text:
    (No. 74-662
    Chicago Wire, Iron and Brass Works, Claimant, vs. State of Illinois, Department of Corrections and Dan Fogel, Respondents.

      Opinion filed April 4, 1977.

    Sudak, Grubman, Rosenthal & Feldman by Larry Karchmar, Attorney for Claimant.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, for Respondent.
   Polos, C. J.

This is an action to recover the sum of $1,494.00 which Claimant, Chicago Wire, Iron and Brass Works, Inc., alleges it is due on a contract for the manufacture of detention screens for the Illinois Department of Corrections.

Claimant is in the business of weaving steel and iron into finished iron products to be used for security purposes. It supplies security screening for various governmental agencies and private companies.

In August, 1972, the Vice President of Claimant, William J. Noelle, received a request from the Illinois Department of Corrections to supply and install security screens for its facilities at 2551 North Clark, Chicago. The facility, a community based correctional center, housed teenagers — some voluntarily and some as parolees.

Mr. Noelle visited the facility and met with the building engineer, Michael O’Sullivan, and Mr. Allen C. Brandt, Assistant Superintendent of the facility. The representatives of the Department of Corrections informed Mr. Noelle that the residents had been throwing objects out of the window, and the facility had received complaints from pedestrians on the sidewalk outside the building. Mr. Noelle testified that he was told that the Center needed devices that would prevent solid objects from being thrown out of the windows. Mr. Brandt testified that he specifically requested devices to prevent the throwing of all objects out the window, including liquids. Mr. Noelle said that he informed Mr. Brandt and Mr. O’Sullivan that he would install half-diamond, woven mesh screens on the windows, and that detailed specifications would be mailed to them. Mr. Noelle then measured the window openings designated for the security screens.

On February 16, 1973, Claimant sent a proposal to the Department of Corrections for the covering of the windows at the State facility from the second to the eighth floors. The proposal referred to the product as "detention screens” and contained the specifications for the screens as "one and one-half inch woven diamond number nine, one-half hard galv., three-eighths rod frame,” and further specified the type of locks and fastenings in detail.

Because of cost factors, Mr. Noelle was requested to resubmit a proposal covering only three floors of windows and to have the screens attached to the building from the inside rather than from the outside as had been previously proposed. On February 26, 1973, a second proposal was submitted using the same language for the specifications. The proposal was for $1,490.00 and was sent to Mr. O’Sullivan.

The proposal was routed through the State’s purchasing processes including the Office of Supervising Architect of the Department of General Services who executed an acceptance of the proposal. Mr. Noelle executed on behalf of the Claimant forms required by the State of Illinois, which contained among others, the following provisions:

(1) That time is of the essence of this acceptance and all work shall commence forthwith and shall be completed not later than April 15,1973 and
(3) That if the Contractor persistently fails to supply enough properly skilled workmen or material, or fails to replace unsuitable work or material or otherwise be guilty of a substantial violation of the provisions of this acceptance, then the State, upon the Certificate of the Office of Supervising Architect that sufficient cause exists to justify such action may, without prejudice to any other right or remedy, and after giving the contractor three days written notice, withhold all further payments, terminate the employment of the contractor and take possession of all materials, tools and appliances on the premises.

Claimant thereafter proceeded to manufacture the screens according to the specifications. On May 3, 1973, the screens were delivered to the facility and after some were installed, Mr. Brandt stopped the work and demanded the removal of the screens which were already installed. The sole reason given for this demand was one of appearance. According to Mr. Brandt, the screens which looked like chain link fencing gave the facility the appearance of a prison. The screens were however in conformity with the specifications. The objection of the State was that the product was sufficient but the style was not sufficient.

The screens were removed and were left at the facility where they are still stored.

Claimant sent to the Department of Corrections an invoice of $992.00 being the contracted amount of $1,490.00 less credits for unexpended labor and parts not used in the amount of $498.00.

The screens were custom made and specially sized for this job and had no value other than covering the measured window openings.

The Respondent contends that the Claimant is not entitled to recover on one or more of the following grounds:

(1) That there was an implied warranty of fitness for the purpose intended; that Respondent relied on Claimant’s expertise; and the implied warranty was breached in that the product was not useful for that type of facility.

(2) That time was of the essence of the contract and that Claimant failed to perform on time, which constituted a breach.

(3) That there was never a valid contract because there was never a mutuality of assent.

(4) That if there was a valid contract, Claimant’s damages were not proven with certainty.

As to the contention that there was an implied warranty of fitness for purpose intended, the Court agrees that where the seller of a product has reason to know the particular purpose for goods and buyer relies on the seller’s skill and judgment, there is an implied warranty of fitness for the specific purpose. Uniform Commercial Code, Ill.Rev.Stat., Ch. 26, §2-315.

However, this provision is not applicable here. In this case, there is no evidence that the Claimant was told anything about appearance. There is no evidence that the Claimant knew or was told the exact nature of the Center except that it was a correctional facility operated by the Department of Corrections. Claimant had no reason to know that Respondent would not appreciate the facility having windows looking "prison-like.”

The goods did, in fact, fit the intended purpose of preventing the throwing of objects out the windows. Even if one agrees with the testimony of the Respondent’s witness that the Claimant was informed that Respondent wanted the screens to prevent liquids from being thrown out the windows, it is apparant that no screen could fully meet that purpose.

In any event, Respondent had full opportunity to check the specifications. Although the Assistant Superintendent and Building Engineer testified that they did not understand the technical language in the proposal, the office of the Supervising Architect knew, or should have known, the meaning of the specifications. The proposal was clear in that it showed the mesh size as one and one-half inches, and even a layman could understand that there was one and one-half inches of space between the wire strands. Further, the screens were described as "detention screens.”

It is clear to the Court that Respondent understood, or should have understood, what was proposed and accepted the proposal as submitted. Therefore, the implied warranty of fitness for intended purpose was not breached.

The Court must likewise reject Respondent’s contention that there was a breach of contract by failing to perform in a timely manner. It is true that Claimant delivered the goods two and one-half weeks after the contract date. But no complaint was made by Respondent as to the delay. The refusal to accept was based on the appearance of the product, not the time of delivery. Further, the Respondent never sent a three-day notice to the Claimant as required by Paragraph 4 of the contract between them. It cannot avail itself of the time provision of the contract unless it complied with the termination provisions in the very same contract.

Respondent’s contention that there was no mutuality of assent is without merit. Respondent cites Globe Brewing Company vs. Simon, 132 Ill.App. 158, 202; Utley vs. Donaldson, 94 U.S. 29, 48; 24 L.Ed. 54; and Bank of Marion vs. Robert Fritz, Inc., 291 N.E.2d 836, 9 Ill.App.3d 102, 108. None of these cases have any applicability to the facts in this case. Respondent argues that the word "screens” had a different meaning to each of the parties. That may have been true, but the specifications in the proposal were not susceptible to more than one meaning. Certainly the office of the Supervising Architect of General Services understood those specifications. Certainly the Department of Corrections which operates the correctional institutions of the State of Illinois had on previous occasions purchased security screens or detention screens for its various institutions. The fact that Mr. Brandt or Mr. O’Sullivan did not personally understand the specifications does not excuse the Respondent who had access to all of the resources of the State government to ascertain the nature of the specifications. If a mistake was made, it was an unilateral mistake by Respondent. As expressed in New Amsterdam Import Co. vs. L & S Development & Transfer Co., (113 N.Y.S. 864):

Defendant’s unilateral mistake of fact was not such as could relieve it of its obligations under the contract since Plaintiff changed its position in reliance on the agreement.

As to Respondent’s contention that the damages were not proven, it is clear that the purchase price was $1,494.00. The State is entitled to credit for the unexpended labor and for material not delivered which testimony revealed to be $498.00.

This Court stated in George C. Petersen Co. vs. Illinois, 10 Ill.Ct.Cl. 673:

Where a contract is breached by a party in failing and refusing to accept goods contracted for, the proper measure of damages for such breach is the loss of profits suffered by the other party to the contract occasioned by such nonacceptance, less any expenses that would have been necessarily incurred by him in performing his part of the contract.

In this case the lost profit is the difference between the purchase price of $1,494.00 and the unexpended labor and material in the amount of $498.00. Respondent is not entitled to any credit for the product delivered inasmuch as it is worthless to the Claimant according to Claimant’s undisputed testimony.

It is therefore ordered that Claimant, Chicago Wire, Iron and Brass Works, is awarded the sum of Nine Hundred Ninety-Two Dollars ($992.00).


source: Caselaw Access Project

author: Perlin, C. J.

license: Public Domain

text:
    (No. 74-816
    Hazel Hamby, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 22, 1976.

    Miller and Pomper, by Edward Schatz, Attorney for Claimant.
    William J. Scott, Attorney General; Richard Grossman, Assistant Attorney General, for Respondent.
   Perlin, C. J.

This is an action to recover for personal injury sustained by Claimant on June 12, 1972, when she fell on a wet floor in the Secretary of State facility at 570 West 209th Street, Chicago Heights, Illinois.

