether this Claimant has proven damages resulting from the Respondents improper assumption of authority as her representative payee distinguishable from Radaszewski, supra. The Respondent maintains that this Claimant, like Mr. Radaszewski, did not suffer any damages because his social security benefits were, in fact, used for his benefit, i.e., for his care and treatment by DMHDD, and that this Claimant, like Radaszewski, simply failed to prove that the Respondents takeover as the representative payee resulted in a demonstrated loss.

In her arguments on rehearing, the Claimant advances four points to distinguish this case from Radaszewski: (1) that this case involves an overt refusal to consent by Ms. Jones rather than merely a technical failure of the Respondent to obtain informed consent from Mr. Radaszewski; (2) that the conduct of DMHDD in this case was significantly worse than in Radaszewski in that the DMHDD affirmatively misled the SSA by failing to disclose the availability of Ms. Jones’ parent to serve as representative payee as requested by the SSA form that the Respondent’s staffers submitted to SSA (exhibit 5); (3) that the Claimant-beneficiary in this case, unlike in Radaszewski, already had a proper (and related) representative payee whom the Respondent displaced by its improper actions without any showing of grounds to terminate the Claimant’s mother as representative payee; and (4) that Ms. Jones’ mother, when she was the representative payee, in fact made payments to DMHDD for Claimant’s care, totalling $6,912. (See transcript, 6-17-99, at 5-7.)

This case clearly involves a more egregious violation of section 2 — 511 than in Radaszewski, supra, as well as a misrepresentation to the SSA, and a likely violation of federal law. However, those differences are matters of degree, or are matters that are not cognizable in this Court. The degree of violation of section 2 — 511 is immaterial to our determination of liability and to the damages issues under this statute. Liability turns on whether or not the statute was violated, not how badly it was violated. This Court’s decision in Radaszewski, supra, did not reject that Claimant’s reimbursement claim because the violation there of section 2 — 511 was itself de minimus or solely because his social security payments were used by DMHDD for his benefit (i.e., to pay for his care and treatment).

Damages for violation of section 2 — 511 are also not determined by the degree of misconduct; the statute does not provide a statutory damages formula, nor authorize exemplary damages. Like any other Claimant, Ms. Jones now (like Mr. Radaszewski before her) must establish consequential damages by competent proofs. Thus, Claimants first three distinctions, while genuine and substantial, are immaterial for purposes of section 2 — 511 liability.

Claimants last two points, however, taken together, are supportive of this Claimant’s damages claim as well as distinguishable from Radaszewski, supra. By her evidence and the parties’ stipulation, this Claimant has established that during the years when her mother served as her representative payee, before being ousted by DMHDD, her social security benefit payments were being utilized for purposes other than her care and treatment by DMHDD, except of course for the $6,912 of voluntary payments made by her mother to DMHDD. This demonstrates a material and genuine loss of the Claimant’s social security benefits attributable, in fact, rather than in mere theory, to DMHDD’s takeover, except to the extent that they were already being paid to DMHDD, which on a conservative approach utilizing the limited evidence in this record, will be taken to average $531 per year over the 13 years during which those voluntary payments were made.

On this record, which is substantially undisputed, we find that the Claimant has established damages of $13,371.42, less the $531 that would have been paid to DMHDD during the 12 months that DMHDD displaced her mother as representative payee. Accordingly, we will award Claimant the sum of $12,840.42 as her damages for the Respondent’s violation of section 2 — 511.

Conclusion

For the reasons set forth above, it is hereby ordered, Claimant Addie Jones is awarded the sum of $12,840.42 in full satisfaction of this claim.

       Section 407(a) of the Social Security Act (42 U.S.C. 407(a)), preemptively insulates social security benefits from all debt collection:
      “ * none of the moneys paid or payable or rights * * * under this title [42 U.S.C. §404 et seq.] shall be subject to execution, levy, attachment, garnishment or other legal process, or to the operation of any bankruptcy or insolvency law.”
      The Illinois courts have followed the federal courts’ strict enforcement of this prophylactic statute and have recognized the U.S. Supreme Courts consistent refusal to countenance judicial exceptions from section 407(a). In re Estate of Meritt (1995), 272 Ill. App. 3d 1017, 651 N.E.2d 680; Bennett v. Arkansas (1988), 485 U.S. 395; Philpott v. Essex Co. Welfare Bd. (1973), 409 U.S. 413.

