author: Holderman, J. Holderman, J.

text:
    (No. 84-CC-1417
    Richard Jaterka, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed April 3, 1984.

      Order on stipulation filed November 21, 1986.

    Heller & Morris & Associates, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Erin O’Connell, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss and Claimant’s response to said motion.

Respondent bases its motion to dismiss on the ground that the accident on which this claim is based occurred on November 1, 1982, and that the notice of claim was filed on May 2,1983, one day late, in violation of section 22 — 1 of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.22 — 1), which requires notice of claim be filed within six months.

Claimant’s response sets forth that May 1,1983, was a Sunday and cites section 1.11 of “An act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1981, ch. 1, par. 1012), which states:

“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.”

Claimant also cited among his cases, in support of his position, In re Application of County Treasurer (1975), 26 Ill. App. 3d 753, which states that Sundays and holidays will be excluded in the statutory computation of notice period within which taxpayers might file complaints.

It is hereby ordered that Respondent’s motion to dismiss be, and the same is, denied, and this cause is ordered set for hearing before a Commissioner.

ORDER ON STIPULATION

Holderman, J.

This cause coming to be heard on this date upon the stipulation for dismissal with prejudice filed herein by the above-named parties, and the Court having examined said stipulation and being fully advised in the premises, finds that the parties have stipulated and agreed to dismissal of the complaint with prejudice, and that the Court further finds that all costs have been paid.

It is therefore ordered that the claim of the Claimant against the Respondent be and the same is hereby dismissed with prejudice.


source: Caselaw Access Project

author: Montana, C.J.

license: Public Domain

text:
    (No. 84-CC-1448
    Stanko Packing Company, d/b/a Nebraska Beef Processors, Claimant, v. The State of Illinois Department of Central Management Services, Procurement Services Division, Respondent.

      Order filed July 1, 1986.

    Miller, Shakman, Nathan & Hamilton (R. Dickey Hamilton, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This cause comes on to be heard following the filing of a joint stipulation whereby the parties have agreed to the entry of an award herein in the amount of $124,398.09. The parties stipulated as follows:

1. Claimant is a producer and seller of beef and beef products. Claimant’s total claim, excluding interest, is $177,044.33. The State and Claimant propose to settle that claim for $124,398.09.

2. In Fiscal Year 1984 the State of Illinois ordered from the Claimant various beef products, the total price of which was $140,485.65. These beef products were to be used by sixteen various State agencies and were to be paid for from eleven fiscal year 1984 line items.

3. Prior to September 20, 1983, Claimant had been selling meat products to the State and the State had been purchasing meat products from Claimant since 1976. Prior to September 20, 1983, all of the meat products tendered for sale by Claimant to the State were accepted and were found to be satisfactory to the State except for a portion of one 1979 shipment with respect to which it was found that Claimant had acted in good faith and that the problem, if any, was caused by the Meat Grading Branch of the United States Department of Agriculture.

4. Pursuant to contracts between Claimant and the State, beef and beef products with a value of $69,882.36 were delivered by Claimant to the State of Illinois, prior to September 20, 1983. The State has not paid for the beef and beef products delivered.

5. Sometime prior to September 20,1983, the State became aware of allegations regarding improper meat processing practices by the Cattle King Packing Company, a company that the State understands is owned by the person or persons who own Claimant. On September 20, 1983, the State wrote to Claimant and advised Claimant that it refused to pay for the beef previously delivered by the Claimant and also refused to accept any further shipments of beef.

6. The beef delivered by Claimant and in the possession of the State of Illinois has not been tested for contamination and, because the passage of time has rendered any tests inaccurate, it is now too late to scientifically determine whether the beef received by the State was contaminated. Claimant contends that the beef products it delivered to the State were in accordance with the requirements of the United States Department of Agriculture and in accordance with the State and contract specifications; it has so sworn in its complaint and is prepared to so testify at trial. The State has no evidence that the beef products delivered to the State by the Claimant were anything other than in accordance with the requirements of the United States Department of Agriculture and in accordance with the State and contract specifications.

7. Of the beef held in storage by the State of Illinois 640 pounds of hamburger patties, 1,820 pounds of beef clods and 1,000 pounds of diced beef have been destroyed due to spoilage. Said spoilage occurred when the freezer in which the beef was stored malfunctioned.

8. Beef and beef products which Claimant prepared for shipment to the State pursuant to contracts between them and which the State refused to accept has a value of $61,179.37. Claimant contends that because the meat has been prepared to satisfy State specifications, there is no market for the meat and it has not therefore been able to reduce the loss resulting from the State’s refusal to accept delivery. The State has no evidence to refute that contention.

9. Claimant contends that the beef products it prepared pursuant to the contract with the State and which the State refused to accept were in accordance with the requirements of the United States Department of Agriculture and in accordance with the State and contract specifications; it has so sworn in its Complaint and is prepared to so testify at trial. The State has no evidence that the beef products it refused to accept from Claimant were anything other than in accordance with the requirements of the United States Department of Agriculture and in accordance with State and contract specifications.

10. Claimant contends that reasonable storage charges for this meat comes to $4,381.75 for the period through December 14, 1983, and $51.55 per day thereafter, and the State has no evidence to refute that contention. The total storage charges so computed through February 28,1986, come to $45,982.60.

11. The Claimant’s total claim, excluding interest, is as follows:

Value of beef and beef products delivered to State................... $69,882.36

Value of beef and beef products the State refused to accept............... $61,179.37

Storage............................ $45,982.60

Total........$177,044.33

12. The parties have agreed that $124,398.09 is a fair and just settlement in this case.

13. A settlement in this amount was previously presented to this Court. The Court declined to acquiesce in the settlement, citing sparseness of the record. Each of the above facts are true and many of them are now in the record pursuant to three sets of interrogatories and requests to admit facts that Claimant has served on the State. Also, because of additional storage since the settlement was first presented, Claimant’s claim is now $25,053.31 greater.

14. Since the previous settlement was offered, the funds out of which these products would have been purchased have lapsed. Inasmuch as the Claimant has been able and willing to perform its obligations under the contract and the Respondent is unable to certify that the product delivered and offered was unacceptable, the Court should approve this settlement.

15. The departmental report of Central Management Services is attached hereto and incorporated herein.

Wherefore, the Claimant and Respondent jointly pray that this Court enter an award in favor of the Claimant in the amount of $124,398.09.

We have reviewed the stipulation and the record and now find sufficient support for approving the agreed award.

We note however, a discrepancy in the stipulation and the evidence. Paragraph 14 of the stipulation indicates that since the previous settlement was presented to the Court the funds appropriated with which payment for the products would have been made have lapsed. The previous joint stipulation was filed on October 5, 1984, during fiscal year 1985. The internal memorandum dated December 9,1985, attached to the stipulation now before us and offered as a departmental report also indicates that fiscal year 1985 funds were obligated for these purchases and had lapsed. If that was in fact the situation, then the State could have settled this matter without this Court’s participation. The agency which entered into the purchase contracts could have made the payment any time up to September 30,1985.