Claimant was the sole witness to testify in these proceedings. She stated that it had been raining heavily "on and off’ on the day of the incident. At about 11:30 a.m., she walked into the Secretary of State office in Chicago Heights carrying a one year old child in her arms. She said that as she entered the building her feet slid out from under her and she fell to the floor. She testified that she examined the floor and that it was "really wet” just inside the door.

Claimant said that she injured her back and the lower part of her left leg in the fall. She was immediately taken to St. James Hospital for emergency treatment for which she was charged $69. Thereafter, she saw her family doctor three times for treatment of her injuries for which she was billed a total of $40. Claimant had no other out-of-pocket expenses as a result of the incident, and at the time of the hearing herein was suffering no ill effects from her fall.

It is axiomatic that the State is not an insurer of the safety of all who enter upon a premises maintained by the State. However, the State does owe a duty to members of the public to use reasonable care in maintaining its premises in a reasonably safe condition. See Kamin v. State, 21 Ill.Ct.Cl. 467; Divis, et al. v. State, 27 Ill.Ct.Cl. 135. Claimant therefore bears the burden of proving by a preponderance of the evidence that the State did not use reasonable care in maintaining the Secretary of State facility in Chicago Heights; that she was free of contributory negligence; and that the negligence of the State was a proximate cause of her injury.

The State argues that Claimant’s testimony as to the condition of the floor was uncorroborated. However, the State fails to explain why it made no effort to refute Claimant’s testimony by calling an employee of the Secretary of State’s office who could testify as to the facts of the occurence. The testimony is unrefuted that the rain was heavy, although intermittent, on the day of the incident. It appears that the State had sufficient notice of the raining condition and should have made some effort to keep the floor of the facility dry. In failing to do so, we think that the State failed to use that degree of care reasonable under the circumstances, and that the State’s negligence was a proximate cause of the Claimant’s injury.

Claimant testified that she walked into the Secretary of State’s office in a normal manner and slipped as she crossed the threshold. Claimant appears to have been acting with reasonable caution for her own safety, and we find that she has established her freedom from contributory negligence.

Claimant’s total medical bills arising from this incident were $109. She did not have any ill effects from the accident at the time of the hearing herein.

Claimant is hereby awarded the sum of Three Hundred Twenty-Five Dollars ($325.00).


author: Polos, C. J.

text:
    (No. 75-93
    Paul J. Vickroy, Roy Y. Tate and Champaign National Bank, as Trustee, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 23, 1977.

    J. C. Ermentrout, Attorney for Claimant.

      William J. Scott, Attorney General; William Webber, Assistant Attorney General, for Respondent.
   Polos, C. J.

This is an action by Paul J. Vickroy, a tenant farmer, to recover for damages to growing crops resulting from the interference by Respondent of surface drainage on certain land.

The complaint herein alleges that Respondent acquired by threat of condemnation a right-of-way for an interstate public highway which ran across the east side of certain land farmed by Vickroy. The drainage on the land was on an eastward direction, and in constructing the highway, Respondent interfered with the normal flow of drainage across the land and did not provide for adequate sewers to permit the water to flow under the highway.

The complaint further alleged that the State acted in a negligent and careless manner in interfering with the normal flow of drainage across the property, and that as a result thereof, 23.5 acres of crops were flooded and destroyed in 1973, and that Claimant Vickroy was damaged by reason thereof in the amount of $4,081.42.

At the hearing herein, Respondent stipulated to each and every allegation of the complaint, excepting only Claimant’s allegation of the amount of damage sustained. The parties then stipulated to a reduced damage claim in the amount of $3,007.22.

On consideration of the complaint herein, the allegations of which are admitted by Respondent, and the stipulation as to damages, it is hereby ordered that Claimant be, and hereby is, awarded the sum of Three Thousand Seven and 22/100 Dollars ($3,007.22).


author: Spivack, J.

text:
    (No. 74-857
    Graybar Electric Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 25, 1977.

   Spivack, J.

Claimant seeks recovery from the State in the sum of One Thousand One Hundred Thirty-Four Dollars ($1,134.00) on account of one roll of electrical wire furnished on an emergency basis to the Illinois State Penitentiary at Vienna. Respondent defends upon the ground that the wire in question was a replacement for a defective roll previously paid for and returned. The return of the defective roll to Claimant is the only issue of fact, the determination of which is dispositive of the case at bar.

The matter was assigned to Commissioner Rath who conducted a hearing on June 27, 1975. Thereafter, the transcript of the evidence together with the Commissioner’s Report was duly filed with this Court.

The evidence adduced showed that Claimant had informed the State Penitentiary that upon receipt of the defective ‘reel of wire, full credit would be issued. Claimant’s records failed to disclose actual receipt of the wire and also failed to disclose any refusal by the State to return the defective wire.

Respondent’s witnesses testified that arrangements were made to replace the damaged wire through Claimant’s suppliers in St. Louis, Missouri. An employee of the Vienna Correctional Center was designated to drive an institutional vehicle to St. Louis, delivering the defective wire, and in return picking up the replacement wire. The evidence showed that the damaged wire was loaded onto the institutional truck by the employees at Vienna Correctional Center. The employee left with the damaged wire and returned the same day with a comparable roll of new wire of the same classification, size and configuration. The State employee who drove the damaged wire to St. Louis to pick up the new wire testified that he drove the wire to the premises of Claimant’s supplier in St. Louis, unloaded the defective wire, and loaded a comparable spool of new wire which he then returned to the Correctional Center. The rolls of wire were of such a size that only one roll could be placed in the pick-up truck at a time.

The testimony of Respondent’s employee to the effect that the damaged wire was returned to Claimant’s supplier in St. Louis stands unrefuted and uncontradicted. The burden of proof falls upon the Claimant to prove by preponderance of the evidence the material allegations which constitute the claim. In the present case Claimants have failed to sustain their burden of proof; in fact, it might be observed that the preponderance of the evidence demonstrates that the damaged roll of wire was in fact returned to Claimant’s supplier in St. Louis at the time that the new wire was picked up.

There are no questions of law to be determined in this case, and the sole question of fact going to the issues having been decided adversely to the Claimant. The claim is hereby denied.


author: Burks, J.

text:
    (No. 74-890
    Leo S. Dugosh and Therese Dugosh, Claimants, vs. State of Illinois, Respondent.

      Opinion filed August 13, 1976.

    John C. Hedrich and Kent A. Rathbun, Attorneys for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Burks, J.

This is a claim for crop loss resulting from the negligent failure of the State of Illinois to maintain two drainage tubes lying under the Illinois Mississippi Canal.

In 1894 the United States of America had condemned certain farm land in Bureau County for the construction of the Illinois Mississippi Canal. The canal was 80 feet wide at the water line and 7 feet deep.

The pertinent part of the condemnation petition filed in the U. S. District Court for the Northern District of Illinois alleged:

That the United States will properly connect the tile drains now laid in said lands wherever the same are cut by said canal, carry the same under said canal and give the same a proper outlet on the south side thereof; so that after the completion of said canal, said lands will be as thoroughly drained as they are at the present time.

Claimants’ land, then owned by a predecessor in title, was part of the land condemned. The natural drainage of the land was south towards the canal by means of a natural drainage ditch which drained approximately two square miles of farm land, the water ultimately flowing into a creek known as Bureau Creek. The canal blocked this drainage. To correct this so that Claimants’ land would continue to drain properly, the United States laid two 48 inch drainage tubes under the canal at a point where the natural drainage ditch would empty into the tubes thereby carrying the surface water under the canal. The United States obtained an easement from the property owner on the south side of the canal to construct a ditch carrying this water from the mouth of the tubes on the south side of the canal south into Bureau Creek. In addition, the United States laid 1900 feet of 10 inch tile along the north side of the canal to drain into the two tubes.

The property specifically involved in this claim is a 21 acre field bought by Claimants in 1966 and bordering on the north bank of the canal. In 1967 Claimants notified the Department of the Army Corps of Engineers that the tubes and the ditch south of the canal were plugged, and the Corps of Engineers did the necessary remedial work to restore the drainage.

In 1970 the State of Illinois took title to the canal from the United States government.

In early 1972, the two culverts under the canal again began to fill. Thereafter, from 1972 forward, Claimants made repeated requests to the State of Illinois to clean out the tubes under the canal, the drainage ditch running from the south side of the canal to Bureau Creek, and the 1900 feet of tile running along the north side of the canal. The State failed to take any corrective action.

In July of 1972 the District Land Manager for the Illinois Department of Conservation wrote to Claimants as follows:

Dear Mr. Dugosh:
The Ranger at the Hennepin Canal Parkway looked into your problem and found that the ditch does need cleaning.
At this time the Canal does not have the proper equipment to clean ditches, but we do expect to purchase equipment in the near future and will put your request at the top of our priority list when we receive our equipment.
Thank you for your patience.

In 1973 and 1974 approximately 9.9 acres of land were under water and unavailable for planting. The evidence is that, in 1973, 9.9 acres of beans at 30 bushels to an acre were lost. The average price was $6.00 per bushel, or a total loss of $1,782.00. The cost of raising the beans would have been $38.00 per acre of $376.20 for a net loss of $1,405.80. In 1974 9.9 acres of hay at 100 bales to an acre were lost. The average price per bale was $2.00, or a total of $1,980.00. The cost of raising the hay would have been $0.35 per bale or $346.50 for a net loss of $1,633.50. Claimants’ total net loss for both years was $3,039.30.