       Claimant does not contend in this case, as she might, that EMHC, while acting as her representative payee, violated a fiduciary duty to her when it paid her social security benefits to the State for her care. Under federal regulations (20 C.F.R. section 404.2021(a)(3), section 404.2040(a), (b)) and the social security caselaw, e.g., Crytes v. Schafer (1990), 743 F. Supp. 677, 680, aff d, King v. Schafer (8th Cir. 1991), 940 F.2d 1182, 1185, cert, denied, 502 U.S. 1095 (1992), and as this Court held in Radaszewski, supra, such payment is not a perse violation of law or fiduciary duly.
      Nevertheless, the conduct of a state agency acting as a "representative payee” under the Social Security Act, like that of any other financial agent, is subject to fiduciary duties to the beneficiary that arise from that relationship: to use the social security benefits in the best interests of the beneficiary. In re Estate of Merritt, supra. Merritt makes it clear that DMHDD, as the Claimant’s representative payee, may pay itself with her social security benefits, but as with any other representative payee, it does not have to, and, under section 407(a) of the Social Security Act, cannot be compelled to do so.


author: Raucci, G.J.

text:
    (No. 91-CC-0522
    Richard Reed, Individually and as Administrator of the Decedents’ Estates of Pamela Jo Reed and Jason Wesley Reed, and as Guardian of the Estates of Angela Reed and Marilyn Reed, minors, and Marilyn Kuykendall and Roy Kuykendall, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 19, 1999.

    Coffey & Griesbach (Mary Coffey, of counsel), for Claimants.
    Jim E. Ryan, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, G.J.

Introduction

The Claimants bring this action for compensatory damages pursuant to the Illinois Court of Claims Act, 705 ILCS 505/8. The Claimants assert that they were damaged by the negligent and reckless conduct of an Illinois State Trooper who failed to prevent an intoxicated person from driving an automobile which caused a car accident that resulted in the deaths of Pamela Jo Reed and her unborn son, Jason Wesley Reed, and injuries to Richard Reed, Angela Reed, Marilyn Reed, Marilyn Kuykendall, and Roy Kuykendall.

At approximately 2:25 p.m., on September 11, 1988, the Claimants were riding in a Chevrolet Suburban north on Illinois 130 in Jasper County when they were struck head-on by a vehicle driven by Larry Rice. His blood alcohol concentration about three hours after the accident was 0.131.

Pamela Reed died as a result of multiple injuries, including hemorrhage due to multiple traumatic lacerations of the inferior vena cava, the hilum of the left lung and the uterine blood vessels and walls; a fractured sternum; numerous rib fractures; multiple fractures of the right humerus, right tibia, right fibula and pelvis; and a severe avulsion of the scalp. Jason Reed, Richard and Pamelas unborn son, died as a result of multiple lacerations of the uterine walls and blood vessels and the traumatic separation of the placenta from the uterus. Marilyn Reed, Richard and Pamelas 18-month-old daughter, suffered brain damage with post-traumatic encephalopathy and seizures, fractures of both femurs and a fractured mandible. Marilyn Kuykendall, Pamela Reed’s mother, suffered fractures of the right arm, left ankle, pelvis, left leg, and internal injuries, including injuries to the bladder and bowel. Angela Reed, Richard and Pamela’s seven-year-old daughter, suffered a hematoma on the back of her head and a laceration on her right leg. Roy Kuykendall, Marilyn Kuykendall’s husband, suffered fractured ribs. Richard Reed suffered a fractured wrist.

Medical bills for Pamela Reed totaled $1,151.40. The funeral bill for Pamela and Jason Reed was $5,636.37. Marilyn Reed’s medical bills totaled $60,224.18. Richard Reed’s hospital bill was $1,332.75. Angela Reed’s hospital bill was $573.40. Marilyn Kuykendall’s medical bills totaled $190,983.67. Roy Kuykendall’s hospital bill was $322.30.