Elsewhere in the record all other documentation, including paragraph 4 of the stipulation before us, the previous settlement stipulation, and the invoices attached to the complaint, indicates that this was a fiscal year 1984 obligation, funds for which would have lapsed on September 30,1984, more than nine months after the complaint was filed.

Correct and complete fiscal data is essential to a decision in this type of case. Approximately one month after the filing of the stipulation before us, the Respondent filed a substitute internal memorandum. It was identical in substance to the aforementioned memorandum except “FY84” had been substituted for “FY85” as the year of the appropriation. This is the only place in the record where the important issue of lapsing of sufficient funds is addressed. While the report offered in connection with the previous stipulation provided appropriation line items, it did not provide lapsed balances.

This settlement is hereby approved and the Claimant is hereby awarded the sum of $124,398.09 in full and final satisfaction of this claim.

       Claimant also contends that in commercial transactions of the kind involved here it is entitled to interest on the money that has been withheld from it, and Claimant claims interest on both $69,882.36 (the value of the beef and beef products delivered) and on $61,179.37 (the value of the beef and beef products the State refused to accept). Interest on these amounts from October 1, 1983, through February 28, 1986, at a rate of 5% per annum, is $15,836.61. (Footnote included in stipulation)

       Because of the passage of time, Claimant’s interest claim is also $6,553.51 greater. (Footnote included in stipulation)


author: Holderman, J.

text:
    (No. 84-CC-1825
    Kelly Thornburg, Claimant, v. The State of Illinois and Board of Regents for Northern Illinois University, Respondents.

      Opinion filed December 22, 1986.

    Heyl, Royster, Voelker & Allen (Daniel R. Simmons, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Claire E. B. Gibson, Assistant Attorney General, of counsel), for Respondents.
   Holderman, J.

This claim involves a slip and fall case arising out of an incident which occurred in the Holmes Student Center at Northern Illinois University, DeKalb, Illinois, on January 22, 1983, when a student employed by the University fell and injured herself on a stairway in the entrance of the building which was wet because of heavy snow conditions on the exterior of the building premises.

The Commissioner’s report, together with the parties’ briefs, set out the facts in detail.

There was a substantial dispute as to whether the condition of the stairway and entryway was as testified by Claimant, Kelly Thornburg, and her witnesses, or was in the condition testified to by the University employees. Claimant alleged the entry way was overlaid by a carpeting which was saturated with water and that the water trailed off down a terrazzo floor and stairway area. The University employees testified there was not a wet condition as described by Claimant. The Commissioner found the condition of the entrance and stairs to be as testified by Claimant.

The parties agreed as to the exterior weather conditions based on University weather data. The University maintenance department testified as to the procedure in cleaning and drying areas subject to inclement weather conditions. There was detailed testimony as to the scheduling and the methods involved.

The legal questions involved in this matter are undisputed, that is, what duty does a landowner have to a business invitee to care for his safety in the factual situation presented. A review of the authorities cited by both sides indicates that a landowner has an obligation to use reasonable care and caution to keep his premises reasonably safe for the use by a business invitee. However, he is not an insurer of the safety of his invitees and such persons assume normal, obvious or ordinary risks attendant to the use of premises.

Claimant cites two cases, Hamby v. State, 31 Ill. Ct. Cl. 487 and Pavlik v. State, 31 Ill. Ct. Cl. 469, in which both Claimants recovered on a slip and fall fact situation. Respondent, on the other hand, cites three cases noted in the Commissioner’s report, Duble v. State, 26 Ill. Ct. Cl. 87, Fleischer v. State (1983), 35 Ill. Ct. Cl. 799, and Ponds v. State, 33 Ill. Ct. Cl. 79, in which recovery was denied. In all of the foregoing cases, the Court’s decision was based on various interpretations as to (a) whether the Respondent recognized its obligation to business invitees, or (b) whether Respondent had exercised a reasonable degree of care in remedying a condition for the safety of its invitees. In both Hamby and Pavlik, the Court found that Respondent had not exercised a reasonable degree of care as required. In Pavlik, the factual dispute revolved around a highly polished terrazzo floor which became even more slippery when wet. There was no indication there was any evidence that the State had taken any steps to acknowledge or remedy this slippery condition. In Hamby, on the other hand, the Court commented that the State completely failed to explain why it had not remedied the condition in question, commenting:

“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 occurrence. 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 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.” Hamby v. State, 33 Ill. Ct. Cl. 489.

In the three cases noted by the Commissioner in his report, it is clear that Respondent recognized its obligation with regard to conditions and the danger for business invitees and had taken steps to remedy them. Similarly, in the case before the Court, it is clear that the University recognized its obligation to its invitees with regard to the wet condition of the entrance foyer and stairs. The precise issue in this case then becomes, whether the steps taken by the University were reasonable and at what point a requirement of further action by the University becomes overburdensome and makes it an insurer of the safety of its business invitees. Considering the Commissioner’s factual findings, the sheer size and extent of the University property, and the testimony of the maintenance personnel, it seems unreasonable to require further action by the University to remedy the condition of the entrance. The maintenance program recited by the University’s witnesses clearly indicates that it recognized its obligations and took reasonable steps to fulfill them. Short of stationing a maintenance person at every door of every building, it is difficult to see how a loss such as the one claimed in this case could be prevented. Such an extreme requirement would make the University an insurer of Claimant’s safety.

It is the opinion of this Court that the University did everything that was reasonably necessary to safeguard the public in the use of its premises, and that to make a contrary finding would change the law of the State of Illinois relative to the duties of Claimant and its responsibility.

Claim is denied.


author: Raucci, J.

text:
    (No. 84-CC-1895
    John Duffy, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 6, 1986.

    Daniel Lampitt, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

On January 30, 1984, Claimant, John Duffy, filed this claim for $48,756.00 for back pay which had been refused by the Illinois Bureau of Employment Security on the grounds that the funds appropriated for the payment had lapsed. A hearing was held before the assigned Commissioner on February 20,1985. The State called no witnesses and filed no brief after advising the Court on July 22,1985, that no brief would be filed.

At the hearing, the State stipulated that the only issues before the Court were the amount owed to the Claimant and did Claimant sufficiently mitigate his damages. The departmental report indicated the claim was a result of unlawful discrimination determined pursuant to the Human Relations Commission or Department of Human Rights. The report also indicated that during the period covered by the claim, Claimant would have earned $48,756.00 and that sufficient funds were available for transfer under the 2% transferability provision to cover this and all related claims.

The issues before the Court then are what exact amount is due the Claimant and did Claimant sufficiently mitigate his damages during the period in which he was not employed by Respondent. The period involved is from April 1,1980, until June 30,1983.

Rita Bartholomew testified for the Claimant that she was Placement Director for the University of Illinois, Graduate School of Library and Information Service. The Claimant had used the placement services over 30 times in sending out his credentials. However, most of the use was prior to April 1, 1980, and after June 30, 1983. The Claimant did make at least as much or more effort to seek employment through her services than others would.