This Court is frequently called upon to resolve cases where a public improvement has altered the natural flow of surface waters resulting in flood damage to adjacent property. A typical example is a highway built upon a fill, disrupting the flow of water from one side of the highway to the other.

The Illinois Mississippi Canal, when built, was in effect a public highway for the transportation of barge traffic from Hennepin to the Mississippi River. Its construction disrupted the natural drainage in the area concerned. The United States government however, by constructing the drainage facilities previously described, restored the drainage to its former condition and, according to the record, maintained these facilities as recently as 1967. The Respondent, State of Illinois, present owner of the canal, apparently refuses to keep these drainage structures in repair, taking the position that it has no legal obligation to do so, and that Claimants are free to go upon the State’s right-of-way and make the repairs themselves.

The Court does not agree with the State’s position. To our knowledge there are no decisions of this or any other court directing citizens (who own property adjacent to a public improvements) to go upon the State’s right-of-way and privately maintain drainage facilities found on the public improvement. For reasons of safety, both public and private, if for no other reasons, private citizens should not enter upon the State’s right-of-ways and attempt to perform maintenance functions.

By its letter to Claimants in July of 1972, the State acknowledged its responsibility to maintain the drainage installations but stated that at that moment it had no equipment to do the job. Tools needed would have been an auger to clean' the tubes running under the canal and a back hoe to clean the south drainage ditch. Claimants could not be expected to own or to rent such items.

Respondent relies on Savoie v. Town of Bourbonnais, et al., 339 Ill.App. 551, an action against the Town of Bourbonnais, the County of Kankakee, and others for damages and a mandatory injunction to compel defendents to repair and maintain a drainage ditch which for more than 40 years had diverted waters from flooding plaintiffs land. The Circuit Court of Kankaee County dismissed the complaint, and the Appellate Court of Illinois Second District affirmed. However, the cited case is not on point. The plaintiff in Savoie was seeking to establish an easement by prescription in a water course on the grounds that it had existed for more than 20 years. The Appellate Court held that, under the facts of the case, prescriptive rights could not be established against the municipality; and that even if they could, the municipality’s only obligation to plaintiff and to others who had benefited from the drainage ditch was not to restore the original water course. This has no application to the instant case which involves the disruption of the natural flow of surface water by the construction of a public improvement.

Respondent further relies on the Illinois Drainage Code. That Act, pertaining to the creation and taxation of drainage districts, has no apparent application to the case at bar.

Claimants have proved damages in the amount of $3,039.30 arising from the State’s negligent maintenance of its drainage facilities under and bordering the Illinois Mississippi Canal adjacent to Claimants’ property.

Claimants are hereby awarded damages in the sum of Three Thousand Thirty-Nine and 30/100 Dollars ($3,039.30).


author: Per Curiam.

text:
    (No. 75-12
    Pulley Freight Lines, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 14, 1977.

    Shurl Rosmarin, Attorney for Claimant.
    William J. Scott, Attorney General; James O. Stola, Assistant Attorney General, for Respondent.
   Per Curiam.

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

This Court finds that this claim is for overpayment by Claimant of vehicle proration fees.

An investigation by the Secretary of State determined that an overpayment of Vehicle Proration fees was made by Claimant for the year 1970. After a pretrial conference, the parties entered into a joint stipulation in the amount of $13,200.00 as a fair and just settlement of this claim in view of all the documents in their possession.

It is hereby ordered that the sum of Thirteen Thousand Two Hundred Dollars ($13,200.00) be awarded to Claimant, Pulley Freight Lines, Inc., in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 75-223
    James H. Blake, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 16, 1976.

    William A. Bean, Attorney for Claimant.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, for Respondent.
   Per Curiam.

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

This Court finds that this claim is for damages sustained by the Claimant to his motor vehicle when said vehicle was damaged by escapees from the Illinois Youth Center, St. Charles, Illinois, pursuant to Ill.Rev.Stat., Ch. 23, §4041. The vehicle in question was totally damaged by student Charles Day on May 31, 1974. Damages to Claimant’s vehicle have been estimated at $200.00 as substantiated by exhibits attached to Claimant’s complaint.

It is hereby ordered that the sum of Two Hundred Dollars ($200.00) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


author: Holderman, J.

text:
    (No. 75-234
    Ellard Lee Douglas and Judith Grace Douglas, Claimants, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed April 13, 1977.

    Donald C. Rikli, Attorney for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimants filed suit against the Respondent claiming a breach of contract relative to the sale of certain land by Claimants to Respondent.

During the year 1971, Claimants were the owners of a house located upon land in East St. Louis, Illinois. During the fall of 1971, persons representing the Department of Conservation of the State of Illinois, including one Roger H. Hazlett, visited the Claimants at their home and negotiated with them for the purpose of purchasing their home and land for the Horseshoe Lake State Park project.

The Claimants both state that Mr. Hazlett told them they would receive the purchase money for their home and land from four to six weeks after they executed their deed. Mr. Hazlett denies making such a statement.

On October 14, 1971, Claimants executed their warranty deed to their home and land, delivered the same to Mr. Hazlett, and received a receipt for this warranty deed dated October 14, 1971, and signed by Mr. Hazlett. This receipt stated that the agreed-upon consideration for the warranty deed, which was $30,000.00, had not been paid but would be paid to the Claimants "in approximately 90 days after execution of the deed . . . .”

Claimants searched for another home, and on October 23, 1971, entered into a contract to purchase another home. Under the terms of this contract, the closing was to be held on or before January 1, 1972.

The purchase money for the Claimants’ original house was not paid to them until April 21, 1972, which was 190 days from the date of the execution and delivery of the warranty deed to their original home.

As a result of the delay of the Department of Conservation of the State of Illinois to pay Claimants for their original home Claimants were unable to raise enough money from other sources to complete the purchase of their new home. During the period between October, 1971 to April, 1972, Claimant was out of work.

On February 23, 1972, the sellers under the contract for the new home sued the Claimants for damages for breach of contract. Claimants employed attorneys to defend them, and the case was settled out of court for $1,049.25, plus loss of down payment under the contract of $100.00.

Claimants allege that as a result of the failure of the Department of Conservation of the State of Illinois to pay to the Claimants the purchase price on the Claimants’ original home ($30,000.00) within the 4 to 6 weeks after delivery of the warranty deed as stated by both of the Claimants or within the 90 days as represented by the Respondent, the Claimants suffered the following damages:

Payment to George F. Becker and M. Jane Becker in settlement of Case No. 72-E-44 in the Circuit Court of Madison County, Illinois......................................... $1,049.25
Roberts, Sheppard, McRoberts & Wimmer, attorneys’ fees .. 350.00
Nick D. Vasileff, attorney’s fee........................... 25.00
Down payment on contract to purchase new home......... 100.00
Total............................................... $1,524.25

As a result of the foregoing, the Claimants have employed an attorney to represent them in this proceeding, and the agreed upon fee is one-third of the sum recovered, or $508.08.

If the payment to Claimants had been made in accordance with the written receipt given by Roger H. Hazlett, they would have received the money on January 4, 1972, approximately six weeks before the suit was filed by the owners of the new home Claimants intended to purchase.

It is the opinion of this Court that the Claimants sustained their loss as a result of the failure of the Respondent to make payment at the time agreed upon.

Damages recoverable in a case such as this should be those which arise as the fair, legal and natural result of the breach. Howell vs. Moores, 127 Ill. 67, 19 N.E. 863.

Award is hereby made for damages in the amount of Two Thousand Thirty-Two and 33/100 Dollars ($2,032.33).


text:
    (No. 75-243
    Martha Brazley, Adminstratrix of the Estate of Maydis Montgomery, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1977.

    Seibert & Daniels, Attorneys for Claimant.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, for Respondent.
   Per Curiam.

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

This Court finds that this claim seeks the sum of $1,553.25 representing the burial expenses incurred as a result of the death of Maydis Montgomery, a patient of the Department of Mental Health, Elgin State Hospital on January 1, 1974.

On the evening of January 1, 1974, decedent together with other patients was taken by an employee of the hospital to dinner which required the patients to be taken outdoors from the building in which they were housed to a dining room about one-half block away.

At the time the decedent was taken to dinner there were four persons scheduled to be on duty, however two of these individuals had called in ill and did not report to work. Since department rules required at least one person to remain on a ward at all times, there was only one person available to escort some 45 patients to and from the dining room for dinner.

As a result of the foregoing conditions, Claimant’s decedent was allowed to wander away from the group, off the grounds of the hospital, onto the highway. The facts disclose that she then stepped into the path of a moving automobile and was instantly killed.

Although Elgin State Hospital is not a custodial institution and therefore does not have a "closed gate” security system, there remains the fact that Respondent was aware of decedent’s known tendency to wander away from groups traveling to and from meals. She had previously been found walking on the streets around the grounds of the institution.

The Department of Mental Health decided that it would be in the best interest of the State of Illinois that this claim be adjusted, and that the Claimant be reimbursed for the reasonable burial expenses which she incurred in providing the decedent with a proper burial.

