author: Patchett, J.

text:
    (No. 85-CV-0530

      In re Application of Maria Perez.

      Opinion filed May 16, 1985.

    Warren C. Dulski, for Claimant.
    Neil F. Hartigan, Attorney General (Alison P. Breslauer, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This claim arises out of an incident that occurred on June 17, 1984. Maria Perez, mother of the deceased victim, Alexia Concepcion, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on November 20, 1984, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant’s deceased daughter, Alexia Concepcion, age 28, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: murder. Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1.

2. That on June 17,1984, the victim was shot by her estranged husband. The incident occurred in an apartment located at 7035 North Sheridan, Chicago, Illinois. Police investigation revealed that prior to the incident, the victim and offender were involved in a verbal dispute over their recent divorce. During this dispute, the offender produced a handgun and shot the victim in the head. The offender then turned the weapon upon himself and committed suicide. The victim was taken to Edgewater Hospital, where she was pronounced dead on arrival.

3. That the Claimant seeks compensation for funeral expenses and for loss of support for the victim’s minor child, Robert Concepcion, age 6 years, 7 months, at the time of the incident.

4. That the Claimant incurred funeral and burial expenses in the amount of $3,523.70. Pursuant to section 2(h) of the Act, funeral and burial expenses are compensable to a maximum award of $2,000.00.

5. That the minor child, Robert Concepcion, was totally dependent upon the victim for support.

6. That under a judgment order for adoption filed in the Circuit Court of Cook County, Illinois, County Department, County Division, No. 84 Co 1281, the victim’s minor child, Robert Concepcion, was legally adopted by the Claimant, Maria Perez.

7. That the minor child, Robert Concepcion, born November 12,1977, was 6 years, 7 months of age at the time of the incident. Robert Concepcion will attain the age of majority on November 12, 1995, which is 137 months after the incident.

8. That prior to her death, the victim was employed by the Chicago Transit Authority and her average monthly earnings were $1,214.75.

9. That section 2(h) of the Act states “* * * loss of support shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.”

10. That based on $750.00 per month, the maximum compensation for loss of support for 137 months is $102,750.00, which is in excess of $15,000.00, the maximum amount compensable under section 10.1(f) of the Act.

11. That this claim complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

12. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant.

13. That the Claimant has received no reimbursements as a result of the victim’s death that can be counted as an applicable deduction under section 7.1(7) of the Act.

14. That after making all the applicable deductions under the Act, the pecuniary loss resulting from the victim’s death is in excess of the $15,000.00 maximum allowed in section 10.1(f) of the Act.

15. That the Claimant’s interest would be best served if the award hereunder would be paid pursuant to the installment provision of section 11.1 of the Act.

It is therefore, hereby ordered that the sum of $15,000.00 (fifteen thousand dollars) be and is hereby awarded to Maria Perez, mother of Alexia Concepcion, an innocent victim of a violent crime, to be paid and disbursed to her as follows:

(a) $2,250.00 (two thousand two hundred fifty dollars) to be paid to Maria Perez in a lump sum;

(b) 17 (seventeen) equal monthly payments of $750.00 (seven hundred fifty dollars) each to be paid to Maria Perez for the use and benefit of Robert Concepcion;

(c) In the event of the death or marriage of the Claimant or the Claimant’s children, it is the duty of the personal representative of the Claimant to inform this Court in writing of such death or marriage for the purpose of the possible modification of the award.


source: Caselaw Access Project

author: POCH, J.

license: Public Domain

text:
    (No. 85-CV-0608

      In re Application of Theotis Jennings.

      Order filed March 18, 1985.

    Theotis Jennings, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Alison P. Breslauer, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an incident that occurred on August 5, 1984. Theotis Jennings, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on December 19, 1984, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, Theotis Jennings, age 27, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: battery. Ill. Rev. Stat. 1979, ch. 38, par. 12-3.

2. That on August 5,1984, the Claimant was beaten for no apparent reason by unknown offenders. The incident occurred in a theater at 25 Madison, Chicago, Illinois. After the initial incident, the Claimant was taken by an unknown person to 2600 East 87th Street where he was found by police. The Claimant was taken to South Shore Hospital for treatment of his injuries. The offenders have not been apprehended.

3. That the Claimant seeks compensation for medical/hospital expenses only.

4. That section 2(h) of the Act states that loss of earnings shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.

5. That the Claimant was not employed for the six months immediately preceding the date of the incident out of which this claim arose and therefore suffered no loss of earnings compensable under section 2(h) of the Act.

6. That the Illinois Department of Public Aid has assumed the responsibility for the medical/hospital expenses which the Claimant incurred as a result of the incident.

7. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant.

8. That the Claimant has received no reimbursements that can be counted as applicable deductions.

9. That the Claimant did not suffer a pecuniary loss as a result of the incident.

10. That section 6.1(b) of the Act limits the right of compensation to persons who have suffered a pecuniary loss of $200.00 or more attributable to a violent crime resulting in the injury or death of the victim.

11. That this claim does not meet a required condition precedent for compensation under the Act.

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


text:
    (No. 85-CV-0709

      In re Application of Malinda Wilson.

      Opinion filed April 15, 1985.

    Malinda Wilson, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Alison P. Breslauer, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an incident that occurred on April 22, 1984. Malinda Wilson, wife of the deceased victim, Ronald Wilson, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on January 21, 1985, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant’s deceased husband, Ronald Wilson, age 26, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: driving under the influence of intoxicating liquor, where the offender has been convicted of this offense. Ill. Rev. Stat. 1979, ch. 38, par. 11 — 501.

2. That on April 22, 1984, the victim was fatally injured when the car he was driving was struck head-on by a car driven by the offender, who was intoxicated. The incident occurred at 113th and State Streets, Chicago, Illinois. The victim was taken to Roseland Community Hospital where he expired a short time after arrival. The offender was apprehended and convicted of driving under the influence of alcohol.

3. That the Claimant seeks compensation for funeral expenses and for loss of support for herself and her minor children; Shawn Wilson, age 5, Jermaine Wilson, age 2, and Rachel Wilson, age 1.

4. That the Claimant incurred funeral and burial expenses in the amount of $4,358.85. Pursuant to section 2(h) of the Act, funeral and burial expenses are compensable to a maximum award of $2,000.00.

5. That the Claimant and her minor children, Shawn, Jermaine and Rachel Wilson, were totally dependent upon the victim for support.

6. That prior to his death, the victim was employed by Spring/Borg Warner Corporation and his average monthly earnings were $1,078.08.

7. That section 2(h) of the Act states “* * * loss of support shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.”

8. That the victim was 26 years of age at the time of the crime. According to the U.S. Department of Health, Education and Welfare, Vital Statistics of the United States, 1978, Life Tables, volume II, his life expectancy would have been 72 years. The projected loss of support for 46 years is $414,000.00, which is in excess of $15,000.00 which is the maximum amount compensable under section 10.1(f) of the Act.

9. That this claim complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

10. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant.

11. That the Claimant has received $27,000.00 in reimbursements from a life insurance policy as a result of the victim’s death, $2,000.00 of which can be counted as an applicable deduction under section 7.1(a)(7) of the Act.

12. That after making all the applicable deductions under the Act, the pecuniary loss resulting from the victim’s death is in excess of the $15,000.00 maximum allowed in section 10.1(f) of the Act.

13. That the Claimant’s interest would be best served if the award hereunder would be paid pursuant to the installment provision of section 11.1 of the Act.

It is therefore, hereby ordered that the sum of $15,000.00 (fifteen thousand dollars) be and is hereby awarded to Malinda Wilson, wife of Robert Wilson, an innocent victim of a violent crime to be paid and disbursed to her as follows:

(a) $2,250.00 (two thousand two hundred fifty dollars) to be paid to Malinda Wilson in a lump sum;

(b) Seventeen (17) equal monthly payments of $750.00 (seven hundred fifty dollars) each to be paid to Malinda Wilson for the use and benefit of herself and minor children, Shawn, Jermaine and Rachel Wilson;

(c) In the event of the death or marriage of the Claimant or the Claimant’s children, it is the duty of the personal representative of the Claimant to inform this Court in writing of such death or marriage for the purpose of the possible modification of the award.


text:
    (No. 85-CV-0740

      In re Application of Linda Hutcherson.

      Order filed February 15, 1985.

    Linda Hutcherson, pro se, for Claimant.
    Neil F. Hartigan, Attorney General, for Respondent.
   POCH, J.

This matter comes before the Court upon Claimant’s notice of intent to file a claim and petition for extension of time in which to file claim under the Illinois Crime Victims Compensation Act.

The incident occurred on December 17, 1980, and Claimant’s notice of intent and motion for extension of time were filed on January 8,1985.