Judy Cadle testified for Claimant that she was president of a typing service. Commencing in March of 1980 through November of 1983, her service typed about 200 employment seeking letters for Claimant.

The Claimant testified that he had received all back pay due from July 1, 1983, until he actually started working on November 16,1983. He had also received all credit for all vacation and personal leave days from April 1, 1980, until November 16, 1983. He is a college graduate. After being turned down for a job with the State, he filed his complaint with the Human Rights Commission. He received a favorable decision in March of 1983. During the time he was awaiting a decision, he was looking for a job. His job search consisted mainly of looking for positions in the field of library science. He went to the placement office once a week, sent letters and used other sources to look for a job. He used the facilities of the University of Georgia, the University of Florida and professional journals to seek employment. He also applied for positions with the State of Illinois. He received a few interviews but no job. Claimant had had other jobs in the past. He had worked for the State and for a private employment service. Claimant is disabled, has cerebral palsy and is confined to a wheelchair.

During the period in question, Claimant did take independent study, zero credit courses and some social work courses. He was actively seeking employment from April 1,1980, through June 30 of 1983.

In cross-examination, Claimant testified he worked for about a year on a research paper, however, he mainly worked on this in the evening. Claimant has poor control of his hands so he cannot do assembly type work. He received no unemployment compensation and had no employment or self-employment income during the relevant period.

We find that the Claimant made sufficient efforts to mitigate under the circumstances and hereby grant him an award of $48,756.00 plus appropriate employer contributions and less appropriate employee deductions as more fully set forth in Appendix A attached hereto and incorporated herein.

APPENDIX A Identification of the State Contributions and Deductions from Back Salary Award. To the State Employees’ Retirement System: Employee’s contribution to State Employees’ Retirement System 1,950.24 Employee’s contribution to FICA 3,206.93 State’s contribution to State Employees’ Retirement System 2,886.00 State’s contribution to FICA 3,206.93 To Illinois State Treasurer to be remitted to Internal Revenue Service: Claimant’s Federal income tax 9,751.20 To Illinois Department: Claimant’s Illinois income tax 1,218.90 To the Claimant: Net salary 32,628.73 Total Award $54,848.93


text:
    (No. 84-CC-1928
    Keith Gavin, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 4, 1986.

    Keith Gavin, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This claim arises from personal injuries suffered by Claimant while he was an inmate at Menard Correctional Center.

The Claimant, Keith Gavin, was an inmate at the Menard Correctional Center on August 15,1983. He was assigned to the M & M Shop at the facility. He was working as a porter, cleaning up, mopping and sweeping. As he was sweeping up around a stack of 2 x 4’s, there was some water on the floor and the Claimant slipped and fell and cut his left arm midway between the left elbow and the left wrist. Claimant had seen the water on the floor but thought he could sweep around it and apparently stepped in the water and slipped. He was aware of the presence of the water on the floor.

Claimant did not testify that he was unfamiliar with the area where he was working.

The record clearly indicates that Claimant, in failing to take care in his movements around water that he knew was on the floor, was not acting with due care for his own safety, and his lack of care was the proximate cause of accident.

The Court has held that, where an inmate’s lack of care appears to be the proximate cause of the accident, there can be no recovery. In Robinson v. State (1984), 36 Ill. Ct. Cl. 298, Claimant was injured while cleaning a garage on institutional premises at Joliet Correctional Center. In moving a cabinet, a piece of equipment fell off the cabinet and hit Claimant on the head thereby causing a painful injury. In that case, the Court observed that the Claimant was familiar with the area and failed to verify the location of the equipment before moving the cabinet and in so doing was not acting with due care for his own safety. The claim was denied.

Similarly, in the case at bar, Claimant acknowledged his being aware of the water on the floor in the area where he was cleaning up but failed to take any precautions to avoid standing or walking in the water so that he was caused to slip and fall.

It is therefore ordered that this claim is dismissed with prejudice.


text:
    (No. 84-CC-2100
    Illinois Constructors Corp., Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 21, 1987.

    O’Brien, O’Rourke, Hogan & McNulty, for Claimant.
    Neil F. Hartigan, Attorney General (Erin O’Connell, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause coming before the Court on a stipulation for entry of judgment submitted by the parties. This is a breach of contract claim arising out of the construction of the South Waukegan Harbor Project (“the Project”) CDB Project No. 722-010-001.

Claimant was the Phase II contractor. Because the phases were sequential, Claimant could not commence its Phase II work until Phase I was completed.

On October 7, 1982, Claimant received authorization from CDB to proceed with Phase II contract work at the project. Claimant could not commence its work until December 6, 1982. The delay occasioned by the tardy completion of Phase I resulted in increased costs to Claimant. Claimant has alleged that it suffered in the amount of $119,000.00 associated with its increased cost of performing its work under the contract.

After extensive review of Claimant’s supporting records by representatives of CDB and following lengthy negotiations between the parties, CDB has stipulated and agreed that Claimant was prevented from proceeding with its work on a timely basis and for purposes of this claim only, admits liability under the complaint.

Because of the time and expense of trial and the vagaries of proof associated with this type of claim, the parties have stipulated and agreed that judgment should be entered in Claimant’s favor in the amount of $90,000.00.

Although this Court is not bound by any stipulation, it is not the practice of this Court to interpose controversy between the parties where none seems to exist. The instant stipulation appears to have been entered into after careful consideration of facts and applicable law by authorized representatives of the parties regarding delay damage claims under State construction contracts. The amount agreed upon seems to have resulted from the give and take associated with arms-length bargaining. This being the case, this Court sees no reason not to honor the stipulation of the parties.

It is hereby ordered that Claimant, Illinois Constructors Corporation, be awarded the sum of $90,000 (ninety thousand and no/100 dollars) in full and complete satisfaction of all its claims herein.


author: Patchett, J.

text:
    (No. 84-CC-2607
    Arsenio L. Canlas, M.D., Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 28, 1987.

    Arsenio L. Canlas, M.D., pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause is before the Court on Respondent’s motion to dismiss the captioned claim. Claimant having been given due notice, and the Court being fully advised in the premises, finds as follows:

Claimant Canias, a St. Louis, Missouri, physician, is here seeking a vendor payment, as provided in section 11 — 13 of the Illinois Public Aid Code (PAC) (Ill. Rev. Stat., ch. 23, par. 11 — 13), from funds appropriated to the Illinois Department of Public Aid (IDPA) for medical services provided to IDPA’s “recipients,” as defined in section 2 — 9 of the PAC. The subject of Dr. Canias’ claim is services provided to his patient, Lana McReynolds, during August 1980. His Court action was filed in March 1984.