Pursuant to the Department’s request for an adjustment, a stipulation was prepared and sent to the Court, whereby it appears that all matters in controversy between Claimant and the State of Illinois have been adjusted to the mutual satisfaction of the parties and their attorneys and that the expenses incurred are just and reasonable.

Claimant is hereby awarded the sum of One Thousand Five Hundred Fifty-Three and 25/100 Dollars ($1,553.25).


text:
    (No. 75-371
    Wilson Electric Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 27, 1976.

    Wilson Electric Company, Pro se.
    William J. Scott, Attorney General; Jerry Felsenthal, Assistant Attorney General, for Respondent.
   Polos, C. J.

This is an action to recover the sum of $456.00 for sound system maintenance work at the Dixon State School. Respondent admits that the work was satisfactorily performed by Claimant but contends that Claimant was never properly authorized to do the. work in question.

In early 1973, Claimant, acting as a subcontractor, installed a sound system at Dixon State School at Dixon, Illinois. The sound system was covered by a one-year warranty against equipment malfunction.

On July 10, 1973, Warren Kalies, the Secretary-Treasurer of Wilson Electric Company, had a telephone conversation with one Bob Hollenback, an Electrical Inspector for the Department of General Services of the State of Illinois. Kalies testified that Hollenback advised him that Dixon State School was experiencing difficulty with its sound system and asked Claimant to service it.

Harold Nelson and Richard Pierson, both employees of Claimant, were dispatched to the Dixon State School. Nelson testified that upon their arrival they reported to one Earl Sitter, the Chief Engineer at the School. Nelson said that Sitter told him and Pierson to contact Ray Rogers, a School electrician, who would tell them what needed to be corrected in the system.

Nelson and Pierson were taken through the School by Rogers. Nelson said that in addition to adjustments covered under Claimant’s warranty, Rogers requested that they adjust the sound levels on 48 amplifiers and that they repair certain broken controls and electrical lines that had been damaged by inmates. In addition to the work covered under the warranty, Nelson and Pier-son performed the added work that Rogers requested. Respondent was billed $456 for the non-warranty work.

Earl Sitter, testifying for Respondent, said that he had not authorized Claimant to perform the non-warranty work. He admitted on cross-examination however, that he had told Harold Nelson to contact Ray Rogers in order to learn what work he was to do on the sound system.

The sole issue to be determined is whether Respondent authorized Claimant to perform work on the Dixon State School sound system not covered under the warranty. It is clear that Claimant adjusted the sound level on 48 amplifiers at the School and replaced controls and electrical lines which had been damaged by inmates, and that these services were not covered under Claimant’s warranty. It is also clear that Earl Sitter, the Chief Engineer at Dixon, told Claimant’s employees that Ray Rogers would show them the work to be done on the sound system and that Rogers asked Claimant’s employees to perform the non-warranty work.

We think that the State thus vested Ray Rogers with apparent authority to order the non-warranty work on the sound system and that Claimant reasonably relied upon his apparent authority to bind the State in performing the work. Claimant’s employees did only the work requested by Rogers, and in these circumstances the State cannot now complain that Rogers did not have actual authority to bind the State.

Claimant is therefore awarded the sum of Four Hundred Fifty-Six Dollars ($456.00).


text:
    (No. 75-550
    Irving Weissman, M.D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1977.

   Spivack, J.

This matter is now before the Court on Respondent’s Motion to Dismiss and Claimant’s Answer thereto; the parties have each filed briefs and arguments in support of their respective positions; the pleadings, briefs and applicable statutes and regulations have been carefully examined by the Court. In order to properly understand our adjudication of the novel situation herein presented, it is necessary to recapitulate the applicable facts: Claimant, a physician, was a participant in the Medical Assistance Program of the Illinois Department of Public Aid and rendered services to recipients during the year 1969 in the amount of $24,820.10. On March 22, 1971, the Director of the Department of Public Aid informed Claimant: (i) that he was being removed from further participation in the program (for reasons not here relevant), and (ii) that all unpaid bills that had theretofore been submitted would be paid in accordance with Departmental policy and standards. In early 1974 Claimant first submitted the 1969 bills for payment which were, on April 11, 1974, denied in writing by the Department for the given reason that Federal regulations preclude expenditures of any Medicaid funds for any bill submitted more than 24 months following the date service was provided. Thereupon, on November 25, 1974, Claimant filed the instant cause.

Respondent argues that §22(b), Court of Claims Act, required this Claimant to file his action within one year following "the accrual of the cause of action,” as provided in Ill.Rev.Stat., Ch. 23, §11-13. The statutory language is clear and concise, and we agree with the Respondent in this regard. Respondent next contends that the cause of action "accrued” on March 22, 1971, the date as of which the Department informed Claimant that it would honor his unpaid bills submitted as of that date. We are not convinced by Respondent’s argument. The letter of March 22, 1971, addresses itself to the issue of unpaid bills already submitted, payment of which had been withheld pending the outcome of the administrative proceedings. The question of outstanding bills for a period during which Claimant was a participant in the program, but which had not been submitted, was never an issue in the proceedings and was not inferentially disposed in said letter.

Claimant argues that the "cause of action accrued” on April 11, 1974, the date of the Department’s denial of the 1969 bills which had been submitted early in 1974. For support, he cites Ill.Ann.Stat., Ch. 23, §11-13 as amended, effective January 1, 1973. The section states:

A cause of action does not accrue within the meaning of this paragraph for as long as there is an unrevoked acknowledgment in writing by a governmental unit or the Illinois Department that it accepts the liability, in whole or in part, for a vendor claim submitted to it or, if the vendor claim or any part thereof is not so acknowledged, until the vendor has been notified in writing that the claim or part thereof is disallowed or disapproved.

Although superficially it may seem that the quoted section supports Claimant’s position, a closer examination indicates that the section is silent in respect of a precise situation as is here presented. Namely, where no departmental denial of liability is possible because no claim has been presented. We doubt that the Claimant seriously contends that the cause never accrues if Claimant never makes a claim.

We must therefore look further to determine the legislative intent with regard to when the cause of action does accrue as related to the date upon which the services were rendered.

The penultimate paragraph provides the key:

This paragraph governs only vendor payments as defined in this Code and as limited by regulations of the Illinois Department.

Neither counsel for Claimant nor for Respondent has made reference to the Regulations of the Department of Public Aid which became the key to the establishment of the date upon which the cause accrues relative to the date of services rendered. The Court however takes notice of the Regulation entitled "State of Illinois, Department of Public Aid, Medical Assistance Program, Handbook for Physicians.” Section 141, Submittal of Charges, provides as follows and is dispositive of the issue:

Charges are to be billed as soon as possible after the first of the month following the month in which services were provided; but not later than six months subsequent to date of service. Only those claims which are received by the Department with a date of service within six months prior to the date received will be considered for payment.

Thus in the instant case the cause of action could not have accrued later than six months following the respective date of services and Claimant was bound to have filed this cause by no later than June 30, 1970. This he failed to do.

For the foregoing reasons, Respondent’s Motion to Dismiss is granted and the cause dismissed.


text:
    (No. 75-461
    Mary H. (Abel) Pierce, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 16, 1976.

    Mary H. (Abel) Pierce, Pro se.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, for Respondent.
   Per Curiam.

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

This Court finds that this claim is for damages sustained by the Claimant to her motor vehicle when said vehicle was stolen by escapees from the Illinois Youth Center, St. Charles, Illinois, pursuant to Ill.Rev.Stat., Ch. 23, §4041. The vehicle in question was stolen by students Lowell Wilkins and Raymond Green on July 4, 1974. Damages to Claimant’s vehicle have been estimated at $118.50, as substantiated by exhibits attached to Claimant’s complaint.

It is hereby ordered that the sum of One Hundred Eighteen Dollars and 50/100 ($118.50) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 75-578
    Gloria Briggs, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1976.

    Gloria Briggs, Pro se.
    William J. Scott, Attorney General; Richard Grossman, Assistant Attorney General, for Respondent.
   Holderman, J.

This is a claim for damages for the theft of an automobile by an inmate escaped from the Illinois Youth Center, St. Charles, Illinois.

On October 5, 1974, Claimant was the owner of a 1966 Ford Galaxie XL automobile. This car was parked on the premises of the Marion Park Housing Complex in the County of DuPage, State of Illinois, in front of the family’s townhouse at 2120 West Roosevelt Road, Wheaton, Illinois.

The automobile was not parked on a public street but was on a private parking complex used by the people living in the immediate vicinity. As a tenant of the town house, Claimant had a parking space which was located about 20 feet in front of her front door.

The car had been parked by Claimant’s husband at approximately 11:00 p.m. on October 5, 1974. At about 7:55 p.m. on October 5, 1974, one Thomas Leach, 13 years old, an inmate of the Illinois Youth Center, escaped from the Center with another inmate. They broke a lock on a door and climbed through a second story window. Leach had a record of prior escapes from the Center. After escaping, the two inmates split up.

Some time during the morning of October 6, 1974, Leach stole the Claimant’s car from its parking place. At about 9:00 a.m. of the same day, he was involved in a collision at the intersection of Montrose and Kenzie in Chicago at which time the car was totally wrecked. The car was towed to a city vehicle pound.