Approximately two hours before the accident, Rice was a passenger in a vehicle driven by Kathy Irby, who was stopped by Illinois State Police Trooper Thomas Gardner and was arrested for driving under the influence of alcohol. When Gardner left the scene with Irby in his patrol car, he left Rice behind with the keys in the ignition of the car. Rice then drove the car away and caused the accident.

The Claimants contend the State was negligent by leaving Rice in Irby’s car with the keys when Gardner knew or should have known Rice was intoxicated, that he would drive the car and that when Rice drove the car, injury was likely to result.

A hearing was held before Commissioner Stephen R. Clark on August 26, 1997, at which testimony was heard from Rick Reed, Kathy Irby, Roy Kuykendall, Lorrie Crabtree, Jeannie Fritschle, Martinsville Police Chief Herman Davidson, Clark County Deputy James Bender and Trooper Thomas Gardner. In addition, the Commissioner admitted into evidence the deposition of Larry Rice, photographs of the accident scene, photographs of Marilyn Reed and Marilyn Kuykendall following the accident, the Claimants’ medical records and bills, a police report regarding a traffic stop of Rice the day before the accident, State Police reports on the accident and Irby’s arrest, reports from the Martinsville Police Department and Clark County Sheriffs Department regarding Irby’s arrest, a written statement by Gardner given to State Police investigators, a statement from Elaine Jackson who reported seeing Rice shortly before the accident weaving on Illinois 130 as he was driving south, Rice’s military identification, and portions of Gardner’s discovery deposition. The State also submitted a departmental report. Both parties submitted briefs, and on February 9, 1999, the Court heard oral arguments.

Issues

The disputed issues in this case are (1) whether Gardner had a duty to protect the Claimants from Rice’s drunken driving; (2) whether that duty, if it existed, was breached; and (3) whether certain payments made to the Claimants should be deducted from any recovery as set-offs.

The Evidence

The testimony and evidence show that Rice was, in fact, intoxicated at the time of Irbys arrest. Rice, Irby, Crabtree and Fritschle went to a concert near Effingham, where Rice drank a twelve-pack of beer in about 17 hours. The group then went to the Orchard Inn, where Rice drank three or four more beers in about one hour. After leaving the bar, Rice drove. Crabtree and Fritschle complained that Rice was driving erratically. They ended up getting out of the car and walking away. Rice admitted that it was obvious that he was too drunk to drive. Irby took over driving and was pulled over shortly thereafter driving 87 m.p.h. two miles west of Martinsville on U.S. 40. Rice appeared to be asleep in the back seat. He admitted that he was intoxicated at that time as well. Although Irby and Rice stated that they were not drinking in the car, there were two open beers in the front seat area and an opened bottle of whiskey in a cooler in the back seat area.

When Gardner stopped Irby’s vehicle, he asked for identification from both Irby and Rice. Irby did not have a driver’s license, and Rice produced a military identification card that ,,-as issued after his discharge. Gardner testified that he could not read all of the information on the card, so he asked Rice for further identification. Rice had a traffic ticket issued the previous day, but his driver’s license had been taken for bond. Rice did not mention the ticket and “got mouthy” with Gardner, which caused Gardner to call for back-up officers to assist him, which Gardner testified that he does when someone at a traffic stop becomes uncooperative or agitated. Clark County Sheriffs Deputy James Render and Martinsville Police Chief Herman Davidson responded to the call and assisted Gardner in keeping an eye on Rice and searching the vehicle. Gardner testified that he told Rice that he would not be driving the car because he did not present a drivers license.

Irby, who appeared intoxicated, failed a field sobriety test, at which time Gardner arrested her and placed her in his patrol car. Irbys testimony revealed veiy little additional information about the incident. She stated that she was intoxicated and remembered little or nothing. Gardner testified that, after placing Irby under arrest, he talked to her about making arrangements for the removal of her car. He stated that the options were to have the vehicle towed, get permission from the driver to have another licensed driver at the scene take the vehicle, or allow the car to remain, if it did not pose a traffic hazard, while the driver made arrangements for its removal within a reasonable time. Gardner testified that, at first, Irby wanted the car towed, but then stated that she wanted to contact her sister and have her remove the car. Irby testified that she only remembered a discussion about towing the car and did not remember any discussion about her sister removing the car. By that time, Bender and Davidson had arrived. Davidson stood towards the right rear of the vehicle and watched Rice. Bender assisted Gardner in searching the car. Rice was allowed to stay in the vehicle while it was searched. Bender and Gardner removed the remaining alcohol from the car. They both testified that the interior of the vehicle smelled of alcohol but they did not attempt to determine whether the odor was coming from the car or from Rice. Gardner testified that he could have asked Rice to get out of the car to talk to him outside the car to determine if Rice had alcohol on his breath. Gardner also stated that he could have ticketed Rice for illegal transportation of alcohol because of his proximity to the opened whiskey bottle. Gardner said he could have arrested Rice if he still could not produce proper identification.