In its Department report, the contents of which are prima facie evidence under rule 14 of the rules of this Court, IDPA advises that there are certain requirements which all medical vendors must meet, in order to be eligible to receive a vendor payment (defined in section 2 — 5 of the PAC) for their services. These requirements include the following:

(a) The vendor must have been enrolled as a participant in IDPA’s Medical Assistance Program (MAP) at the time when the subject services were rendered. (IDPA Rules 140.11 through 140.19, 89 Ill. Admin. Code §§140.11 through 140.19)
(b) The vendor’s patient must have been a “recipient”, and eligible to receive such services at the Respondent State’s expense as determined by IDPA in accordance with applicable statutory requirements, as of the dates on which the services were rendered. See prior decisions of this Court, cited below in this Opinion.
(c) The services must have been “covered services”, eligible for payment in accordance with the requirements of IDPA’s MAP program. (See, e.g., IDPA Rules 140.3, 140.5, 140.6, 140.7 and 140.9; 89 Ill. Admin. Code §§140.3,140.5,140.6,140.7 and 140.9)
(d) In certain situations, IDPA staff’s “prior approval” must have been obtained, for particular services, before the services are provided to the patient by the vendor. (See, e.g., subsec. c of IDPA Rule 140.2; and IDPA Rules 140.40 thru 140.42, Id.)
(e) The vendor must have invoiced his services to the department, on IDPA invoice-forms which have been properly prepared by the vendor and timely submitted to IDPA, in accordance with department Handbook instructions and regulatory requirements (IDPA Rule 140.20, Id.)

The department advises that each of these requirements is explained in its provider (vendor) Handbooks, which are furnished, upon enrollment, to each participating vendor.

According to the Department’s investigation, this claim is deficient in several respects, as compared with the above requirements. First, Respondent’s initial challenge concerns the complaint’s alleged failure to state a cause of action. The complaint alleges that Claimant’s payment demand for patient McReynolds’ services was refused solely due to lapse of appropriated funds. Its exhibits clearly indicate that the subject of this lawsuit is medical services, and that Claimant is presenting a “vendor payment” claim, as defined in Sections 2 — 5 and 11 — 13 of the PAC. Section 25 of “AN ACT in relation to State finance (Ill. Rev. Stat., ch. 127, par. 161), authorizes IDPA’s payment of such claims “without regard to the fact that the medical services being compensated for by such payment may have been rendered in a prior fiscal year,” i.e., payments from the Department’s medical payment fund are not denied by reason of lapsed appropriation. The complaint here is thus contradicted by section 25. As a result, Claimant’s allegations misstate Illinois statutory law and, for that reason, fail to state a cause of action. See this Court’s decisions in Midstate Anesthesiologists v. State, No. 82-CC-942, filed March 1, 1982; Barnes Hospital v. State, No. 82-CC-708 et seq., filed March 1, 1982; and Rock Island Franciscan Hospital v. State, No. 82-CC-899, filed May 5, 1982; Henrotin Hospital v. State, No. 84-CC-3315, filed August 29, 1984 (representing 67 Henrotin Hospital claims dismissed on that date); St. Anne’s Hospital v. State, No. 84-CC-3063, filed August 29,1984 (representing 118 St. Anne’s Hospital claims dismissed on that date); Franciscan Medical Center v. State, No. 84-CC-2655, filed August 29, 1984 (representing 4 Franciscan claims dismissed on that date); and St. Elizabeth Hospital v. State, No. 86-CC-1802, filed June 20, 1986.

Second, IDPA reports it finds no record that Dr. Canias was an enrolled participant in its Medical Assistance Program (MAP), in 1980. In this regard, IDPA advises that many physicians, hospitals and other vendors, located in neighboring states, are enrolled participants; however, Claimant was not among them. To be authorized to receive payment for services to IDPA recipients, a person must first apply to IDPA for enrollment in the Department’s MAP program. Until he or she is enrolled, the person cannot be a “vendor”, and thus is not entitled to such payment. See subsection d of IDPA Rule 140.13.

Third, Claimant has supplied no evidence that IDPA had determined his patient, Mrs. McReynolds, to be an eligible MAP recipient, with respect to the dates on which the subject services were rendered. As the Department’s records indicate that she was not MAP-eligible on these dates of service, Respondent has no liability for payment of this claim for such services. See this Court’s decisions in Illini Hospital v. State (1977), 32 Ill. Ct. Cl. 115; Rock Island Franciscan Hospital v. State, No. 79-CC-91, filed November 23, 1981; and Columbus, Cuneo, Cabrini Medical Center v. State, Nos. 84-CC-401 and 84-CC-734, filed March 7, 1985.

Fourth, Claimant offers no exhibit suggesting that he had ever invoiced his services to IDPA, on the forms prescribed by IDPA regulation (89 Ill. Admin. Code, §140.20), or within the time prescribed by that regulation. Appropriate invoice-forms for billing such services, and IDPA medical vendor Handbook provisions explaining the MAP’s requirements and providing invoice preparation instructions, would have been available to Dr. Canias, if he had been a MAP enrolled vendor. Completion of the prescribed invoice forms, and their submission to IDPA prior to the prescribed deadline, are conditions which the enrolled vendor must meet in order to comply with the regulation, and thus to be eligible for vendor payment consideration. Weissman v. State (1978), 32 Ill. Ct. Cl. 150; Rush Anesthesiology Group v. State (1983), No. 82-CC-1580; and see this Court’s March 1, 1982, order in Barnes Hospital v. State, No. 82-CC-708 et seq.

A vendor’s entitlement to a “vendor payment,” enforceable under section 11 — 13 of the Illinois Public Aid Code and under sections 439.8 and 439.22 of the Court of Claims Act, may be “limited by regulations of the Illinois Department” (Ill. Rev. Stat., ch. 23, par. 11— 13). Each of the regulatory requirements discussed above imposes a condition which the vendor must meet, if he is to receive a vendor payment for specified services to a named patient. In this instance, Claimant has failed to demonstrate that he has met such conditions.

It is therefore hereby ordered that the subject claim be, and it is hereby dismissed.


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

text:
    (No. 84-CC-2736
    OK Electric Co., Claimant, v. The State of Illinois, Respondent.

      Order on motion for summary judgment filed September 7, 1984.

      Order on motion for summary judgment filed October 18, 1985.

      Stipulation filed May 14, 1986.

      Order on stipulation filed July 1, 1986.

    OK Electric Company, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION FOR SUMMARY JUDGMENT

Roe, C.J.

This cause comes on to be heard on the Respondent’s motion for summary judgment, due notice having been given, and the Court being fully advised in the premises;

The Claimant filed this claim as a lapsed appropriation claim and has based it on “AN ACT to require prompt payments by the State of Illinois for goods or services” (Ill. Rev. Stat. 1981, ch. 127, par. 132.401 et seq.). Claimant seeks payments of interest which accrued on a bill for electrical work done for the Illinois Department of Transportation. This claim is for interest on $1,770.00.

Claimant previously filed, on November 15,1983, a $1,770.00 claim with this Court for payment of the bill which the Department of Transportation was no longer able to pay due to the lapsing of the appropriation. An award was made in that case, No. 84-CC-1107, on March 14,1984.