Mrs. Briggs did not know her car had been stolen until she was notified later that morning by the Wheaton Police Department that it had been in an accident in Chicago.

There is a direct conflict as to whether or not the ignition key was in the car at the time it was stolen.

Mr. Briggs testified that when he parked the car, he took the keys out of the ignition and put them in his pocket. His wife testified that she had not left keys in the car, that they had only two sets, and they had not had any additional keys made. She produced both sets of keys in Court.

Leach’s affidavit was admitted into evidence by agreement of the parties and contained the following two statements:

I entered the vehicle through an unlocked door. I started it with the keys that were on the floor shift console.

The Chicago Police Department Vehicle Tow Report shows keys in the ignition and the Vehicle Inventory Report is stamped Keys in Office.

The State contends that Claimant was negligent in that the keys were left in the car.

This Court has repeatedly held that prior to recovery for damages caused by a State inmate, Claimant must prove that such inmate escaped from the institution over which the State had control, and that the inmate caused the damage while at liberty.

It is clear that in this case the escapee, Thomas Leach, had escaped from an institution on one or more occasions in the past which would serve notice on the State that he was an individual who would be prone to escape, and there is no question from the record that he stole the car. While it is true that it is Claimant’s burden to prove negligence by a preponderance of the evidence, the failure of the State to introduce any evidence to rebut the prima facie case causes the prima facie case to stand.

As stated in Elgin Salvage and Supply Company, Inc. vs. State of Illinois, 26 Ill.Ct.Cl. 278:

It is the opinion of the Court that the evidence offered by Claimant is sufficient to establish a prima facie case of negligence on the part of Respondent. Berdine, in view of his past record, should have been kept under greater surveillance than the ordinary inmate. The evidence does not indicate that Respondent took any special steps to prevent his escape, even though the record indicated prior escapes.
Respondent offered no testimony on the point. The facts pertaining to the surveillance and escape of the inmate were in the exclusive control of Respondent, and leave the implication that said evidence would have been presented had the same been favorable to Respondent.

Similar language appears in various of the Court of Claims cases arising under the act pertaining to theft or damage by escaped inmates. See: U.S. Fidelity and Guaranty Company, a Corporation, vs. State of Illinois, 23 Ill.Ct.Cl. 188; Redebaugh vs. State of Illinois, 22 Ill.Ct.Cl. 306; Finch vs. State of Illinois, 22 Ill.Ct.Cl. 376; Poleet, et al. vs. State of Illinois, No. 6173.

The question is whether or not the Claimant is free from contributory negligence by leaving the keys in the car, and this question has been cited many times in the past by this Court.

The escapee made the statement that "I started it with the keys that were on the floor shift console.” If the keys were in the car, they were left there by Mr. Briggs, who is not the owner of the car but was the last person to use the car.

If his act was negligent, Mrs. Briggs would not be bound by any such act of negligence unless she had someway authorized it or unless such negligence was the sole proximate cause of the loss of the car.

It is clear from the rulings of this Court and from the rulings of the Appellate Courts of Illinois, that Sec. 11-1401 of the Illinois Motor Vehicle Code is irrelevant to key in car cases unless the vehicle is parked on a public highway. A prima facie case of negligence from violation of the Illinois Motor Vehicle Code arises only when the vehicle is parked on the public highway. Here the vehicle was not parked on the public highway, so the statute has no application.

However, as pointed out by Respondent in its brief, the question of contributory negligence as an issue of fact is present in any case where a vehicle is left unlocked, unattended, and with the ignition keys in the car, even when parked on private property.

The Court of Claims has considered this factual issue in a wide variety of factual situations. The fact situations previously passed on by the Court can be found in the following cases:

Fuller vs. State, Ill.Ct.Cl. 14. Car parked by employee in the parking lot of the store where he worked. Parking area in the front of the store.
Spear vs. State, 26 Ill.Ct.Cl. 32. Car parked under implement shed on grounds of Morris Country Club.
Castoro vs. State, 26 Ill.Ct.Cl. 468. Car parked in a privae parking lot adjacent to employer’s place of business.
Kendrick vs. State, 26 Ill.Ct.Cl. 471. Car parked in a private parking area parallel to the street and about 40 feet from Claimant’s home.
Kent vs. State, 24 Ill.Ct.Cl. 321. Car parked in garage in home.
U.S. Fidelity and Guaranty Co. vs. State, 23 Ill.Ct.Cl. 188. Car parked in driveway of home.

In none of the above cases was the Claimant found to be guilty of contributory negligence. In most of the above cases, the general public had ready access to the site where the car was parked. In some of the cases above, the car was parked much closer to the highway than in the instant case. In the opinion of the Court, the Claimant was not guilty of contributory negligence, even if she was in some way responsible for her car being parked with the keys in it because it was parked on private property 100 yards off the highway in a private parking lot in front of her own townhouse.

The best testimony as to the amount of damages suffered by Claimant as a result of said occurrence would have been expert opinion testimony as to the market value of the car at the time it was stolen and destroyed. This testimony is generally given by persons engaged in the business of selling or repairing automobiles.

However, the record is not totally devoid of elements of proof from which a determination of damages can be made.

The record discloses that Claimant paid $400.00 for the car on or about July 1, 1974, that on or about July 10, 1974, they paid an additional $400.00 for a new engine, and they also paid $20.00 for a radiator and $40.00 for tires. Their cash investment in the car three months before the occurrence was approximately $860.00.

Interviewed by a member of the Wheaton Police Department when that Department was preparing a Vehicle Theft Case Report, Claimant and her husband acknowledged that they placed a value of $600.00 on the car. It is unfortunate that expert testimony as to the exact value of the car was not introduced into evidence, but there is sufficient evidence on which to base a finding.

It appearing to the Court that the fair market value of the automobile at the time of the occurrence was $600.00, an award is hereby entered in favor of Claimant in that amount.


text:
    (No. 75-554
    George J. Kutselas, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 28, 1978.

    Richard McPartlin, Attorney for Claimant.
    William J. Scott, Attorney General; Jerome Felsenthal, Assistant Attorney General, for Respondent.
   Holderman, J.

In his complaint, Claimant seeks an allowance for back salary for the period of time from July 1, 1969, to August 1, 1971, under the following facts:

Claimant had been employed by State of Illinois Department of Revenue performing duties as Revenue Inspector III. On January 21, 1969, he had reached pay schedule referred to as Step 5 for the position. This amounted to $675 a month.

On January 21, 1969, he was laid off from his position for alleged "lack of work resulting from a material change in organization.”

On July 1, 1969, the Director of Revenue created positions entitled "Revenue Collection Officers I, II, and III.” The duties of Revenue Collection Officer I, as created July 1, 1969, involved substantially the same duties as Claimant performed formerly as Revenue Inspector III.

On November 26, 1969, Claimant filed an Intervening Complaint for Declaratory Judgment in a case pending in the Circuit Court of Cook County. He asked the Court to reinstate him to his former position and for payment of back salary for the period of time which he claimed was an illegal layoff. On May 22, 1974, the Circuit Court found that the position of Revenue Collection Officer III, formerly occupied by Claimant, was the same position as Revenue Collection Officer I in the Department of Revenue, as created July 1, 1969. The Court further found that the Claimant was to be reinstated with full service status and with full credit for seniority, pension and all other purposes from the time of the original appointment as Revenue Collection Officer III, except for the period of time of his layoff in January, 1969, to July 1, 1969. The Court further ordered that the reinstatement was without prejudice of Claimant’s right to file suit in the Court of Claims for any back salary.

It was agreed that Claimant is entitled to compensation from July 1, 1969, to August 1, 1971, but the amount is in dispute. It was further agreed that Claimant’s outside earnings for this period were $13,486, and that this should be set off from any salary he was entitled to.

The Claimant argues that the correct monthly salary from July 1, 1969, was $778 a month, being the rate for Step 5.

Respondent contends that the proper monthly rate was $625, being the rate for Step 1 at that time.

When Claimant was laid off in January, 1969, he was receiving $675 a month, being the rate at Step 5 for his position.

If Claimant is correct, he is entitled to $6,481. If Respondent is correct, Claimant is entitled to $3,114. This assumes also that the record is clear that the correct set off is $13,486.

The whole dispute resolves itself in the one question: Was Claimant entitled to a Step 5 rate from July 1, 1969, or was he limited to a Step 1 rate?

The State argues that to determine the salary at Step 5 rate of $778 a month from July 1, 1969, would be tantamount to an increase of $103 over what he was making in January of 1969 when laid off. Further, it argues that upon the creation of the posts of Revenue Collection Officers on July 1, 1969, the majority of persons hired were employed at $625 per month, which was the Step 1 rate.

Claimant argues that the Circuit Court had held that Claimant was entitled to be reinstated under the title of Revenue Collection Officer I on July 1, 1969. He further points out that the salary for Step 5 for Revenue Collection Officer I was $778, as appears in the pay plan introduced in evidence; that the pay plan provided for a certain increase effective September 1, 1970; that therefore his back salary should be figured at $778 a month starting July, 1969, to September, 1970, and at the rate of $825 a month from September 1, 1970, to August 1, 1971, the cut-off date of his claim.