Section 6.1 of the Crime Victims Compensation Act (111. Rev. Stat., ch. 70, par. 76.1) states that a Claimant is entitled to compensation under this Act if “within 6 months of the occurrence of the crime he files a notice of intent to file a claim with the Attorney General and, within one year of the occurrence of the crime upon which the claim is based, he files an application, under oath, with the Court of Claims . . .” The statute further states “upon good cause shown, the Court of Claims may extend the time for filing the notice of intent to file a claim and application for a period not exceeding one year.”

The Crime Victims Compensation Act was enacted by the legislature to aid and assist crime victims under certain circumstances to receive compensation to help pay for the damage they sustained. The legislature also provided the rules under which proceedings must be had to claim the benefit. The legislature further provided that the hearing agency in crimes of this nature was the Court of Claims. The Court of Claims is bound by the acts of the legislature and all procedures set forth by the legislature must be followed by the Court before benefits can be awarded.

The reason given by Claimant for failure to file within the period set forth in the statute is that she was unaware of the Crime Victims Compensation Act and only recently became aware of it. It is the Court’s opinion that lack of knowledge on the part of Claimant is not an exception provided for under the rules of the Crime Victims Compensation Act.

Claimant, having failed to abide by the rules provided in the Crime Victims Compensation Act, is not entitled to an award. Award is hereby denied.


text:
    (No. 85-CV-0897

      In re Application of Maria Marquez.

      Opinion filed May 15, 1985.

    Maria Marquez, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Alison P. Breslauer, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This claim arises out of an incident that occurred on June 2, 1984. Maria Marquez, sister of the deceased victim, Alfonso Castro, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on March 19, 1985, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant’s deceased brother, Alfonso Castro, age 32, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1).

2. That on June 2,1984, the victim was shot by an offender who was not known to him. The incident occurred at the Matchualas Social Club, 1511 West Irving Park, Chicago, Illinois. Police investigation revealed that following a dispute between the offender and another individual, the offender produced a gun and fired it several times. Two of the gunshots struck the man with whom the offender was arguing. Another shot passed through a wall and struck the victim in the chest. The victim was taken to Illinois Masonic Hospital where he was pronounced dead on arrival. The alleged offender has been apprehended and is presently being prosecuted for murder.

3. That the Claimant seeks compensation under the Act for funeral expenses only. The Claimant was not dependent upon the victim for support.

4. That funeral and burial expenses were paid by the Claimant in the amount of $2,985.00. Pursuant to section 2(h) of the Act, funeral and burial expenses are compensable to a maximum amount of $2,000.00. Ill. Rev. Stat. 1979, ch. 70, par. 72(h).

5. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

6. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims, (except in the case of an applicant 65 years of age or older) and the amount of benefits, payments .or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veteran Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal social security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant.

7. That the Claimant has received no reimbursements as a result of the victim’s death that can be counted as applicable deductions.

8. That after making all the applicable deductions under the Act, the Claimant’s loss is in excess of the $2,000.00 maximum award deemed compensable under the Act for funeral benefits.

It is hereby ordered that the sum of $2,000.00 (two thousand dollars) be and is hereby awarded to Maria Marquez, sister of the deceased victim, Alfonso Castro, an innocent victim of a violent crime.


text:
    (No. 85-CV-0983

      In re Application of Homero Rodarte.

      Order filed May 10, 1985.

    Homero Rodarte, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Alison P. Breslauer, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an incident that occurred on March 24, 1984. Homero Rodarte seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on April 5, 1984, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on March 24, 1984, the victim and five others died of extensive burns as the result of a fire. The incident occurred in the apartment where the victim resided, located at 4448 South Hermitage, Chicago, Illinois. The victim was pronounced dead on arrival at Mercy Hospital. The investigation conducted by the police concluded that, due to the extensive burning and the collapse of the building, the cause of the fire could not be determined. Police records indicate that the incident was classified as an apparent accidental fire death. In addition, the medical examiner’s certificate of death classified the victim’s death as an accident.

2. That the Claimant seeks compensation for funeral expenses of the deceased victim, Santos Lupercio, age 10.

3. That funeral expenses of the six deceased victims in this incident totaled $10,394.64, or $1,732.44 for each victim’s funeral. A donation of $333.33 was made toward each victim’s funeral by Midwest Nut and Seed Company, leaving a balance of $1,399.11, which was paid by an unknown person or persons.

4. That the Claimant has submitted no substantiation to indicate that he incurred or paid for any portion of the funeral expenses of the deceased victim, Santos Lupercio.

5. That in order for a claimant to be eligible for compensation under the Act, there must be evidence of one of the violent crimes specifically set forth under section 2(c) of the Act. Ill. Rev. Stat. 1979, ch. 70, par. 72(c).

6. That an accidental fire is not one of the violent crimes specifically set forth under section 2(c) of the Act.

7. That the Claimant has not met the required conditions precedent for compensation under the Act.

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


text:
    (No. 85-CV-1026

      In re Application of Kimberly Hoff.

      Opinion filed May 15, 1985.

    Kimberly Hoff, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Alison P. Breslauer, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This claim arises out of an incident that occurred on January 23, 1985. Kimberly Hoff, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71, et seq.

This Court has carefully considered the application for benefits submitted on April 16, 1985, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, Kimberly Hoff, age 25, was a victim of a violent crime, as defined in section 2(c) of the Act, to wit: battery (Ill. Rev. Stat. 1979, ch. 38, par. 12— 3).

2. That on January 23, 1985, the Claimant was injured during the course of a robbery attempt. The incident occurred on the comer of Orleans and Dickens Streets, Chicago, Illinois. The offender approached the Claimant and demanded money. When the Claimant refused, the offender hit her several times in the face. The Claimant sought medical attention at Swedish Covenant Hospital for the treatment of her injuries.

3. That the Claimant seeks compensation for medical/hospital expenses and for loss of earnings.

4. That the Claimant incurred medical/hospital expenses in the amount of $1,959.51, none of which was paid by insurance, leaving a balance of $1,959.51.

5. That the Claimant was employed by the Chicago Park District prior to the injury and her average monthly earnings were $314.08. Claimant was disabled and unable to work from January 25, 1985, to February 3, 1985, for a period of 5 working days.

6. That section 2(h) of the Act states that loss of earnings shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less. Ill. Rev. Stat. 1979, ch. 70, par. 72(h).

7. That based on $314.08 per month, the maximum compensation for loss of earnings for 5 working days is $71.40.

8. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

9. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal social security payments payable to dependents of the victim andthenet proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant. Ill. Rev. Stat. 1979, ch. 70, par. 80.1(e).

10. That the Claimant has received no reimbursements that can be counted as an applicable deduction.

11. That pursuant to section 18(c) of the Act, the Court may order that all or a portion of an award be paid jointly to the applicant and provider of services. In the instant case, the Court finds this section applicable and orders that joint payment be made. Ill. Rev. Stat. 1979, ch. 70, par. 88(c).

12. That the amount of the $200.00 deductible should be prorated respectively in accordance with the percentage of the compensable loss.

13. That after considering the applicable deductions, the Claimants loss for which she seeks compensation is $1,830.91, based upon the following:

Com- Less % of pensable $200.00

Amount Deductible Total

Swedish Covenant Hospital $1,834.51 90.3% $1,653.91

Michael J. Plunkett, M.D. 125.00 6.2% 112.60

Loss of Earnings 71.40 3.5% 64.40

Total $2,030.91 100.0% $1,830.91

It is hereby ordered that the sum of $64.40 (sixty-four dollars and forty cents) be and is hereby awarded to Kimberly Hoff, an innocent victim of a violent crime.

It is further ordered that the sum of $1,653.91 (one thousand six hundred fifty-three dollars and ninety-one cents) be and is hereby awarded to Kimberly Hoff and Swedish Covenant Hospital.

It is further ordered that the sum of $112.60 (one hundred twelve dollars and sixty cents) be and is hereby awarded to Kimberly Hoff and Michael J. Plunkett, M.D.


author: Roe, C.J. Patchett, J.

text:
    (No. 75-CC-0203
    James D. White, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 13, 1984.

      Order on petition for rehearing filed January 30, 1986.

    Joseph F. Cerveny and Jeffrey A. Rabin, for Claimant.
    Neil F. Hartigan, Attorney General (Kenneth D. Kombrink, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The Claimant, James D. White, seeks recovery for personal injuries he sustained as a result of a fall on an ice-covered sidewalk at Chicago State University.

On December 28, 1974, the Claimant was both a student at Chicago State University as well as a part-time laboratory assistant employed by the biology department of the University. It appears that at approximately 8:15 a.m. on December 28th, the Claimant exited from the east door of the “D” Building on the Chicago State campus and began to walk in a northerly direction when he fell on the sidewalk which was apparently covered with both ice and snow. That Claimant suffered rather severe injuries as a result of the fall is basically uncontested.