The Respondent agrees that the Claimant is due IS per month of its total outstanding bill of $1,770.00 for the period beginning September 15, 1983, which is 60 days after the Claimant billed the Department of Transportation, and ending November 14, 1983, which is the date the Claimant filed for payment of the bill in the Court of Claims. It is the Respondent’s position that the aforementioned Act does not authorize interest on matters pending before this Court.

Although there are no genuine issues of material fact we do find, as a matter of law, that Claimant is not entitled to a partial award of $53.10, the amount stated by the Respondent. We agree with Respondent that the aforementioned Act does not authorize interest on matters pending in this Court. Further, we do not think that the legislature intended that vendors be able to take advantage of the Act by delaying the filing of their claim. The clear purpose of the Act is to encourage prompt payments for goods and services. The agency’s ability to pay expired at the end of the 90-day period following the end of the fiscal year. There was nothing it could do after that point in time to pay its bill. If the parties’ position is accepted, a Claimant could then wait almost five years, the limitations period for filing a claim based on breach of contract, before filing a claim, accruing 12% per annum, and obtaining a windfall profit. Claimant’s damages would be limited to the period from September 15,1983, which is 60 days after the Claimant billed the Department of Transportation, through September 30,1983, after which date the agency was no longer empowered to voucher the payment.

Moreover, this claim is premature. Claimant filed this claim as one for lapsed appropriations. The obligation occurred during fiscal year 1984 and the agency is still capable of paying its obligations accrued during that fiscal year.

We will hold this claim in abeyance until after September 30, 1984, rather than dismiss it as premature with leave to refile. So ordered.

ORDER ON MOTION FOR SUMMARY JUDGMENT

Patchett, J.

This cause comes on to be heard on the Respondent’s motion for summary judgment, which motion was held in abeyance pursuant to our order of September 7, 1984, it appearing that due notice has been given, and the Court being fully advised;

This claim was held in abeyance pursuant to the aforesaid order to allow the Respondent’s agency an opportunity to act on it. Nearly a year has passed and the Court has not been advised of any further action. There is a genuine issue of material fact as to whether or not the agency has acted on this claim. Accordingly, the Respondent’s motion is hereby denied.

STIPULATION

This is a lapsed appropriation claim. The State agrees to an entry of an award based on the report filed in this matter which provides the following information:

AGENCY: Department of Transportation

PURPOSE: Request for late payment penalty charge.

FUND NO.: 011-49410-1200-0000 Fiscal Year: 1983 Amount: $8.85

CLAIMANT’S SOCIAL SECURITY or TAX NO.: 36-2955988

Sufficient funds lapsed to cover this claim.

ORDER ON STIPULATION

Patchett, J.

The record in this cause indicates that this is a standard lapsed appropriation claim which should be paid in accordance with the above stipulation. It is so ordered.


text:
    (Nos. 84-CC-3046, 85-CC-2758 not cons.
    DePaul University and University of Illinois, Claimants, v. The State of Illinois, Respondent.

      Order filed May 6, 1987.

    Mitchell, Russell & Kelly, for Claimant DePaul University.
    Norman Jeddeloh, for Claimant University of Illinois.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

These two Claimants brought these claims seeking tuition payments for various students. In their standard “lapsed appropriation” form complaint they alleged that they demanded payment from the Illinois State Scholarship Commission (hereinafter IS SC) but that their demands were refused on the grounds that the funds appropriated for the payments have lapsed. Both claims are against fiscal year 1983 funds.

The Respondent moved to dismiss on the grounds that an insufficient amount of funds lapsed in the FY83 line item appropriation to cover the amount of these claims. In its motion filed in the University of Illinois case, Respondent adds that the ISSC was unable to pay that claim during the fiscal year because the appropriation was reduced by the Governor as authorized by the Emergency Budget Act (P.A. 82-1038 approved December, 1982).

Claimant University of Illinois did not respond to the motion to dismiss. Claimant DePaul University did respond. In its response, DePaul University argues that payment of the tuition is within the “expressly required by law” exception to the general rule that this Court will not make an award in lapsed appropriation claims when insufficient funds have lapsed. In support of its position, Claimant cited the language of the Higher Education Student Assistance Law (Ill. Rev. Stat. 1983, ch. 122, par. 30 — 15 et seq.), which was enacted to provide a “system of financial assistance of scholarships, grants, and guaranteed loans for qualified institutions of their choice in the state, public or private.” Claimant also cited language at par. 30 — 15.8(a) that the institution “. . . shall be entitled to the payments of tuition and other necessary fees provided by the scholarship or grant. ...” Further, Claimant pointed out that the law also allowed qualified institutions such as DePaul the right to an advance payment up to 75% of the awards to such institution’s students prior to providing the students with the education for which the awards were made. In event that the institution does not provide the requisite educational services, the advance payment must be refunded. (Ill. Rev. Stat., ch. 122, par. 30 — 15.9(b).) In this case, Claimant stated it has fulfilled its contractual obligation of providing certain educational services to students qualified by the ISSC and is entitled to the compensation expressly provided by statute. If the Respondent’s motion to dismiss is granted, Claimant argues, “it would not only penalize DePaul for its failure to request advance payment of awards, but would also frustrate the purpose of the specific statute authorizing the awards and would be contrary to the specific language thereof.”

We fully understand the Claimant’s position and are not unsympathetic. However, we are constrained to abide by the Emergency Rudget Act and must deny the claim. County of St. Clair v. State (1984), 37 Ill. Ct. Cl. 297.

It is hereby ordered that these claims be, and hereby are, denied.


text:
    (Nos. 85-CC-0545, 85-CC-0554, 85-CC-0558, 85-CC-0586, 85-CC-0715, 85-CC-0794, 85-CC-1151, 85-CC-1295, 85-CC-1442, 85-CC-1637, 85-CC-1642, 85-CC-1711, 85-CC-1894, 86-CC-1148, 87-CC-1141 cons.
    Roosevelt University et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 20, 1987.

   Montana, C.J.

These Claimants each brought claims seeking tuition payments either for themselves or their students. Each filed a standard “lapsed appropriation” form complaint alleging that demand for payment was made to the Respondent’s Illinois State Scholarship Commission (hereinafter referred to as the ISSC), but the demand was refused on the grounds that the funds appropriated for the payments had lapsed. All of these claims are against fiscal year 1984 appropriations. The Respondent filed departmental reports compiled by the ISSC in each case.

The Board of Trustees of Community College District 508 filed claim number 85-CC-0794 on November 1, 1984, and it seeks $223.50. The reasons stated in the departmental report as why the Claimant was not paid was due to an incorrect disqualification of a student in connection with a defaulted loan.

The Board of Trustees of Southern Illinois Uni versity filed its claim on December 4, 1984, and it seeks $23,937.13. The departmental report filed in this case does not indicate why this claim was not paid.

The Board of Trustees of Community College District 508 filed its second claim on December 17,1984. The reason for nonpayment stated by ISSC in the departmental report filed in this claim is that the school did not request payment before the appropriation lapsed.