Davidson and Bender testified that Bender told Rice that if he drove, he could be arrested for driving under the influence of alcohol (DUI). Despite their testimony that they saw no signs that Rice was intoxicated, and despite Benders testimony that he would not have arrested anyone for DUI based on what he saw or heard from Rice, there had to be some indication for Bender to give such a warning.

Gardner testified that he simply forgot to remove the car keys from the ignition before he left. He stated that either Bender or Davidson had reminded him to take the keys. However, Davidson testified that Gardner told him that he was leaving the keys at the scene because Ir-by’s sister was going to pick up the car. Bender testified that he didn’t remember any discussion about the keys and did not remember telling Gardner not to forget the keys. However, Gardner was much more candid about being reminded about, and forgetting, the keys.

The Law

In order to recover against the State for negligence, the Claimant must prove by a preponderance of the evidence that the Respondent was negligent, that the negligence was the proximate cause of the Claimant’s injuries, and damages. Mackowiak v. State (1982), 35 Ill. Ct. Cl. 315; Moldenhauer v. State (1978), 32 Ill. Ct. Cl. 514.

But first, the Claimant must establish that the State owed the Claimant a duty of care. (Kurtz v. Wright Garage Corp. (1994), 262 Ill. App. 3d 1103,1107, 635 N.E.2d 897, 200 Ill. Dec. 558.) In general, the relevant factors to be considered by a court in determining the existence of a legal duty include (1) the reasonable foreseeability of injury, (2) the likelihood of injury, (3) the magnitude of guarding against the injury, and (4) the consequences of placing that burden upon the defendant. Id.

In Anderson v. State (1988), 40 Ill. Ct. Cl. 126, we considered the issue of whether a duty exists when a trooper allows an intoxicated person to drive and that person later injures other persons in a drunken driving accident. The Court granted the States motion to dismiss for failure to state a cause of action because the Claimant failed to allege a duty on the part of the State. We stated:

"Traditionally, claims such as this fall under a rule of law sometimes known as the ‘public duty’ rule. This rule states that a police officer’s duty to enforce the law is a duty owed to the public generally and not to individual persons; therefore, police officers and their employers are not liable to individuals injured even if an officer failed to do his or her duty. (Mallder v. Rasmussen (1986), 145 Ill. App. 3d 809, 495 N.E.2d 1356.) An exception to this rule exists where the police enter into a special relationship with a person who is subsequently injured (Mallder; supra), but no such relationship existed in this case.”

We followed the 1987 Fourth District case of Fessler v. R.E.J., Inc. (1987), 161 Ill. App. 3d 290, 514 N.E.2d 515, 112 Ill. Dec. 852, in rejecting the application of section 319 of the Restatement of Torts 2d, which places a duty of reasonable care to control third persons that the defendant knows or reasonably should know to be likely to cause bodily harm to others. Fessler was another drunk driver case. The Court there examined the “public duty” doctrine which states that the duty of police to preserve a community’s well-being and to prevent the commission of crimes is owed to the public at large, not to specific individuals. (Fessler, 161 Ill. App. 3d at 295.) An exception to this rule is where police have assumed a special relationship or are under a special duty to an individual which elevates his status beyond that of a member of the general public. The elements of this exception are:

“(1) the municipality must be uniquely aware of the particular danger or risk to which the plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions on the part of the municipal employees must be either affirmative or wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality.” Id. at 296.

We are constrained by the law to deny this claim.

Because we find there is no liability on the part of Respondent, it is unnecessary to consider the .remaining issues.

It is therefore ordered, adjudged and decreed that these claims, and each of them, are dismissed and forever barred.