Claimant’s first contention, with which we agree, is that the Respondent, in its capacity as owner and operator of the University, owed a duty to the Claimant to exercise reasonable care for his safety. Recognizing that Claimant was both a student and a part-time employee of the University, it cannot be said that he enjoyed the status of less than an invitee. It is well established that an invitee imposes upon the owner of property the duty to use reasonable care and caution in keeping the premises reasonably safe for use by an invitee. The Illinois Supreme Court described the difference between the duty owed an invitee and the duty owed a licensee in Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 347, 97 N.E.2d 290, 293, as follows:

“The materiality of the question of whether plaintiff was an invitee or licensee arises from the fact that a heavier duty of care is placed upon an owner of premises toward an invitee than toward a licensee or trespasser. Toward an invitee the owner of premises must use reasonable care and caution in keeping the premises reasonably safe for use by such invitee; while toward a licensee no duty is owed by such owner, except not to wantonly and wilfully injure him.. . .”

Recognizing that the Claimant was an invitee on the campus and that the State therefore owed a duty to use reasonable care and caution in keeping the premises safe, the question confronting this Court is, given the facts, did the State breach that duty?

The Claimant contends that the Respondent did indeed breach its duty in at least the following particulars: (1) the sidewalk was constructed and maintained in a negligent manner so as to cause an unnatural accumulation of ice and (2) the Respondent negligently and carelessly cleaned the sidewalk of ice.

In Serage v. Board of Trustees (1973), 28 Ill. Ct. Cl. 368, 371, this Court stated:

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

The Claimant here presumably accepts the above proposition, but argues that due to the negligent design of the sidewalk, which resulted in a slope of approximately 12/2%, an unnatural accumulation of ice was created. (It should be noted here that the testimony of the campus engineering specialist indicated that the slope of the 12-foot-wide sidewalk was from an elevation of 15 feet at the west edge to 13 feet 6 inches at the east edge. In other words, within a space of 12 feet, the slope is 1M feet.) The importance of the degree of incline of sidewalks was analyzed by the Appellate Court of Illinois, First District, First Division, in McCann v. Bethesda Hospital (1980), 80 Ill. App. 3d 544, 400 N.E.2d 16. There, the Court found that the slope of the walkway was greater than 1% and that that presented a question of fact as to whether ice formed as a result of “unnatural” accumulation.

Further, the Claimant here alleges that the unnatural accumulation of ice was also a result of the negligent design of the area. Apparently, there were berms (grassy mounds) on the eastern edge of the sidewalk (the sidewalk sloped from west to east) and no adequate drainage where the downward slope of the berms met the slope of the sidewalk. Finally, Claimant argues that the condition of the sidewalk itself was maintained in a negligent manner in that there were depressions in the surface of the sidewalk at the place where Claimant fell (we find this testimony somewhat unclear) in which water would “puddle” and ice would thereafter accumulate. All of this, Claimant contends, caused an unnatural accumulation of ice where he fell.

The Respondent rebuts these contentions. First, it properly argues that in order for Claimant to successfully maintain that the sidewalk was designed in a careless or negligent manner he must prove that the walkway was not designed in conformity with standards in the industry at the time it was constructed. Claimant has presented no testimony to indicate that the design of the sidewalk and use of the natural sloping drainage were not in conformity with accepted standards in the industry at the time it was constructed. Mr. George Kennedy, an architect and engineer, testified as Claimant’s expert witness and it was his opinion that the “area” was so designed to allow water to accumulate adjacent to the mounds. Basically, however, Mr. Kennedy seemed to suggest that the unevenness of the construction of the sidewalk created ponds in which water could accumulate. We find that the Claimant has not met his burden of proving that the design and construction of the walkway was either negligent or careless.

Having come to that conclusion, it follows that any ice that may have formed on the walk was not due to an unnatural accumulation caused by the State, or more specifically, caused by the State’s design of the sidewalk.

In our opinion, Claimant’s contention that the State was negligent in failing to properly maintain the sidewalk, thereby allowing depressions to form in which water would accumulate, is a closer question. The State draws our attention to the fact that even Mr. Kennedy, Claimant’s expert, admitted that it was difficult to construct a perfectly level sidewalk and, even assuming it was possible, ice might still accumulate on it. It is also true that Mr. Kennedy’s analysis and inspection of the walk, in which he noticed the depressions about which he testified, took place in 1980 — some five years subsequent to the occurrence. Certainly, the walk might have been in a different state of repair in 1974.

Basically, the State contends that the walk was as level as any other sidewalk and offers two witnesses to that effect. Lonnie Jones, a University security officer, testified that on the date of the accident, he did not observe depressions in the sidewalk where the Claimant fell, nor did he on subsequent tours of the site. William Laseter testified that the “D” Building sidewalk was his responsibility, as groundsman at the University, and that he noticed no depressions in the sidewalk and that it was level.

On the other hand, Mr. Clifford Elam, the grounds foreman, testified that he knew of the “puddle” holes in the sidewalk.

We accept Mr. Kennedy’s opinion (it conforms to our own observations) that it is difficult to construct a perfectly level sidewalk and we suspect that the testimony of the various witnesses with respect to the depressions or holes in the walk is contradictory only in degree. What we believe to be likely is that, whereas the sidewalk was obviously not as smooth as a dance floor, it was also not dangerously defective.

In Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601,145 N.E.2d 105, the Illinois Supreme Court set forth in clear language the rule of law applicable to a situation where a person falls on a defective sidewalk. One of the basic questions in determining liability is whether the sidewalk irregularity is too slight to impose a duty on the city to remedy. The Court stated at 11 Ill. 2d 601, 604, 145 N.E.2d 105,106-07:

“While courts are in marked disagreements as to when the sidewalk irregularity or defect is so slight that the question is one of law, and where it is one of fact for the jury, nevertheless, the decisions recognize that no mathematical standard can be adopted in fixing the line of demarcation, and that each case must be determined upon its own particular facts and circumstances.”

Reviewing the record and considering the testimony, we find that the Claimant has not sustained his burden of proof that he fell on a sidewalk that was negligently in need of repair, thereby causing unnatural accumulations of ice.

In summary, our analysis of the transcripts, records and briefs leads us to the conclusion that the Claimant has not proven that the ice on the sidewalk where he slipped resulted from anything but natural conditions. This being our finding, the law is clear. As we stated above, we reiterate here by quoting Claimant’s brief:

“There is no liability for injuries resulting from a fall on ice and snow which has accumulated as a result of natural conditions. (Riccitelli v. Steinfeld (1953), 1 Ill. 2d 133, 115 N.E.2d 288.) Nor is there a duty to remove natural accumulations of snow and ice. Foster v. Cynus & Company (1971), 2 Ill. App. 3d 274, 276 N.E.2d 38.”

Claimant also contends, however, that the Respondent breached its duty by negligently and carelessly cleaning the ice from the sidewalk. Claimant properly argues that although Respondent has no “duty” to clear away natural accumulations of ice and snow, if it assumes the responsibility of snow removal, it must perform the task in a reasonable and diligent manner.

The State basically contends that in “salting” the area, it took “reasonable” steps in attempting to keep the area safe and thereby met its duty to Claimant.

The facts are apparently as follows:

During the early morning hours of December 28, the low temperature was 26°F and there was a trace of snow and ice pellets which had fallen on the ground and which continued to fall through the hour of 8:00 a.m. Upon arriving at work in the morning, Mr. Elam, the grounds foreman, noticed the snow and ice and instructed Mr. Laseter, the groundsman, to salt the area. Mr. Laseter spread four bags of salt, each weighing 80 lbs., around the “F” and “D” Buildings and the walks between them. This task was accomplished in approximately 20 minutes.

This is obviously not a situation in which the State did nothing; Claimant simply contends that their efforts were negligent or careless.

We disagree. Mr. Kennedy, Claimant’s expert, testified that the proper maintenance would have been to sweep up the snow and physically carry it away, after which the walks should have been salted and “sanded.” Although this may be true given sufficient time, opportunity and resources, we believe under the circumstances that the Respondent did all it could reasonably do. We can insist on nothing more.

The Respondent used the proper procedure in salting the walkways (Mr. George Connell, physical plant director at Western Illinois University, testified that the proper procedure when there are snow and ice conditions and the temperature is above 15° F is to apply salt to melt the ice) and they did so in a diligent manner, having completed the job prior to 8:00 a.m. We find their actions neither negligent nor careless.

We adhere to our underlying philosophy as enumerated in Serage, supra, at 371:

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

The Court regrets this unfortunate accident, but is of the opinion that this claim must be denied.

Based on the foregoing, it is hereby ordered that this claim be, and is, hereby denied.