Claimant Donna Enders filed her claim on December 31, 1984, and she seeks $225.00. In response to the question, “What is the dollar amount of the claim still unpaid, and why is it still unpaid?,” the departmental report stated as follows:

“225.00 students award increased to $345.00 per term, not until after we had paid $120.00 approved for 2nd sem., 1984” (sic)

We are unsure what that means.

Cara Bocian filed her claim on January 21,1985, and she seeks $2,200.00. Her nonpayment was said to be due to an incorrect social security number problem and she did not appear on a roster for which the school could ask for payment.

Javier D. Brathwaite also filed his claim on January 21, 1985. He seeks $190.00. The departmental report indicated that his school previously requested half-time payment but now he wants a full-time award.

Jacqueline Thomas filed her claim on January 28, 1985, and she seeks $382.04. Attached to her complaint is a letter from the University of Illinois at Chicago Circle stating that she could not obtain a certified transcript because she owed this money. The ISSC report indicates that the school did not request payment from the ISSC until after the money lapsed.

DePaul University filed its claim on February 14, 1985, and it seeks $12,258.61. The ISSC stated that it, too, had submitted its claim after the appropriation lapsed and only $11,525.28 of the claim would have been approved for payment.

Emanuel Martinez filed his claim on November 21, 1985, and he seeks $1,022.00. The ISSC stated that his school did not request payment. There was no comment made as to whether this claim would have been paid had it been presented before the appropriation lapsed.

The Board of Trustees of Community College District 508 brought a third claim on December 2,1986, seeking $286.00. The ISSC stated that the school had not requested payment previously.

The Respondent moved to dismiss each claim on the grounds that an insufficient amount of funds lapsed in the line item appropriation to cover the amount of these claims, with the exception of the last Board of Trustees of Community College District 508 in which for no apparent reason the Respondent agreed to our making a full award. The motions were based on information contained in departmental reports which were compiled by the ISSC and offered as prima facie evidence of the facts contained therein pursuant to rule 14 of the Rules of the Court of Claims. Actually, $2,100.20 was said to have lapsed but previous claims had exhausted the balance. Interestingly, the ISSC stated that had the requests for payment been presented before the appropriation lapsed it would have paid six of the claims and not paid only one due to lack of funds.

Some of the Claimants filed objections to the motions to dismiss arguing that their claims fell within the “expressly required by law” exception. Appropriating money for scholarship awards programs is a legislative prerogative and not a function of the Court of Claims. The Court of Claims has dealt with the issues involved in these claims before. In Aurora College v. State (1985), 37 Ill. Ct. Cl. 321, 323, the Court stated:

“It is a long-standing fundamental rule of law in this Court that, barring certain extremely narrow exceptions not applicable here, an award cannot be made in a lapsed appropriation claim where no funds lapsed. Where an insufficient amount of funds lapsed, an award is made of the balance remaining only. It is not an infrequent situation that, as with the claims at bar, numerous claims are filed against a lapsed balance insufficient to cover all the claims. When this happens and the Court has actual knowledge of it, it has been our policy to make awards to the earliest filing Claimants until the lapsed balance has been exhausted. We have considered alternatives and have decided that, while this policy is not free from criticism, the alternatives are too impractical, unworkable, or too unfair.”

The Board of Trustees of Southern Illinois University raised a different objection. It presented evidence that the ISSC had received $39,551.25 in refunds of certain fiscal year 1984 Monetary Award Program Grants (the appropriation involved in these claims) and asserted that the Court should look to this refund money in determining the issue of sufficiency of lapsed funds. The Respondent then moved for leave to withdraw its motion to dismiss and tendered a stipulation agreeing to our making an award in that one case.

We agree with the proposition that this refund money should be considered and we will do so. However, the Court has actual knowledge of several Claimants in line ahead of the Board of Trustees of Southern Illinois University. The Claimants in Aurora College v. State, supra, all sought money from the same line item appropriation from fiscal year 1984 as the Claimants herein do and their claims were filed earlier. All of those claims were previously denied except for that of Roosevelt University, No. 85-CC-0545 which was partially paid. Accordingly, on our own motion, we are reopening those claims and granting awards in the following amounts:

Claimant Number Award Balance
$39,551.25
Roosevelt University 85-CC-0545 $ 595.80 38,955.45
Governors State Univ. 85-CC-0554 473.00 38,482.45
Comm. College Dist. 508 85-CC-0558 13,066.00 25,416.45
St. Francis College 85-CC-0586 1,525.00 23,891.45
Aurora College 85-CC-0715 733.00 23,158.45

Next, we grant awards in the stated amounts in the following cases herein:

Community College
District 508 85-CC-0794 $ 223.50 $22,934.95
Southern Illinois University 85-CC-1151 22,934.95 _

For the reasons stated above we hereby deny the balance of claim number 85-CC-1151 and the later claims involved herein. The ISSC is however ordered to re-examine its records to determine if any more refunds of funds from the FY84 001-69131-4475-0100 line item appropriation have been received. If so, it is to contact counsel for the Respondent who is to notify the Court and we will reconsider those claims which are denied.


text:
    (No. 85-CC-0974
    Rosetta Wheadon, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 3, 1986.

    Edward L. Welch, for Claimant.
    Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This cause comes before the Court on the parties’ joint stipulation settlement which states:

This cause is a contract claim. The claim arises from the termination of the Claimant’s employment with the Respondent. Claimant was the President of the State Community College of East St. Louis, which is owned and operated by the Respondent, State of Illinois. Claimant entered into negotiations for an agreement with the Trustees of the State Community College of East St. Louis, wherein the Claimant was to terminate her employment before the end of the contractual period, in exchange for a certain sum of money. The exact amount of money was never finally agreed upon by all the parties, but the Claimant did voluntarily terminate her employment.

The parties have investigated this claim, and have knowledge of the facts and law applicable to the claim, and are desirous of settling this claim in the interest of peace and economy.

Both parties agree that an award of $63,900.90 is both fair and reasonable.

Claimant agrees to accept, and Respondent agrees to pay Claimant $63,900.90 in full and final satisfaction of this claim and any other claims against Respondent arising from the events which gave rise to this claim.

The parties hereby agree to waive hearing the taking of evidence, and the submission of briefs.

This Court is not bound by such an agreement but it is also not desirous of creating or prolonging a controversy between parties who wish to settle and end their dispute. Where, as in the instant claim, the agreement appears to have been entered into with full knowledge of the facts and law and is for a just and reasonable amount, we have no reason to question or deny the suggested award.

It is hereby ordered that the Claimant be awarded $63,900.90, in full and final satisfaction of this claim.


text:
    (No. 85-CC-2398
    Sam Cotton, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 4, 1986.

    Sam Cotton, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Claire E. B. Gibson, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a claim brought by Sam Cotton, an inmate at the Centraba Correctional Center, to recover for personal injuries.