Under the position taken by Respondent, Claimant would be compelled to take a reduction in salary upon his reinstatement since he was making $675 a month when laid off and the pay for Step 1 after July 1, 1969, was only $625 a month.

Witness John E. Cooke, employed as a Personnel Analyst for the Department of Personnel, State of Illinois, testified that there was actually nothing specifically in the pay plan which covered a situation where a Court held that where one job was presumably abolished it was not actually in effect abolished but was continued on under a new title. He further testified that if Claimant left in good standing and was reinstated, that his reinstatement would be to his comparable step regardless of what the salary would be.

Ultimately the issue is whether the old job was reestablished or whether a new job was created.

Our position is, based on the record before us, that since the duties of the new job and the old job were substantially the same, as the Court held, that the new job was a re-creation of the old job. Therefore, Claimant is entitled to a Step 5 rate of $778 a month starting July 1, 1969, with increases effective thereafter.

Respondent also argued that Claimant had a duty to mitigate his damages and that he failed to prove mitigation completely.

It has been held that when an employee is wrongfully discharged, in his suit for back salary the burden of proving earnings to mitigate the loss of salary is on the State. See People v. Johnson, 32 I11.2d 324; 205 N.E.2d 470, 473.

The proof in this case established that the Claimant had earned $13,486 as outside earnings during the period of his layoff. Deducting this from $19,967, the total lost salary at Step 5 rate, leaves a balance due him for back salary of $6,481.

The Court was advised by its Commissioner, who heard the evidence that the Claimant "was not paying Social Security at the time of his termination; that he no longer desires to be employed by the State; and that no further consideration should be made at this time regarding his pension contributions.”

Claimant is hereby awarded the sum of Six Thousand Four Hundred Eighty-One Dollars ($6,481.00) in payment of back salary, and said award will be subject to any and all Federal income tax and State income tax deductions.


text:
    (No. 75-770
    John A. Stevens, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 8, 1977.

    Conklin, Leahy & Eisenberg, by Daniel J. Leahy, Attorney for Claimant.

      William J. Scott, Attorney General; James Stola, Assistant Attorney General, for Respondent.
   Polos, C. J.

Claimant John A. Stevens has brought this action to recover back wages allegedly due him for the period during which he was discharged by the Illinois Bureau of Investigation.

It appears that on July 27, 1971, Claimant was discharged from his position as a squad leader with the Illinois Bureau of Investigation after being suspended on June 23, 1971. He demanded a hearing before the Civil Service Commission on July 10, 1971, which hearing was held in September, 1971. On December 8, 1971 the Civil Service Commission entered an order discharging Claimant from the Illinois Bureau of Investigation.

Claimant appealed that ruling to the Circuit Court of Cook County. On July 6, 1972, the Honorable Edward Healy entered an order directing that Claimant be reinstated to his last held position with the Illinois Bureau of Investigation. That order was appealed by Respondent to the Illinois Appellate Court which on April 11, 1974, affirmed the order of the Circuit Court. Thereafter, Respondent filed a petition for leave to appeal to the Illinois Supreme Court, but leave to appeal was denied on or about September 27, 1974.

Claimant was reinstated to his former position with the Illinois Bureau of Investigation on November 1, 1974.

Claimant seeks the sum of $39,879.36 in damages, representing the back salary he would have earned less monies he actually earned from other sources during the period of his discharge. Claimant also seeks an award of interest on the amount of his claim.

Respondent has stipulated that the sum of $39,879.36 is the amount of Claimant’s back salary, less amounts earned by him during the period of his discharge. Respondent contends, however, that Claimant did not do all in his power to mitigate his damages, and that this Court is without jurisdiction to award interest on Claimant’s recovery.

The hearing herein was accordingly limited solely to the question of whether Claimant properly mitigated his damages. Claimant testified that he had extensive administrative experience in law enforcement, particularly in narcotics work. He had been employed by the Illinois Bureau of Investigation until July, 1971, when he was suspended and was subsequently reinstated on November 1, 1974.

Claimant testified that he was unemployed from July, 1971, to December 31, 1971, and had not sought employment during that period. In January, 1972, he contacted an employment agency called "Executive Careers Incorporated” but did not retain the firm because they wanted $1,500 as an application fee. He then went to another employment agency called "Interviewing Dynamics, Incorporated” and paid them a fee of $500 as a retainer. He said that the agency mailed one hundred copies of his resume to various companies and placed an ad for him in the Wall Street Journal. He received no response to his resumes or the ad.

On April 17, 1972, he applied without success for jobs with Oak Security Company in Milwaukee, Wisconsin, and Xerox Corporation. In July, 1972, Claimant unsuccessfully applied for teaching positions in the law enforcement programs at the University of Illinois and Joliet Junior College. He said he was denied a position at Joliet Junior College because he was under suspension from his job with the Illinois Bureau of Investigation.

In July, 1972, Claimant worked as an investigator for a law firm on a per diem basis, earning $625. In August, 1972, he went to work for J & R Security Co. of Joliet, Illinois, earning $1.90 per hour as a security guard. He worked there until October 30, 1972, when he took a job with a detective agency. He remained with the detective agency for a period and then worked on a series of security jobs until he was reinstated by the Illinois Bureau of Investigation in November, 1974.

Claimant further said that he thought his inability to find employment was connected with his suspension which had been publicized in the newspaper. He further testified that Mitchell Ware, the head of the I.B.I., had told him at the time of his suspension that he would see to it that Claimant never again got a job in law enforcement.

This Court has long held that a Civil Service employee who is wrongfully discharged and subsequently reinstated to the position by a court of competent jurisdiction is entitled to receive the salary he would have received were it not for the wrongful discharge. Ryan v. State, 26 Ill.Ct.Cl. 117. We have also held however that in such a case the Claimant must do all in his power to mitigate his damages and if he has not done so, it is the function of the Court of Claims to determine the reasonable amount of the damages which should have been mitigated. Stephanites v. State, 22 Ill.Ct.Cl. 453.

We think that Claimant did all that he reasonably could have done to mitigate his damages during the period of his discharge. Claimant received a written opinion from the Civil Service Commission on January 4, 1972, dated December 8, 1971, discharging him from the I.B.I. Thereafter he worked at numerous jobs and made continuous efforts to obtain employment. The Court feels that he acted properly and in good faith to mitigate his damages.

Claimant contends that he should be awarded interest on his award at the rate of 5% per annum, pursuant to Ill.Rev.Stat., Ch. 74, §2, which provides:

Creditors shall be allowed to receive at the rate of (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advance for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.

We do not consider the foregoing statue to have any applicability to claims against the State. Claimant’s request for an award of interest is therefore denied.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of Thirty-Nine Thousand Eight Hundred Seventy-Nine and 36/100 Dollars ($39,879.36) subject to the appropriate deductions and contributions for Social Security, retirement fund and withholding tax payments.


text:
    (No. 75-1035
    Texaco, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 22, 1976.

    Gregory S. Murray, Attorney for Claimant.

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

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

This Court finds that this claim is for the recovery of the proceeds of a security interest held by Claimant in an inventory of Robert Cordtz that the Department of Revenue attached (pursuant to the State’s lien and assessment B-32326) for Cordtz’s failure to pay $2,561.70 in back taxes. An investigation of this claim by the Department of Revenue and substantiated by the files of the Secretary of State determined that Claimant’s security interest of $1,301.17 was superior to the State’s lien. The investigation further disclosed that Claimant’s priority interest was pursuant to the Uniform Commercial Code, Ill.Rev.Stat., Ch. 26, §1-101 et. seq.

It is hereby ordered that the sum of One Thousand Three Hundred One and 17/100 Dollars ($1,301.17) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


author: Polos, C. J..

text:
    (No. 75-1040
    Charles J. Kolker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 21, 1977.

      Charles J. Kolker, Pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C. J..

Claimant Charles J. Kolker and Respondent have asked the Court to rule on this case on the basis of a joint stipulation of facts and the departmental report herein. The Claimant is a licensed attorney, who had rendered services to the Illinois Fair Employment Practices Commission as a hearing examiner. The Illinois Fair Employment Practices Commission was unable to pay Claimant’s billing for services rendered because the volume of complaints filed with the Commission rendered the appropriation made for that purpose inadequate. The State recognizes the validity of this claim, but questions whether it may be paid in view of the absence of an unexpended portion of any appropriation at the time it was incurred.

Although the Constitution of 1870 has now been superceded, and the instant claim arose subsequent to the effective date of the Constitution of 1970, the decisions interpreting Article IV, Sec. 19 of the Constitution of 1870 are still pertinent in view of the essential similarity of that provision with Ill.Rev.Stat., Ch. 127, §166 which is still in full force and effect. Both forbid the State to incur debts in excess of money appropriated unless expressly authorized by law:

The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, or authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void; provided, the General Assembly may make appropriations for expenditures incurred in supressing insurrection or repelling invasion. Art. IV, Sec. 19, Constitution of Illinois 1870.
No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the- State in an amount in excess of the money appropriated, unless expressly authorized by law. Ill.Rev.Stat., Ch. 127, §166.