ORDER ON PETITION FOR REHEARING

Patchett, J.

This cause comes for hearing upon the petition for rehearing filed herein by the Claimant, and the Court finding that the opinion in this matter was previously rendered denying the claim, and the Court having considered the petition for rehearing, and the response to the petition for rehearing filed herein, and the Court having carefully considered the record, and the evidence brought forth, and having considered the arguments in the petition and the response, and being fully advised in the premises,

It is ordered that the petition for rehearing be and hereby is denied.


author: Montana, C.J.

text:
    (No. 75-CC-1180
    Luedella Woods, Individually and as Administrator of the Estate of John L. Britton, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 27, 1985.

    Ronald L. Carpel, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

The Claimant herein, Luedella Woods, is the mother and duly appointed administrator of the estate of John L. Britton, Jr., deceased. Mr. Britton was incarcerated in the psychiatric division of Menard Penitentiary, a State of Illinois penal institution, at the time of his death. He was found hanging in his cell there at approximately 7:20 p.m., on September 15,1974. This claim has been brought to recover damages alleged to have been caused by the negligence of the State in the death of Mr. Britton.

The bulk of the evidence in this case was presented in a report compiled by the Department of Corrections concerning the circumstances surrounding the death. The facts, which do not appear to be in dispute, are summarized as follows.

John Britton was born in Brownsville, Tennessee, on May 9, 1945. He had several brothers and sisters, the exact number and names rather indefinite. His parents separated when he was around 14 years of age. Around 1961 he came to live with one of his brothers in Decatur, Illinois. Subsequently, his mother also moved there and was residing there at the time of the hearing in this claim. His father’s last known address was also in Decatur. He was single but claimed a common law arrangement that lasted about six months. He claimed a sixth grade education. He had frequent jobs as a laborer but was often unemployed.

Prior to the offense for which he was incarcerated at the time of his death, he apparently had several minor conflicts with the law. The report indicates that his F.B.I. file reflects several arrests for minor theft charges and one charge of criminal damage to property between July of 1964 and February of 1965. On February 26, 1965, he was arrested for petty theft and received a one-year sentence. He began his sentence at Stateville Penitentiary in Joliet, but also served parts in Pontiac and Vandalia. He was released in December of 1965. Three other minor offenses are reflected from March to September of 1966. He was arrested in January of 1967 on a charge of attempted murder arising out of an incident on October 10,1966. At a hearing he was found incompetent to stand trial and committed to the State of Illinois’ Department of Mental Health. A year later he was released to Kankakee State Hospital as being mentally incompetent. On June 29, 1967, he was found competent to stand trial and released to Macon County authorities. In September of 1967 he was tried and convicted of attempted murder and subsequently sentenced to eight to 20 years in prison.

Mr. Britton began his sentence at the Joliet diagnostic department but was soon transferred to Menard to serve his sentence with the general population. He was unable to adjust at Menard and in September of 1968 he was transferred to Stateville. In February of 1970 he was again transferred, this time back to Menard but in the psychiatric division where he remained until his death.

As for Mr. Britton’s life while incarcerated, the report depicts him as a severely disturbed, mentally ill, antisocial individual. It contained evaluations by several psychologists, psychiatrists, and sociologists, comments by his counselors, a nursing and medication summary, various staff observations, and a conduct report.

While serving his earlier sentence for petty theft at Vandalia, a sociologist named Alvin R. Frazier prepared a report which was summarized as follows:

“During the course of the interview subject was friendly, cooperative and readily gave answers commensurate with his ability. It is readily apparent, however, that he is unaware of the forces which combine to motivate his deviant behavior. He views the world as being hostile, aggressive and warlike, with all action taken as a means of ‘getting at him.’ He attempts to arrange his universe so that he is the center of it and has little concern for the rights or feelings of others. He attempted to cover up his feeling of rejection and insecurity by overt, aggressive, and abusive language and physical action. He feels that he must do this to prove himself to be a ‘real man and worthy of respect.’ He was in good contact as to time and space.
Although his mother has been on relief, he denied any period of extreme economic deprivation. He admits moderate to heavy use of alcoholic beverages which he seeks to use as a ‘scapegoat’ for his deviant behavior.
This 19-year-old inmate impresses this interviewer as being an inadequate, egocentric sociopath. He views himself as being the target of a very hostile and aggressive world with physical prowess the only means of recognition. He is extremely criminally oriented and prospects are poor for any immediate change in behavior. He will probably prove to be a constant disciplinary problem during his entire period of incarceration. He was involved in an attempted ‘jail break’ in Macon County and as a result of this, coupled with his emotional make up, is considered an extremely poor security risk. Without the benefit of psychometric testing, it is difficult to determine intellectual capacities; however, it is this interviewer’s impression that subject has borderline intelligence.”

Following his last arrest and prior to the competency hearing, a Doctor Groves B. Smith and a Dr. Baumann evaluated Mr. Britton. Dr. Smith’s report was said to contain the following:

“For his own welfare and for the protection of the community, and I have every feeling of sympathy and understanding about him and his responses, I do not feel that he can be cared for in a school for mentally retarded. I have worked with these children for most of my life, I would not want the responsibility for his care during the growing up process. He is a dangerous person. He responds to kindness, and he rebels against anything which he describes as an attempt to dominate and direct his behavior. He is a major security risk in any environment in which he is put. I feel this takes precedence over illiteracy and limited training, even though he presents a picture of mental retardation.”

Dr. Baumann was said to have administered several tests to him and provided the following evaluation:

“In summary, he is mentally deficient, his intelligence is so limited that he doesn’t know the difference between right and wrong, particularly when he is intoxicated. He is a dangerous person who is likely to act out again. It is our recommendation that he be placed in a mental institution or a hospital for the mentally defective where he can no longer act out his impulses. If he is not imprisoned or placed in a hospital for mental defectives, he may be expected to act out in a dangerous, hostile and aggressive manner again. This man is defective, as well as being hostile and dangerous. He should not have probation. He should be incarcerated so that he cannot inflict the damage on society.”

After Mr. Britton was found not competent to stand trial, another evaluation was performed, this time at the Illinois Security Hospital in Chester, Illinois. After several additional tests were conducted, the following report was said to have been made:

“The results of the psychological examination reveal that we are dealing with a patient who is on the threshold between a borderline mental defective and a mentally defective in his verbal ability. In conclusion: Results of the psychological examination reveal that we are dealing with a mentally defective young adult who certainly, at this time, is not able to stand trial in terms of mental ability, which may be depressed due to a sociopathic syndrome. The personality assessment revealed that we are dealing with a person who has extreme difficulties in interpersonal relations in his social arena, has a serious ego disturbance and has developed a mild sociopathic syndrome. The psychometric results strongly suggest that this patient should remain in his present status in this institution with continued psychiatric observation and treatment. It is felt that a psychological reevaluation should be administered after a few months of continued treatment. It is felt also that a more comprehensive evaluation could be made after this period of time in view of the present difficulty in differentiating between the variable of mental retardedness and blocking relative to problems and situations of an interpersonal nature.”

Following his sentencing on the attempted murder conviction, a Doctor Ciatteo, a psychiatrist at the Joliet diagnostic department, evaluated Mr. Britton for a special progress report. His diagnosis was, “emotionally unstable personality in a mentally defective individual. He is not mentally ill and not in need of mental treatment. He is not classified as a sexually dangerous person.” However, he did agree with the other examiners that he should be classified as a dangerous person, especially with respect to his hostile and aggressive behavior, if he felt he was being badgered or backed against the wall, or even more significantly, if he felt he was not being understood.

Just prior to his transfer from the Menard general population back to Stateville, Mr. Britton received the following evaluation from a psychologist named Meyer:

“Group 11(b): Mental retardation without continuing criminal propensities. Doubtfully improvable offender — emotionally unstable, passive-aggressive, passive-dependent type. Guarded prognosis . . . MAXIMUM SECURITY— related to his degree of emotional instability and his inability to handle frustration in a thoughtful manner.”

While back at Stateville, on May 26, 1969, an electroencephalogram was conducted and was interpreted to be within normal limits. Shortly thereafter a psychiatrist named Lorimer diagnosed Mr. Britton and it was reported that he provided the following analysis:

“The mental deficiency or mental retardation, more properly called, is felt to be possibly a combination of educational opportunity which was lacking as well as a hereditary factor . . . (Britton was) a primitive person who acts impulsively and often in an animalistic, dangerous manner in a social setting of a metropolitan community.”

On July 10, 1969, Mr. Britton reportedly sought isolation from the prison environment by requesting to cell alone. A Doctor Kruglik felt that he should be permitted to cell alone until situational pressures he was feeling moderated.