On February 1, 1985, when the Claimant, age 22, was an inmate at the Joliet Correctional Center, the Claimant fell while attending the supper meal at the gallery or mess hall. After walking into the dining room with his tray of food, Claimant set the tray down and went to get kool-aid beverage. After obtaining the koolaid, Claimant started back to his seat, where his tray of food was located, and fell allegedly injuring his right foot. Inmates obtained their beverages from two containers sitting on table tops, where inmates served kool-aid. Inmates carry their beverage container to the kool-aid station, place their container under a spigot and inmates push a button filling the container. On the date of Claimant’s injury nothing unusual was being done.

Claimant states that he was caused to fall by the slippery condition of the floor because “a lot of kool-aid was on the floor.”

Claimant had noticed beverage spilled on the floor in the area of the kool-aid stand on previous occasions.

Claimant testified that the same foot had been injured earlier when he was in the Cook County Jail playing basketball. Claimant testified that, after the earlier injury at the Cook County Jail, the foot healed properly and Claimant had “no problems.” Claimant testified he was unable to run and walk without discomfort after the first injury. Claimant testified the bone healed properly on that occasion. Claimant testified he didn’t know whether the bone broken in the incident complained of was the same one broken at the Cook County incident. Claimant testified he couldn’t tell whether it felt like the same bone or not. After being injured at Joliet, he was taken to Silver Cross Hospital where a cast was put on his foot. It was a walking cast and because of snow and wet conditions the cast got wet and had to be taken off sooner than anticipated. Claimant testified that he told officers that a bone in his foot was sticking out. Correctional officers X-rayed his foot, wrapped it in an ace bandage, and sent him to Centralia Correctional Center. Claimant stated he felt that the cast came off too soon because his foot was still bothering him.

Claimant testified he did not know how the kool-aid got on the floor, but he could see that the floor was wet. Claimant stated, “I ... I seen the kool-aid on the floor, where I was getting my kool-aid.” Claimant testified that he saw the kool-aid before he fell.

Claimant also complained that he was having back problems subsequent to his fall on February 1,1985, and the doctors advised him he was suffering from a back sprain. Claimant testified that the back condition was getting a little better.

With respect to the Claimant’s foot, Claimant testified that his foot hurt all of the time and that there was a lump on his foot that protruded visibly that was caused by the February 1,1985, accident.

On cross-examination by Respondent, Claimant again testified that he had no bone protruding from the side of his foot after the Cook County Jail injury.

Respondent introduced medical records from Joliet Correctional Center in evidence, which included an Illinois Department of Corrections “medical history form” purporting to be dated January 25, 1985, bearing the following notation:

“Right foot — had cast 1984 — bone protrudes.”

Also, on certain “medical progress notes” bearing a date of January 30,1985, the following notation appears:

“I hurt my right foot last August — they took cast off in September and it still hurts all of the time — deformity outer aspect, right foot.”

The medical progress notes referred to above are followed by medical progress notes noting the incident of February 1, 1985, about which Claimant complains in the present case.

The Court of Claims Act provides in pertinent part as follows:

“sec. 14 — whenever any fraud against the State of Illinois is practiced or attempted by any Claimant in the proof, statement, establishment or allowance of any claim or any part of any claim, the claim or part thereof shall be forever barred from prosecution in the Court.”

Respondent argues that undisputed medical records made immediately before the accident and injury of which the Claimant now complains establish that Claimant did indeed have a lump protruding from his right foot about which he had complaints immediately prior to the incident now complained of. This evidence, properly before the Commissioner, can leave little doubt that the Claimant did indeed by his testimony attempt fraud against Respondent in connection with this claim.

It is therefore ordered that this claim is dismissed and in accordance with Illinois Revised Statutes (1985), ch. 37, sec. 439.14, Claimant’s claim be forever barred from prosecution in this Court.


text:
    (No. 85-CC-2452
    George Haynes III, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 4, 1986.

    George Haynes III, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant, an inmate of an Illinois penal institution, has brought this action seeking compensation for the value of two gold neck chains, a medallion and one pair of boots. Claimant’s complaint alleges that, at the time of his transfer from segregation to orientation on May 29, 1984, his property was taken into the exclusive possession or control of an unknown officer, agent or employee of the Respondent and the Claimant’s demands to have his property returned have been refused.

As a preliminary matter, it must be noted that this cause was originally assigned to Commissioner Simpson on May 13, 1985, and was later assigned to Commissioner Rath. On June 26, 1985, Respondent filed a motion for general continuance while this file was pending before Commissioner Simpson, alleging that the Claimant failed to appear before the Administrative Review Board (ARB) and had not exhausted his administrative remedies. Attached to the motion was a copy of a letter from Mark A. Varner of the Illinois Department of Corrections to the Honorable Neil Hartigan dated June 7,1985, purporting to set forth that the Claimant was scheduled to appear before the ARB on February 20,1985, but “refused” to go before the ARB to be heard.

Apparently as a result of that motion and letter attached thereto, Commissioner Simpson entered an order continuing the cause, which was filed August 8, 1985, reciting that “at this point there is no way for the Commissioner to determine the truth” of whether the Claimant had refused to appear before the ARB or not. Commissioner Simpson ordered that the cause be continued to November 10,1985, in order that Claimant could obtain a hearing before the ARB and that the Claimant should notify the Court of the status of the ARB hearing on or before November 10, 1985. On August 19, 1985, this cause was referred to Commissioner Rath and was set for hearing December 2,1985.

At the hearing, Respondent objected to proceeding with the hearing on the ground that Claimant had not exhausted his administrative remedies. Due to the fact that Claimant was present and had been placed under oath, the Commissioner interrogated the Claimant as to the allegation in Mr. Varner’s letter, upon which Commissioner Simpson apparently relies, that he had “refused” to appear before the ARB. Claimant denied any refusal to appear before the ARB and affirmatively stated that at no time had he received a pass to appear before the ARB and that, of course, he did not have freedom of movement within the institution so that he could at his whim go from place to place in response to administrative hearing settings or for any other purpose within the institution. Respondent acknowledged that Mark Varner, the author of the letter upon which Commissioner Simpson apparently relied, did not have personal knowledge of whether or not the Claimant had been given the opportunity to appear before the ARB. Further, Respondent acknowledged that, in fact, Claimant had filed a grievance and had attempted to pursue administrative remedies.

In Respondent’s brief, Respondent persists in arguing that Varner’s letter, in and of itself and standing alone, is sufficient cause to deny Claimant a hearing in this case. We do not agree. Varner’s letter, admitted by Respondent to be based on hearsay, that Claimant “refused” to attend an ARB hearing when weighed in the face of Claimant’s direct and uncontradicted testimony that he filed his claim and was never given a pass to attend the hearing, or any hearing thereon, does not deprive Claimant of his right to be heard.

Therefore, Respondent’s objection to the hearing and motion for dismissal for want of prosecution is denied.