The leading cases on the question of whether an expenditure may be honored in excess of an appropriation are Fergus v. Brady, 277 Ill. 272; and Board of School Inspectors of the City of Peoria v. State, 12 Ill.Ct.Cl. 17.

The following quotation from Fergus v. Brady, is particularly appropriate to the question of when an expenditure is "expressly authorized by law”:

In Sec. 19, claims under an agreement or contract made by express authority of law are excepted, and if there is some particular and specific thing which an officer, board or agency of the state is required to do, the performance of the duty is expressly authorized by law. That authority is express which confers power to do a particular, identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may be valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied or not directly stated or given. An example of such express authority is found in one of the deficiency appropriations to the Southern Illinois Penitentiary which had been paid, and serves only as an illustration. The authorities in control of the penitentiary are required by law to receive, feed, clothe and guard prisoners convicted of crime and placed in their care, involving the expenditure of money which may vary on account of the cost of clothing, food and labor beyond the control of the authorities, and which could not be accurately estimated in advance for that reason or by determining the exact number of inmates. Fergus v. Brady, 277 Ill. 272, at 279.

Board of School Inspectors v. State involved a suit by the City of Peoria for reimbursement of expenses incurred in the education of crippled children. The City had incurred the expenses after the Illinois Legislature enacted a statute providing for reimbursement of the expenses incurred by school districts or others in the education of crippled children. In passing the statute the legislature provided for $100,000 to defray this expense, but the response was so overwhelming that the expenses of the various school districts far exceeded the $100,000. The claims of the various school districts were prorated, and the City of Peoria brought suit for the excess over and above their prorated share. The Court, citing Fergus v. Brady, held that the City of Peoria had no claim to any further reimbursement as the expenditure was not one "expressly authorized by law” in that it was not compulsory that the counties provide the education for these crippled children. The Court pointed out that many school districts throughout the State did not choose in participate in the program.

It is inherent in the administration of State government that expenditures should not exceed appropriations. Only where the spending agency is compelled by circumstances and law to obligate the State can an obligation in excess of any appropriation be honored. Without strict and well enforced guidelines, the spending of State officials could become rampant.

The drafters of the Constitution of 1970 were fully cognizant of this situation when they drafted Article VIII, Sec. 1. They provided two requisites for spending public funds: it must be for a "public purpose,” and it must be "only as authorized by law”:

Section 1. General provisions
(a) Public funds, property or credit shall be used only for public purpose.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.

Further Ill.Rev.Stat., Ch. 127, §166 remains in full force and effect and retains the restrictive phrase "expressly authorized by law.”

Thus, the issue before us is whether the expenditures of the Fair Employment Practices Commission for hearings and records thereof, were absolutely or expressly required by law. Was the obligation analogous to the situation where the prison officials had no choice but to feed, clothe and house the prisoners assigned to their care?

We conclude, after a careful reading of the Fair Employment Practices Act, Ill.Rev.Stat., Ch. 48, §851, et. seq., that the Commission was required by law to provide hearings for complainants and was thus required by law to make the expenditure which is the subject of this action. The instant expenditure therefore comes within the narrow exception delineated in Fergus v. Brady.

Claimant Charles J. Kolker is therefore awarded the sum of Seven Hundred Sixteen and 75/100 Dollars ($716.75).


text:
    (No. 75-1244
    Stephen T. Skertich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 16, 1976.

    Stephen T. Skertich, Pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

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

This Court finds that the subject of this claim is the correction of an administrative oversight in the failure of the Department of Public Aid to pay the Claimant a five per cent (5%) shift differential for working as a Computer Production Controller II on a work shift other than the routine 8:30 a.m. to 5:00 p.m. work day.

The rules of the Department of Public Aid at the time the services were rendered provided for a shift differential pay of five per cent, but because of a clerical error the shift differential was not paid to Mr. Skertich, but it was paid to all others working the same shift with Mr. Skertich.

The Stipulation was entered into pursuant to this Court’s previous holdings in the cases of Retta Mae Allen, No. 7048, Donald W. Vickers, No.7036, Curtiss Anderson, No. 6700, and Paskus, 26 Ill.Ct.Cl. 107, wherein each case the Court held that inasmuch as the failure to pay the employee the appropriate rate of pay was due solely to an administrative error on the part of the agency involved, the State could not take advantage of its own error and deny the recovery.

Except for the administrative error above explained, the sole reason that this claim was not previously paid is due to the lapse of the appropriation, the same having been confirmed by the Department of Public Aid, a copy of the report is attached to the Joint Stipulation of the parties. Said departmental report indicates that Mr. Skertich is due the amount of $444.46.

We find that the Claimant is due the amount of $444.46 in gross salary, plus employer contributions of $55.78, for a total employee benefit of $500.24 which should be disbursed by the Comptroller and credited as follows:

To the State Employees Retirement System as follows:

$ 17.78 Employee’s contribution to State Employees Retirement System
$ 26.00 Employee’s contribution to F.I.C.A.
$ 29.78 State’s contribution to State Employees Retirement System
$ 26.00 State’s contribution to F.I.C.A.

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

$ 39.88 Claimant’s Federal Income tax withholding for current taxable year.

To the Illinois Department of Revenue, Income Tax Division:

$ 6.94 Claimant’s Illinois Income tax withholding for current taxable year.

To the Claimant:

$ 353.86 Claimant’s net salary after all of the above contributions and withholdings have been deducted from the above total employee benefit.

It is therefore ordered that Claimant be and is hereby awarded the total employee benefit of Five Hundred and 24/100 Dollars ($500.24) to be disbursed and credited in accordance with our above finding.


text:
    (No. 75-1226
    Robert W. Genty, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 6, 1976.

      Arthur J. O’Donnell, Attorney for Claimant.
    William J. Scott, Attorney General; Melbourne A. Noel, Jr., Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant filed a claim for $20,252.40 for salary alleged to be due him during the time of his suspension from duty as an Illinois State Trooper from December 9, 1972, to and including August 21, 1974.

The amended complaint sought an additional sum of $1,080.00 as compensation for vacation and holiday allowances he had not received, and Claimant seeks to subtract this amount from his earnings made in outside employment during the time he was suspended.

A stipulation was entered into by the parties hereto, which stipulation is as follows:

It is hereby stipulated and agreed by and between Dwight E. Pitman, Superintendent of State Police, Department of Law Enforcement, through his attorney, William J. Scott, Attorney General of the State of Illinois, and Robert W. Genty, Jr., I.D. No. 1761, through his attorney, Arthur J. O’Donnell, as follows:

1. That any and all charges brought before the Merit Board by the Superintendent against Trooper Genty in cause No. 72-2 will be and the same are withdrawn effective this date;

2. That Trooper Robert W. Genty’s suspension from duty, entered December 8, 1972, is hereby withdrawn; and Trooper Robert W. Genty, Jr. is restored to active duty as a Trooper in the Illinois State Police with seniority unimpaired;

3. That Trooper Robert W. Genty, Jr. is entitled to compensation for wages and benefits as a Trooper of the Illinois State Police during the period of his suspension from duty from December 9, 1972, to and including August 21, 1974, subject to applicable rules of the Division of State Police, Illinois Department of Law Enforcement, and the applicable rules of the Illinois Court of Claims, including but not limited to rules, if any, regarding the set-off of wages actually earned against compensation claimed.

4. That the Division of State Police, Illinois Department of Law Enforcement, shall not oppose any timely and proper petition or claim for compensation for wages and benefits, in accordance with paragraph No. 3 above, which may be brought by Robert W. Genty, Jr. in the Illinois Court of Claims or before any other appropriate agency of the State of Illinois;

5. Trooper Robert W. Genty, Jr. shall voluntarily tender his resignation from the Division of State Police, Illinois Department of Law Enforcement, effective 12:01 a.m., August 22, 1974.

From the evidence introduced at the hearing and as a result of the stipulation filed herein, it appears that the Claimant, Robert W. Genty, Jr. was suspended as an Illinois State Trooper by the State Police Merit Board.

A lawsuit was filed in the Circuit Court of Cook County, and as a result of said lawsuit an agreement was entered into by the Claimant and the State of Illinois whereby Claimant would be restored to full duty as a State Trooper and be allowed to recover his loss of earnings for the time he was suspended upon the condition of his resigning from the State Police Force.

It was stipulated that Claimant’s earnings during the time of his suspension were $20,252.40. At the hearing, it was determined that during the period of his suspension Claimant earned the sum of $9,928.25 which should be deducted from the Claimant’s earnings during the period of this suspension.

As a State Trooper, Claimant was entitled to certain vacation and holiday allowances as per applicable State Police Departmental Regulations. He seeks to subtract these vacation and holiday allowances which total $1,080.00 from the earnings he made in outside employment while suspended.

The question therefore which presents itself is whether or not Claimant is entitled to these vacations and holiday allowances as claimed.

Claimant cites the case of Wagner vs. State of Illinois, No. 5208, 26 Ill.Ct.Cl. 402, as being on all fours with the present case. In that case, while the suspended Claimant was employed in private industry he received a lower hourly rate than he would have received as a highway patrolman, and instead of working 45 hours per week as a highway patrolman he averaged approximately 60 hours per week.