On December 30, 1969, while at Stateville, the report states Mr. Britton caused a disturbance in his cell area. Britton stated that the Lord was there and that he was going to the Lord. He asked for his black brothers to accept and help him. He said that he had never been accepted by his black brothers. He was placed in the detention hospital. He resisted and several officers were required to move him. Doctor Kruglik’s special progress report reflected the following comment: “Since being here, from early this morning, the inmate has been lying on the floor in the nude, refusing to eat or to shave and shower.”

Another report by Doctor Ciatteo, dated January 9, 1970, pointed out additional aggressive and belligerent behavior.

On January 16, 1970, Dr. Ciatteo reported that: “In the last few days, Britton refused to shave, became negativistic and grossly unmanageable.” He recommended transfer to the psychiatric division, Menard, Illinois.

On February 11, 1970, a Doctor Perez, psychiatrist, interviewed Britton and started medication. His comments contained the following:

“Conversation with the inmate reveals a type of thinking which is repetitive, verbigerative and inappropriate. Logic and judgment are rather poor. Emotionally he is inappropriate and has regressed to unreasonable degrees of hollering and talking loudly or repeating continuously that the Lord is his shepard [sic], and that he shall not want, etc.”

On September 20, 1972, efforts were made to reduce his medication, and all was discontinued except Stelazine, 2 mg., which was maintaitied for a background stabilizing factor. Going below this amount of medication might be even more unfavorable, it was said.

The parole board was interested in an updated report concerning Mr. Britton. Doctor Perez briefly summarized Mr. Britton’s situation and stated that he would discontinue all medication prior to the parole board appearance. He evaluated Mr. Britton as being in need of mental treatment: background of borderline intellectual and behavioral adaptation with a degree of regressive behavior which has been called immature, aggressive, and paranoid with prognosis highly doubtful.

On December 21, 1972, Dr. Perez reported the following concerning the discontinuance of his medication:

“Unfortunately, since that day the condition of the patient has progressively deteriorated. He downgrades nurses and attendants. He fears that people real and unreal are going to kill him. He talks loudly and without control throughout the night, disturbing the rest of the gallery population. For humanitarian reasons, I can no longer withhold medication from this patient.”

On April 12, 1973, Dr. Perez reported that: “Britton has become somewhat more deteriorated in his schizophrenic decompensation since his parole was denied around the end of February of the current year.”

On May 11,1973, he reported that: “Britton appears very uncomfortable from an emotional point of view. He is inappropriate, very irritable, flies off the handle and threatens the staff.”

A Max Givon, psychologist, in his progress notes of September 28,1973, reported:

“John Britton continues to exhibit symptoms of instability and hostility. He is intellectually and emotionally a rather limited individual, who does not have the capacity to cope with even simple routines. For example, he repeatedly requests to be taken to the ‘bullpen’ for exercise, but then turns around and curses and threatens the officer in charge of the gallery. He presents a very problematic case from a treatment point of view. Thus far, he has defied our attempts to produce significant changes in his behavior.”

On October 3, 1973, Dr. Perez prepared a report containing the following comments:

“Mr. Britton again was brought to my attention because he is creating disturbances in segregation every night for the past week. He has been segregated in the last cell of that unit. We should remember that when a schizophrenic of the degree of John Britton is isolated excessively, the only thing he has left is his world of fantasy and imagination.”

A report dated May 23, 1974, from Dr. Perez, contained the following comments:

“Mr. Britton has been an extremely challenging and difficult patient to handle. Basically, when his limited resources are taxed, he reacts in such irrational and persistently irritating manners that his handling becomes a complicated situation. I, as a psychiatrist, try to use any method in my •profession through which I can relieve his difficulties. I use medicine, efforts to explain his limitations, and attempts to bring to the patient a minimum of reassurance and human concern which is what all persons, disturbed or not, crave. Unfortunately, a prison is a difficult environment. It is not always easy to bring reward to a patient who spends the night screaming or who reacts to everyday occurrences with immaturities. There is a problem of protecting other patients, the issue of security, which overlap and put under stress the facilities of this institution.”

The psychiatric division review board met frequently to discuss Britton’s case. Efforts were made to return Britton to the general population several times. It was said he usually became involved in a major confrontation with other residents and staff or he requested to be returned to a single cell, isolation-type condition. In all cases, the review board felt that Britton should remain at the psychiatric division to complete his sentence.

A summary of the nursing and medication records appeared next in the Department of Corrections report. In general it appears Mr. Britton had few physical problems. It was reported that he was a well developed young man in excellent health. The medication prescribed for him was directed at his mental and emotional problems. He received his first medication consisting of Pralizin, Artane, and Mellaril in February of 1970, and continued to receive medication throughout his incarceration with the exception of certain very brief periods. The following excerpts relating to nursing and medication were taken from the Department of Corrections report.

In a report dated July of 1973, a counselor named Andres reported:

“He was taken off medication during November, 1972, in an effort to determine if he could function without it. On December 25, 1972, he was extremely delusional, believing that his life was in danger and fearing that his cell floor was going to collapse at any moment. Medication was reintroduced, and initially he stabilized quite quickly. Several days prior to his parole hearing, while on yard, he struck an officer for no apparent reason.”

The Department of Corrections report also contained the following comments:

“The nursing reports reflect that initially Britton was complaining about routine things such as rash he had last summer, upset stomach, minor chest pains and colds. On December 24, 1974, he started refusing to take medication prescribed. During the early part of 1973, Britton became restless and nervous. On June 7, 1973, a note reflects that the patient is getting worse every day about taking medication. The staff made three trips to his cell before he took it. He continued to be restless and nervous and started a fire in his cell on September 22,1973. From this point on, it became a confrontation between Britton and staff personnel concerning medication. He would demand medication from the staff and then he would refuse to take it. The records reflect that Britton was up at various hours walking and pacing in his cell. He was becoming even more restless, nervous and unable to sleep. He started spitting on staff personnel and threatened to kill John Robertson on July 21,1974, over his medication.
From July 21, 1974, to September 9, 1974, Britton was completely dependent upon medication to induce sleep. At times, he would request medication and then refuse to take it when staff personnel arrived. His condition was described as disturbed, restless, very disturbed, upset, cannot sleep and on September 9,1974, Sergeant Sherbert reported the patient had been awake and bumping into his cell gate for several hours.
His medical progress report reflects that his general physical condition was good. There were no diseases or injuries recorded except for a fractured right little finger during childhood and a stab wound in the left lower lumbar area received in a fight in 1963. It was discovered that he had a hearing problem and a hearing aid was provided. He received chest x-rays regularly and all were negative. It appeared at times that Britton may be improving by his cooperation with the staff. At other times, he displayed a high degree of hostility and aggressiveness. On June 24,1974, Britton was involved in a fight in the yard area. He was reported for swinging on an officer. The entry concerning medication on this date states that he takes oral medication and often pours it out. To reflect his changing moods, on August 22,1974, Britton was reported as being very cooperative. On August 26,1974, four days later, he assaulted his assigned counselor, Max Givon, by striking him several times about the face and knocked Officer Rader down causing injury to his head. Britton stated that we are trying to ‘take his Soul’, and refused to take oral medication. On September 5, 1974, an entry was made on his medical progress report that evaluates the effort. ‘Patient refused shot yesterday. I spoke with Dr. Perez — This patient has been so ill lately — nothing seems to be helping him. Doctor has temporarily discontinued all medication. Will continue to observe.’ ”

The Department of Corrections reports also contained observations from various staff members which were said to provide additional insight into some of Mr. Britton’s problems:

“It became obvious on December 8, 1965, that Britton had problems when he reported to Captain Handley that he was very nervous. Britton was observed shaking and trembling all over and perspiring heavily. On August 7, 1968, while at Menard, he attacked another resident from behind and struck him in the head with a cup. Action was initiated at that time to move Britton to a northern institution. Again, on August 7, 1968, he was removed from grade school for lack of interest and causing trouble in classes. Britton grabbed Officer McBride but released him. On August 15,1968, Britton was placed in segregation because of two fights. Britton’s explanation was because he disliked ‘White folks.’
On July 8, 1969, Britton reported to Lieutenant Leithliter at Stateville that he was very nervous and did not want to eat with anyone. He was escorted to Detention Hospital. On December 30, 1969, Britton caused a disturbance in his cell. He stated, ‘the Lord was there and that he was going to the Lord.’ He asked for his Black brothers to accept and help him. Britton refused to accompany Lieutenant Harrelson to the Detention Hospital and necessary force was used to move him. On January 5, 1970, Britton caused another disturbance by hollering repeatedly out of his cell that, ‘I am God, I am God, I have the Power’. A shot was ordered for Britton by Dr. Venckus and necessary force had to be used to administer the shot. Britton refused to take it. One Lieutenant was bitten under his left arm. From March 5 to April 8,1970, Britton made some positive adjustments.
Britton was limited in what he could do and accomplish. If assigned to a particular detail, it was for a short period of time. On August 6,1968, the School Principal at Menard stated that he had the wrong attitude and goals as far as school was concerned and felt that Britton would be better off on another assignment. He was considered as a food handler but was disqualified because of recurrent diarrhea. On December 28, 1967, he was returned to the school gang and assigned to the first grade level. This failed in a rather short period of time and Britton remained in Segregation for an extended period of time. The Assignment Committee reviewed his case regularly. On March 29,1974, he refused to return to his cell and cursed other patients and threatened them for not giving him coffee. On May 6,1974, the Assignment Committee released him from Segregation Unit. Britton requested that he be returned to Segregation on May 14, 1974, because he was unable to get along with others. On July 2, 1974, he was reported for fighting with another patient. On July 30, 1974, he was reported for numerous violations and abusing yard privileges. On August 27,1974, Britton was reported for spitting on an officer and a visitor in the Psychiatric Center. His assignments were very limited because of his frequent acts of misconduct and his inability to adjust.”

The Department of Corrections’ report on Mr. Britton’s conduct (other than the incidents recounted above) was rather general and in summary form. This format was apparently chosen due to the fact, as stated in the report, that he accumulated incident reports faster than they could be acted upon by the staff disciplinary committees.

Basically, it was reported that he became involved in confrontations on a daily basis with both residents and members of the staff. His actions, while confined, conformed in large part to the predictions of those who evaluated him. He was in constant trouble with loud talking, fighting and being at the wrong place without permission. He rebelled against institutional rules at every opportunity: smoking in class, refusing to work assigned jobs, roaming the galleries without permission, refusing to remove his cap at the barber shop, returning to his cell late, creating disturbances during sleeping hours, remaining in bed after he should have been up and at work, covering his cell lights with paper, and refusing to take his medication.

Several specific incidents during the last year of Britton’s life were documented and should be noted as they are particularly relevant to this claim. On September 22, 1973, approximately a year before he died, Britton started a fire in his cell. Less than a month later, he started another fire in his cell. On August 3, 1974, reports reflected that “He was so depressed he was banging his head into the bars and taking his fist and hitting himself in the face.” It was further said, “He . . . raised hell all night screaming and kicking his bunk ...” On August 21,1974, he threatened to kill an officer. Five days later he assaulted a man. On September 4,1974, he started another fire in his cell. On September 10, 1974, five days before his death, he made his last appearance before the merit staff for his acts of misconduct. He called the members “mother-fucking honkies” and stated that he would kill them all if he had a chance.

Because of his conduct record, Mr. Britton served a large portion of his time in the segregation unit. The report stated as follows:

“From December 12,1972, until his death in September, 1974, Britton’s activity with the general population was very limited. On December 23, 1972, he obtained general population status and was returned to segregation on December 25. He obtained general population status again on May 7, 1974; it lasted seven days, until May 14. Britton remained in the Segregation Unit from May 14,1974, until September, 1974. His case was reviewed by a committee of staff personnel monthly. He remained there under close supervision and control because of his aggressive and hostile acts of misconduct toward other patients and staff personnel.”

Mr. Britton was confined in the segregation section of the prison when he died. Illustrations and pictures of the cell and gallery were appended to the Department of Corrections report. There are 54 cells on the gallery and on September 15, 1974, only 18 residents were housed there, one per cell. No resident was out of his cell or in a position to observe the decedent at any time. All of the cells are fairly identical. Each is 11 feet deep, 4 feet, 7 inches wide and 9 feet, 2 inches high. After lockup at approximately 5:30 p.m., all cells were placed on deadlock and the keys were secured in a locker at the end of the gallery. Three cells, however, were different. They were apparently designed for individuals considered to be suicide risks. Their locks were disconnected from the master control lock and they cannot be placed on deadlock. These cells could be opened with keys at all times. Although it appears that at least one of these cells was unoccupied and available for use, Mr. Britton was not housed in one of these cells. The stated reason was that he was not considered by the staff to be suicidal. Mr. Britton was housed at the end of the gallery away from the entrance.

The immediate circumstances surrounding the death of Mr. Britton are summarized from the Department of Corrections report and the transcript of the coroner’s inquest which was offered by the Claimant.

The post-instruction for the 3:00 p.m. to 11:00 p.m. shift on the gallery in which Britton was housed provided for a gallery officer to make a round to check each resident every half hour. Due to extraordinary rowdiness of the residents on the night of Britton’s death, the shift commander, Lieutenant Sam Grecco, ordered rounds to be made at 15-minute intervals. At approximately 7:20 p.m., Officer Arnold Brueggman, while making his round, discovered Britton hanging by his belt from a light fixture above the commode in his cell.

Immediately upon finding Britton, Officer Brueggman ran the length of the gallery, approximately 100 yards, to get keys and assistance. The report suggests that yelling for help at that point would have been futile as the concrete and steel structure operated as a barrier to sound. He obtained assistance from Lieutenant Grecco and Officer Virgil Voges. Officer Voges obtained keys and went and opened the grill work to the master locking system. He turned the master lock to a point where the cell could be opened with a key. During this time, Lieutenant Grecco called for more assistance. The three then went directly to Britton’s cell, entered, and, with the two officers holding the body, Lieutenant Grecco cut him down. They removed the belt and a certified technician who was already on the scene gave emergency medical treatment, including oxygen, to no avail. Various other people then came and a Dr. James M. Whittenberg pronounced Britton dead around 8:15 p.m. shortly after his arrival.

The leading case in Illinois on the standard of care for the health and life owed an inmate is Desort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703, 342 N. E.2d 468. Therein it was held that “ordinary and reasonable care for the preservation of the prisoner’s health and life under the circumstances of the particular case” must be exercised. (Supra.) Whether or not defendants have failed to act in accordance with this standard is a question for the trier of fact. The other cases cited by the parties follow the rule in Desort and the decisions turned on distinguishable facts. The facts in this claim set forth hereinabove consist solely of the Department of Corrections report and the coroner’s inquest transcript and constitute the entire record on the issue of due care.

In the Claimant’s complaint eight separate breaches of duty were alleged, one or more of which were said to have proximately caused the Claimant’s decedent’s death. First, it was contended that the Respondent negligently failed to maintain proper supervision of Britton’s quarters. The record does not bear this out. The only evidence on this point was that on the night of Britton’s death, a jailer was ordered to make an observation round once every 15 minutes instead of the usual once every half hour. There is nothing to indicate this was not done. Other than constant or continuous supervision, it is nearly impossible to envision what more could have been done, and under the facts of this case, we do not think the Respondent can be held accountable for not having supervised any more than it did.

Second, it was alleged that the Respondent negligently permitted Britton to possess a belt when it was known or should have been known that he was mentally of an unstable nature or condition and possessed suicidal tendencies. There is nothing in the record to suggest that mentally unstable persons should not be allowed to have belts. No violation of a rule or regulation concerning possession of belts was alleged or known. Under the facts of this case, we do not think the Respondent knew or should have known that Britton was suicidal. Nothing in the record indicates that the Respondent knew Britton was suicidal. No expert testimony was elicited to show that the symptoms exhibited by Britton should have indicated to the Respondent that he was suicidal. Moreover, we are unable to conclude from the facts ourselves that the Respondent should have known Britton was suicidal. He had been incarcerated for many years off and on, having served approximately seven years in succession at the time of his death. During this time the record does not disclose any single incident or combination of incidents which we can find should have been sufficient to put the various prison officials and staff on notice that Britton was suicidal. There is nothing to indicate that during all this time he did not possess, or have access to, a belt, a shirt, pants, a sheet or other instruments with which he could have hung himself. Setting the contents of his cell on fire can be attributed to any number of motives. Hallucinations or rantings and ravings about a supreme being are similarly susceptible to many explanations. One incident involving banging his head on cell bars, and punching himself in the face was reported to have occurred a little more than five weeks before his death. However, the report indicates by far that most of Britton’s acts of hostility and belligerence were directed toward the prison staff and other inmates. Britton definitely had and caused many problems, but we do not think the record shows by the preponderance of the evidence that the Respondent did know or should have known he had suicidal tendencies.