Claimant also cites the case of Burke vs. State of Illinois, 26 Ill.Ct.Cl. 267. In that case, a claim was filed by the surviving heirs of one Madge Clark who was an employee of the Illinois State Training School for Girls at Geneva, Illinois. At the time of her death, it appeared she was entitled to 16-1/2 work days of vacation time and 10-1/2 work days of accumulated time. A stipulation was entered into by the parties allowing the amount due for accumulated vacation time and accumulated work days at the time of decedent’s death.

In the present case, the stipulation says nothing about vacation or other accumulated time.

Matters of this nature have been passed upon several times by this Court. In no instance except by stipulation was any award given for vacation time or accumulated work days.

In the case of King, Lassin and Leslie vs. State of Illinois, 26 Ill.Ct.Cl. 396, an award was entered which allowed Claimants’ pay due them during their period of suspension. The same was true in the case of Wagner vs. State of Illinois, 26 Ill.Ct.Cl. 402, and also in the case of Sullivan vs. State of Illinois, 26 Ill.Ct.Cl. 117.

In the case of Farber vs. State of Illinois, 25 Ill.Ct.Cl. 89, the Court held that when the Claimant has done everything possible to mitigate damages, he is entitled to back salary. Nothing was said about any employment benefits, etc.

In the case of Schneider vs. State of Illinois, 22 Ill.Ct.Cl. 453, the Court goes into great detail as to what a Claimant in a situation such as the present one is entitled. This case held that where a Civil Service employee is illegally prevented from performing his duties and is reinstated by a Court of competent jurisdiction, he is entitled to the salary attached to said office for the period of his removal. There was a full and complete discussion of this matter in that particular case, but nowhere was it held that Claimant was entitled to anything other than the amount due him in back salary.

It therefore appears to this Court that Claimant is entitled to the sum of $10,324.15. This amount represents his stipulated gross earnings of $20,252.40 during his period of suspension less his earnings from outside employment in the amount of $9,928.25.

An award is hereby entered in the amount of Ten Thousand Three Hundred Twenty-Four and 15/100 Dollars ($10,324.15), less any deductions that should be made for Federal income tax, State income tax, and State Employees’ Retirement System.


text:
    (No. 75-1265
    Iowa-Illinois Gas and Electric Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 22, 1976.

   Perlin, C. J.

This cause coming on to be heard on the Stipulation of the Respondent, and this Court being fully advised in the premises find that the Act, as set forth in the Stipulation of the Resondent, which stipulation is set out in full below, is sufficient to grant an award.

"STIPULATION BY RESPONDENT”

Now comes the Respondent by William J. Scott, Illinois Attorney General, and stipulates as follows:

1. That the effective date of the State Comptroller’s Act was January 8, 1973.

1A. The State Comptrollers Act, Warrants Procedure, Chapter 15, Sec. 222 of the Ill.Rev.Stat., 1975, states:

Warrants outstanding on the effective date of this Act shall be governed by the law in effect on January 7, 1973, except for such provisions of this Act as may be made applicable by the Comptroller with approval of the State Treasurer.

2. The Office of the Comptroller has confirmed that there were no regulations adopted relating to Chapter 15, paragraph 222, Ill.Rev.Stat., 1975.

3. It is admitted that warrant no. AA1737200 was issued to Iowa-Illinois Gas & Electric Co. in the amount of $196.27, (One Hundred Ninety-Six and 27/100) on December 1, 1971.

4. As of January 7, 1973, said warrant had not yet been presented to the Auditor of Public Accounts for collection. However, it was never presented for collection to the Office of the Comptroller.

5. That the law in effect on January 7, 1973, provided that if the Auditor of Public Accounts should reject the claim for payment of a void warrant, the Claimant could file an action in the Court of Claims (Chapter 49, Sec. 24, Ill.Rev.Stat., 1971).

6. Claimant’s complaint for replacement of warrant no. AA1737200 was filed with the Court of Claims on May 1, 1975, less than four years from the date of issuance of said warrant.

7. That the law in effect on January 7, 1973, provided that any warrant issued by the State of Illinois and not cashed within two years of the date of issuance is void and escheats to the State of Illinois, (Chapter 49, Sec. 22, Ill.Rev.Stat., 1971).

8. That the law in effect on January 7, 1973, provided that the statute of limitations for such action as the instant case begins to run only upon the warrant becoming void (Chap. 29, Sec. 24, Ill.Rev.Stat., 1971) and in the instant case, said limitation period therefore began to run on December 1, 1973.

9. That the Court of Claims Act in effect on January 7, 1973, provided for a two year statute of limitations on all cases except contract actions and actions of vendors of goods and services to the State.

10. That therefore the instant action filed on May 1, 1975, was filed before the expiration of the applicable statute of limitations which would be four years from the date of issuance.

It is therefore ordered that the Claimant be granted an award in the amount of One Hundred Ninety-Six and 27/100 Dollars ($196.27).


text:
    (No. 75-1496
    James Alexander, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1976.

   Perlin, C. J.

This is an action to recover the value of a coat which Claimant lost during the course of an interinstitutional transfer on January 11, 1975 from the Fox Valley Work Release Center to the Joliet Correctional Center.

Claimant has moved for summary judgment to which Respondent has not objected.

In support of his motion, Claimant has submitted a report of the Department of Corrections Administrative Review Board which admits that Claimant’s coat was lost through the negligence of employees of the Department of Corrections and establishes the value of his coat at $99.75.

On consideration thereof, Claimant’s motion for summary judgment is hereby granted, and Claimant is awarded the sum of Ninety-Nine and 75/100 Dollars ($99.75).


author: Berlin, C. J.

text:
    (No. 76-490
    Universal Business Machines, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1976.

   Berlin, C. J.

This cause coming on to be heard on the Stipulation of Universal Business Machines, Inc., Record Systems, Inc., and the Respondent, and the Court being fully advised in the premises finds that the Respondent has stated good and sufficient grounds for Record Systems, Inc. to be declared a Co-Claimant, said action being required to protect the interest of the State.

It is therefore ordered that the records of the Clerk of the Court of Claims be amended to show Record Systems, Inc. as a party Claimant pursuant to Respondent’s Motion for Interpleader.

It is further ordered that, Claimant, Universal Business Machines, Inc. be awarded the sum of Twenty Thousand Eight Hundred Forty-Four and 79/100 Dollars ($20,844.79), and that Co-Claimant, Record Systems, Inc. be awarded the sum of Two Thousand Nine Hundred Thirty-One and 71/100 Dollars ($2,931.71), with said total sum of all awards herein being no greater than the original contract obligations of the Respondent.


text:
    (No. 76-491
    Pamela Wesley, Claimant, vs. State of Illinois, Department of Children and Family Services, Department of Mental Health and Developmental Disabilities, and Department of Corrections, Juvenile Division, Respondent.

      Opinion filed September 9, 1976.

   Per Curiam.

This cause coming on to be heard on the Stipulation of the parties hereto which reads as follows:

1. The instant cause filed on October 2, 1975, is based upon the alleged tortious acts of agents and employees of the Illinois Department of Children and Family Services, the Illinois Department of Mental Health and Developmental Disabilities, and the Illinois Department of Corrections-Juvenile Division.

2. Prior to the filing of the instant cause, Pamela Wesley filed suit in the United States District Court for the Northern District of Illinois, No. 71 C 794 titled Wesley vs. Weaver et al. against various past and present employees of Respondents, which complaint was incorporated into the instant claim.

3. The Claimant agrees to strike from the instant claim all reference to and questions arising from the allegations going to the alleged denial of constitutional rights as contained in the instant claim.

4. The Claimant expressly agrees to perform all acts necessary to effect dismissal of the above federal case and further agrees that the entry of an award by this Court and the satisfaction of said award shall waive, release, relinquish and forever bar all claims or causes of action that Claimant has or may have against any officers, agents and employees of the Respondent Departments, from the beginning of time to the date of these presents.

5. The Respondent Departments by their directors, after complete investigation of the facts and elements that are the basis of this claim and upon the advice and .counsel of their respective departmental attorneys, hereby instruct and advise the Attorney General’s Office and the Justices of the Court of Claims that the interests of the State of Illinois will best be served by the entry of an award to the Claimant in the amount of Thirty-Three Thousand Dollars ($33,000.00).

The foregoing stipulation was signed by the Claimant, Pamela Wesley; by her attorney, Roger B. Derstine; and by the following officers of the Respondent: For the Department of Children and Family Services, Mary Lee Leahy, Director, and Marian Barnes, Chief Technical Advisor; For the Department of Mental Health & Developmental Disabilities, LeRoy P. Leavitt, M.D., Director, and Alan E. Grischke, Chief Counsel; For the Department of Corrections-Juvenile Division, Charles J. Rowe, Acting Director, and Jeffrey C. Doane, Chief Counsel; and by William J. Scott, Attorney General, as counsel for the Respondent; and the Court being fully advised in the premises;

It is hereby ordered that the sum of Thirty-Three Thousand Dollars ($33,000.00) be awarded to Claimant in full satisfaction of any and all claims or courses of action that Claimant has or may have against any officers, agents and employees of the Respondent departments from the beginning of time to the date of these presents.