The third allegation of breach of duty was that the Respondent negligently failed to institute emergency procedures within the psychiatric division of Menard Penitentiary to enable a prompt response to aid an injured inmate and the fourth alleged breach of duty was that the Respondent did in fact fail to promptly respond to the aid of the decedent once apprised of his condition. As for the third allegation, the record is silent as to what standard emergency procedure was used at the time of Britton’s death and no evidence of how it could have been improved was offered. We are persuaded that the staff at Menard did all it could to promptly react to the situation at hand. On this subject the record shows the following series of events occurred. At 7:20 p.m. Officer Brueggman observed Britton hanging from a light fixture in his cell. He immediately ran in excess of 277 feet to a point where he obtained the assistance of Lieutenant Grecco and Officer Voges. Officer Voges picked up keys from a key box located there and went over to a grilled gate that provided access to the master locking system. The door was opened and the lock handle rotated from deadlock position to key position to enable Britton’s cell to be unlocked by key. The three then opened Britton’s cell with the key and proceeded inside. Lieutenant Grecco climbed on top of the lavatory and cut him down while the other two officers held Britton up to keep him from falling. He was then placed on the floor of his cell. Testimony indicated four or five minutes lapsed between discovery of the hanging and the cutting down. They then removed the belt from around the neck. By that time, or almost immediately thereafter, an emergency medical technician was on the scene and tried to revive Britton with a manual resuscitator bag. No vital signs were present and resuscitation proved to be of no avail. A Dr. Whittenberg arrived at approximately 8:15 p.m. and pronounced Britton dead.

The fifth allegation of breach of duty was that the Respondent negligently confined Britton in defectively designed quarters which were constructed in such a way as to allow him to hang himself. We do not think the evidence shows the cell was defectively designed. On Britton’s cellblock there were two unoccupied “suicide cells” but he was not placed in one because he was not thought to have suicidal tendencies and, as previously stated, we do not think the Respondent negligent in not knowing he was suicidal. We think that his cell was adequately designed for the purpose intended. His death was the proximate result of his own intentional act and not the result of defectively designed quarters.

The sixth allegation of breach of duty was that the Respondent negligently provided improper and inadequate medical attention to the decedent prior to and/or after he hung himself. Claimant offered no expert testimony or any other evidence to prove this allegation. The same is true with respect to the seventh allegation of negligence, that the Respondent provided improper and inadequate psychiatric care and treatment during Britton’s incarceration prior to his death. These are essentially allegations of medical malpractice and as such must be proven by expert testimony. O’Donnell v. State (1980), 34 Ill. Ct. Cl. 12; Porter v. State (1965), 25 Ill. Ct. Cl. 62.

The last alleged negligent act or omission was that the Respondent maintained an improper and inadequate rehabilitative environment all during the confinement of the decedent and/or immediately prior to his death. The Respondent failed to object to this allegation. There is nothing in the record from which we can conclude that the rehabilitative environment was improper and, assuming arguendo that it was improper, there is no evidence that such was the proximate cause of Britton’s committing suicide.

In summary we find that the record shows that the Respondent exercised ordinary and reasonable care for the preservation of the inmate’s health and life under the circumstances of this case. In fact, it shows that a great deal of effort was made by the Respondent to treat Britton’s mental problems. While Britton’s death was unfortunate, we do not think it was foreseeable and the evidence is insufficient for us to make an award.

Claim denied.


author: Holderman, J.

text:
    (No. 76-CC-1185
    Iota F. Vaughn, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 14, 1985.

      Order on petition for rehearing filed August 1, 1985.

    Ruppert & Schlueter, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a tort claim arising from an accident occurring on January 8, 1975. Claimant was driving south on Interstate 57 north of West Frankfort, Illinois, near milepost 78.19 with her husband as a passenger. She was coming from Missouri to West Frankfort to attend a funeral. It was raining and Claimant alleges she was travelling at a speed of 30 to 35 miles per hour because of the wet pavement. There was other traffic on the road, including camper-trailers and pickup trucks, which were throwing water and mud back on Claimant’s windshield. She had been driving in the right hand lane and went over to the left hand lane to try to avoid the throwing back of water and mud from the other vehicles.

Claimant stated the trailer she was travelling behind appeared to swerve and she thought it was going to hit them so she went off the pavement on the inside after encountering a dip in the highway. When she went off the pavement, she lost control of her automobile and it proceeded to the right side of the highway and then into Rend Lake. Her testimony was that the embankment was very steep, at least two car lengths, there was no shoulder on the road, only mud, and there were no warning signs of either the dip in the road or the low shoulders.

Claimant and her husband were in the car in the lake for approximately two hours until they were rescued by the State Patrol.

Trooper Larry Dean Biggs was called by Claimant as one of her witnesses, as he was on the scene of the accident before she was rescued. He testified there had been other accidents at this location and that he had talked to the highway department about putting up some temporary protection where the road runs along the lake to keep people from running into the lake. He further testified that since the accident, a rest area had been established in this vicinity and the ditch Claimant encountered had been filled.

According to the medical testimony, Claimant sustained whiplash injuries to her neck for which she had been taking treatment for a considerable time and which was quite painful. The medical bill for these services was $5,615.00. She also alleges she has spent the sum of $250.00 for the care of her invalid husband for two weeks during the time she was unable to care for him while she was convalescing. She also incurred damages to her automobile in the amount of $127.00.

According to Claimant’s testimony and that of her doctors, she was still suffering pain and would continue to suffer pain for a considerable period of time.

The evidence in this case shows there were no warning signs and no fences between the road and Rend Lake. It appears from the evidence that the State had notice of this condition but had done little or nothing to safeguard the travelling public.

The Court is of the opinion an award of $15,000.00 should be made to Claimant to cover her expenses, and for the injuries she suffered and will continue to suffer for some time in the future.

Award is hereby made in favor of Claimant in the sum of $15,000.00.

ORDER ON PETITION FOR REHEARING

This matter was heard on oral argument after a petition for rehearing was filed by Respondent and objection to said petition was filed by Claimant.

The Court calls attention to the testimony of Larry Dean Biggs, a trooper with the Illinois State Police, Department of Law Enforcement, who said that in his opinion, there should have been a guard rail or some other safety factor to protect the public. His position is strengthened by the fact there has been a complete change made by the State since this accident to offer the public the right of protection. Among the changes made was a rest area put in, a ramp and guard rail all the way down until there is no more water, and the ditch has been filled. The action taken by Respondent supports the position taken by Claimant in this cause.

The Court calls attention to the fact that in regard to the degree of injuries suffered by Claimant, the State offered no medical evidence of any kind or character to rebut the claims of Claimant’s doctor that she had a whiplash injury that could possibly be permanent.

Claimant incurred the sum of $5,615.00 in fees from two chiropractic doctors for care and therapy, the sum of $250.00 for the care of her invalid husband for two weeks she was unable to care for him, damages to her automobile in the amount of $127.00, and requests $10,000.00 for permanent injuries.

Medical evidence shows Claimant’s injuries could be a permanent situation, as whiplash injuries sometimes do become a permanent feature of the injured party.

After reviewing the record, the Court is of the opinion that the original award is correct and therefore reaffirms its original decision in granting Claimant an award in the amount of $15,000.00.


author: Holderman, J. Holderman, J.

text:
    (Nos. 76-CC-2199, 76-CC-3194 cons.
    Delta Systems Corporation and May & Speh Data Center, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 11, 1985.

      Order filed January 8, 1986.

    John K. Kallman, for Claimants.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter arose out of contracts between Delta Systems and May & Speh Data Center and the State of Illinois for professional services in an effort to establish a computer programming system for the Industrial Commission of the State of Illinois.

The first contract was No. 741241 and was dated October 14,1974. This contract was not filed as required by section 15 of the State Comptroller Act (111. Rev. Stat. 1975, ch. 15, par. 215) and section 9.01 of The Illinois Purchasing Act (Ill. Rev. Stat. 1975, ch. 127, par. 132.9a).

The complaint in this matter was filed in 1976 and the docket sheet is 20 pages long.

In Count I of the complaint, Delta claims that the State, through contract M.I.D. No. 741241 with the Illinois Industrial Commission, owes Delta $146,081.00. To this count, the State objects on the grounds that the contract was not filed as required by the statute, and it was admitted by a representative of the Illinois Industrial Commission that he failed to file said contract.

During January 1975, the parties negotiated a second contract, M.I.D. No. 750221 which expressly superseded No. 741241. This contract was signed by both sides and was executed on February 11, 1975. It is the State’s contention that the subject matter of contracts Nos. 741241 and 750221 was the same, that the first contract was merged into the second contract, effectively setting forth the rights on the prior contract. See 95 Ill. App. 3d, 1044.

It is the State’s contention that Delta had the opportunity to provide the services but failed to protect itself on that matter, consequently waiving the opportunity to secure the money owed it and assuming the risk that it would be paid as it had been until that time.

In Count II, Delta claims it entered into a fourth contract with the State for $65,000.00 under contract No. 750901. Delta claims it has performed services on that contract in the amount of $49,370.00, has been paid a total of $20,370.00, leaving a balance claimed of $29,000.00 under this contract. Respondent states that Delta is not entitled to receive anything from the State because its contract No. 750901 was not completed and was not at all satisfactory.

In January 1975, the Department of Finance cancelled M.I.D. No. 741241 because Delta was slow in performing its duties and the State decided to cancel out of the Federal OS HA program. The Illinois Industrial Commission chairman directed that invoices for work performed under No. 741241 be submitted against No. 750221. Delta received payments out of funds allocated to No. 750221 for the $173,325.13 in work performed under No. 741241 and prior to the execution of No. 750221. When the IIC and the Department of Finance investigated the payment problems, the State decided to recapture the $173,325.13 it wrongfully had taken from No. 750221 by withholding that amount from Delta invoices submitted during May and June of 1975.

The original complaint in this case was filed by Delta Systems Corporation December 20, 1976, and the claim of May & Speh Data Center was later consolidated with this case. Pioneer Bank and Trust Company is an intervening Claimant.

On September 3, 1975, there was an addendum to contract No. 750221 requiring Delta to perform additional services and increasing the amount payable on that contract to $453,210.00. This addendum contract is noted as No. 750221A, making a total for the contracts $597,895.75, on which Delta has been paid to date the amount of $451,814.75, leaving a total balance of $146,081.00.

The State claims it has paid Delta $36,370.00 on contract No. 750901, leaving a balance of $13,000.00.

May & Speh were subcontractors of Delta under contract Nos. 750221 and 750221A and held a security interest in the amounts due Delta under those contracts. This security interest was perfected by filing a financial statement with the Secretary of State and claims $146,081.00 in connection with these contracts. May & Speh further claims $42,710.06 which the State paid to Delta in alleged violation of an agreement with May & Speh, in violation of the perfected security interest.

Pioneer Bank, the intervenor, is seeking $98,773.39 on a basis of a security interest and contracts Nos. 750901, 741241 and 750901A. A stipulation was filed between Delta, Pioneer Bank and May & Speh. This stipulation provided:

1. Delta acknowledged a debt to Pioneer for $98,773.39.

2. Delta owes May & Speh $115,881.81.

3. Pioneer Bank has a valid and enforceable security interest to secure payment of $98,773.39.

4. May & Speh has a valid claim for $115,888.81.

5. May & Speh’s claim is inferior to Pioneer’s claim.

6. Delta withdrew any defenses to the claims of Pioneer and May & Speh.

The State contends that the contract No. 741241 was not filed with the Comptroller pursuant to the State Comptroller Act and the Illinois Purchasing Act. It further contends that Delta’s performance was unsatisfactory. However, some payments were made and services performed herein. The contention of the State is that the State has paid Delta $36,370.00 under contract No. 750901 and the balance is $13,000.00 because the contract was not complete and was unsatisfactory. This defense*'of the State was refuted by evidence of the Claimants. There was no evidence by the State except that brought out by cross-examination.

The State further contends that it cancelled No. 741241 with sufficient notice. As to the claims of May & Speh, the State contends it had no contractual obligation to May & Speh and that it owes Delta nothing on Nos. 750221 and 750221A.

The State’s briefs are silent as to the claim of Pioneer Bank. There was also a claim by R. H. Factor as intervenor. In view of the fact this claim was not pursued and abandoned, the Court does not think it merits consideration. Delta claimed that Respondent failed to offer evidence in support of the affirmative defense, and the Court believes it has not.

The case has been prolonged in this Court from 1976 until the present time. There are approximately 900 pages of testimony and, as stated before, the docket sheet is 20 pages long.

There is considerable evidence in the record that the system installed was very deficient and exhibit 15 states that the case hearing system produces none of the Commission’s routine reports of case hearing activity and is incapable of generating the alphabetic reference listing of cases by applicant. This exhibit also states that the accident reporting system has been completely dormant since the Legislature cut the appropriation. Other items in the record show the system failed in many ways and did not accomplish the end for which it was purchased.

It is the opinion of this Court that Delta is entitled to an amount of $146,081.00 on Count I of the complaint, plus $13,000.00 under Count II, or a total of $159,081.00, less $50,000.00 for unsatisfactory performance, for a total of $109,081.00.

ORDER

Holderman, J.

This matter comes before the Court after oral argument was heard on September 23, 1985. There has also been filed in this cause a stipulation, dated September 14, 1981, by and between Pioneer Bank and Trust Company, formerly Pioneer Trust and Savings Bank, May & Speh Data Center, and Barry S. Grossman.

The Court, having reviewed the record and heard the arguments in this cause, is of the opinion that the Court’s opinion, dated July 11, 1985, is correct and reaffirms said opinion. Order of distribution is to be made according to said opinion.


author: Patchett, J. Patchett, J.

text:
    (No. 76-CC-2347
    James G. Kirchner, Administrator of the Estate of June E. Kirchner, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 8, 1986.

      Order on motion for rehearing filed May 15, 1986.

    Dunn, Brady, Goebel, Ulbrich, Morel & Jacob (John L. Morel, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This case involves an accident which occurred at approximately 8:30 a.m. on December 16, 1975, on Route 150 on the overpass over Interstate 74. Route 150 runs in a north and south direction. June Kirchner, the wife of James Kirchner and the mother of two minor children, was driving alone in a four-wheel drive Jeep in a southerly direction from her home in Carlock, Illinois, to Bloomington, Illinois. The Kirchner vehicle apparently flipped over, which resulted in trapping Mrs. Kirchner under the vehicle and causing her death by acute asphyxiation. There were no eyewitnesses to the accident.

It would appear that on the day of the accident, the highway on both sides of the overpass was dry and clear. It was a cold, windy day. Gordon McClure, a State employee, testified that on the day of the accident at approximately 7:00 a.m., he crossed the overpass in question, and that the overpass was frosty. He reported this condition to his superior, Mr. Hill. Mr. Hill informed two State employees to start treating the bridges in the area for icy conditions. McClure was also at the overpass on the day of the accident at approximately 9:30 a.m. The floor of the bridge was slippery at that time. Apparently, the State employees treated many bridges in the area with salt and sand, but did not treat the span in question before the accident occurred. Other witnesses testified to the slippery condition of the overpass. It is clear, therefore, that the bridge was slippery at the time the accident occurred. It is also clear that the State had notice of the slippery condition of this bridge, said notice having been furnished by Mr. McClure. There was also testimony from Mr. Cooper, a deputy coroner of McLean County, Illinois, as to the location of the vehicle after the accident.

An opinion was filed in this case on October 23, 1981. Subsequently, the Claimant filed a petition for rehearing. Oral argument on the petition for rehearing was held on November 5,1982. The Court has carefully considered the petition for rehearing filed on behalf of the Claimant, and the oral argument held before the Court of Claims.

We feel that the State of Illinois had actual notice in this case that the bridge in question was icy. The accident occurred approximately lM hours after the State obtained this knowledge. During that time, the bridge was not treated and, more importantly, no warnings were placed to warn of the dangerous condition of the bridge. It is also clear that there was sufficient evidence as to the deceased’s careful driving habits. This raised the presumption that the deceased was in exercise of due care at the time of the accident. (See Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 245, and Plank v. Holman (1970), 46 Ill. 2d 465, 470.) There is some difficulty in finding that the negligence of the Respondent was the proximate cause of the accident. However, we feel that careful examination of the record establishes by a preponderance of the evidence that the failure of the State to warn of the condition of the overpass, or to take any action at all to treat the overpass, was the proximate cause of the accident in question.

It is undeniable that the Claimant was damaged as a result of this accident, and that the damage was significant. Mrs. Kirchner was a 32-year-old mother of two and employed at the time of her death. It is uncontroverted that her life expectancy was 47 years at the time of her death, and her approximate annual income was $8,000.00. Further, we agree with the Claimant that there is a presumption of substantial pecuniary loss in favor of the lineal heirs in a case such as this.

Based on all of the aforementioned and giving close consideration to the cases of Kessler v. State (1974), 29 Ill. Ct. Cl. 422, and Bovey v. State (1955), 22 Ill. Ct. Cl. 95,101, we award the Claimant the sum of $100,000.00.

ORDER ON MOTION FOR REHEARING

Patchett, J.

This cause comes on for a decision upon the motion for hearing en banc and the motion to reconsider or, in the alternative, motion for rehearing or, in the alternative, motion for new trial, filed herein by the Respondent; and the Court having noted the motions and answer filed herein by the Claimant; and the Court having reconsidered this case in its entirety finds no reason to grant the motion for hearing en banc considering the fact that this opinion was concurred with by two other judges of the Court of Claims; and the Court further finds no reason to grant a rehearing or new trial or to reconsider the opinion in this case; the Court further finds that this case was filed in 1976, it was tried, it was taken to judgment and an opinion previously issued, and previously reconsidered in full, leading to the opinion filed January 1986,

Wherefore, the Court hereby denies the Respondent’s motion and orders that the Opinion filed in January 1986 shall be given full force and effect.