On the merits of this cause, Claimant testified that on May 29, 1984, Claimant was transferred out of the segregation unit to the orientation unit as a result of a shakedown. The property Claimant grieves as lost was in his cell at the time. When Claimant’s property was brought to him in a “garbage bag” it was not accompanied by an inventory slip, sealed in any proper transfer container, and both gold chains, medallions and combat boots were missing. Claimant went into some detail attempting to show that procedures prescribed by administrative regulations regarding the transfer of inmates’ property were not followed by Respondent.

Claimant contends that he wore his chains into the institution, and he was not required to have personal property permits for the chains. Claimant testified that his chains were worth $260 and $340 but stated “that’s a rough guess.” They had been acquired for him by his mother for his 21st birthday.

In Doubling v. State (1976), 32 Ill. Ct. Cl. 1, this Court held that where a bailment is shown to have existed, Respondent may be liable for the value of the Claimant’s property. In Bargas v. State, 32 Ill. Ct. Cl. 99, it was held that the State does not owe a duty to its inmates of penal institutions to safeguard their property, which they may keep in their cells, from pilferage by other inmates. In Blount v. State, 35 Ill. Ct. Cl. 790, this Court held that the cumulative precedential effect of Doubling and Bargas, supra, is not to be interpreted to mean that unless a bailment relationship is alleged or established by the evidence, the loss of an inmate’s property is never compensable. In Blount, this Court stated that if properly pleaded and proven, the State can be held liable for the loss of an inmate’s property notwithstanding the existence or nonexistence of a bailment relationship. This Court stated that, “to hold otherwise would be to condone irresponsibility and/or complicity on the part of the prison authorities.”

In this case, Claimant alleges that, at the time of his transfer, an unknown officer, agent or employee of the State took exclusive possession and control of Claimant’s property, and further, that Claimant had been informed by Respondent that his property was missing and could not be returned to Claimant. There is no evidence which would tend to prove the allegations of the complaint. Claimant did not proceed against Respondent on the basis of negligence but chose to proceed on the basis of bailment.

No proof of a bailment was offered.

It is therefore ordered that this claim is dismissed, with prejudice.


author: Sommer, J.

text:
    (No. 85-CC-2570
    Thearity White, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 22, 1987.

    Thearity White, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Claire E. Taylor, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

Claimant, a former resident of the Stateville Correctional Center, now residing at the Danville Correctional Center, has brought this action for personal injuries sustained by him on February 26, 1985, on the Stateville grounds when a manhole cover fell on his left middle finger.

The Claimant and two other residents were on a work crew which had the daily duty of lifting various manhole covers (150 to 200 pounds each) in order to inspect whatever was below the covers. Generally, the covers were lifted by a hook which would enter a hole in the covers and grip the reverse side. However, some new covers had been installed in which the hole did not go through. The supervisor of the Claimant’s work crew manufactured a hook to lift these new covers. The Claimant’s job was to grasp the cover as it was lifted and slide it aside as it was hanging on the hook. On the occasion of the injury, the new hook slipped, and the cover dropped on the Claimant’s left middle finger trapping it between the edge of the manhole and the cover. The finger was badly mangled. No bones were broken, but at the time of the hearing some loss of use was evident. Claimant is right-handed.

Testimony from all three members of the work crew was that the crew’s supervisor made a hook to lift the new manhole covers and ordered its use. No blocks were provided to slip under the lifted cover, so the Claimant had to slip his hands under the cover. The Respondent had a duty to provide safe tools and safe working procedures. This Court finds that both duties were breached.

This Court finds that the Claimant did suffer great pain as a result of the accident and did suffer some permanent damage to his left middle finger. In Hughes v. State (1984), 37 Ill. Ct. Cl. 251, a prisoner mangled and broke the bones in three fingers when a block of ice fell on them. He had substantial permanent loss of use of one finger and some permanent loss of use of another finger, with further surgery needed. He was awarded $9,000 by this Court for his pain and suffering and loss of use.

Therefore, we award the Claimant $3,000 for pain and suffering and loss of use.


text:
    (No. 85-CC-3061
    Gerald Harris, Individually, and for the use and benefit of General Casualty Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 10, 1986.

    Daniel R. Simmons, for Claimant.

      Neil F. Hartigan, Attorney General (Claire E. B. Gibson, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this cause seeks to recover $5,194.83 for damages sustained to his truck which was damaged in an accident on January 18,1985.

The facts in this cause are undisputed. On January 18, 1985, two semitrailer trucks loaded with coal, and owned by Claimant Gerald Harris, were being driven eastbound on U.S. Route 16, a two-lane rural highway. A semi driven by Claimant’s employee, Billy Morrisson, was following a semi driven by another of Claimant’s employees, Darryl Reilly. It was their usual practice to travel together when loading and delivering the coal, and they had done so for a long period of time.

Travelling eastward through Litchfield, Illinois, the trucks proceeded down a hill, the crest of which was approximately one mile from a bridge located at the foot of the hill. There was a line of three or four cars in front of the lead semi, also traveling eastbound. Both drivers observed a State of Illinois snowplow ahead, plowing on the right-hand road shoulder, as they drove down the hill. The orange beacon light on the snowplow was operating. As the trucks neared the bridge, driver Reilly saw the snowplow pull onto the bridge (which had no shoulder) ahead of the line of cars. He signaled driver Morrisson behind him by braking and warning him by CB radio that the plow was pulling onto the bridge. The snowplow and the cars went across the bridge and, just as driver Reilly got across the bridge, he completely stopped his semi on the road and was then rear-ended by Morrisson’s semi, causing damage to the front of Morrisson’s semi. Reilly had not told Morrisson he was going to stop on the pavement. The two semis were the only vehicles involved in the accident.

Under the doctrine of respondeat superior, Claimant is responsible for the actions of his employees, within the scope of their employment. Claimant’s driver employees were acting within their employment when this accident occurred.

Claimant’s driver employees were charged with ordinary common law duties of care to keep a lookout (Pyle v. State (1980), 33 Ill. Ct. Cl. 6), to see things obviously visible (Pyle, supra; Adams v. State (1981), 35 Ill. Ct. Cl. 216), and to keep their vehicles under control (Howell v. State (1959), 23 Ill. Ct. Cl. 141). Further, they had a statutory duty under section 11 — 601 of the Illinois Vehicle Code (Ill. Rev. Stat., ch. 95/2, par. 11 — 601) to drive at speeds reasonable and proper under the conditions that existed, so as not to endanger the safety of persons or property, and to decrease speed as necessary to avoid colliding with persons or vehicles. Both drivers had a duty under section 11 — 710 of the Illinois Vehicle Code (Ill. Rev. Stat., ch. 95M, par. 11— 710) not to follow vehicles ahead more closely than is reasonable and prudent, considering speed, traffic, and highway conditions.

From the evidence submitted, the Court is of the opinion that driver Reilly in the lead truck violated his duties by negligently stopping on the pavement, without specific warning, when it was not necessary for him to do so. If it was necessary for him to stop completely to avoid hitting the car in front of him, then he must have been driving too fast or following too closely, since the car in front of him did not stop.

Although driver Morrisson testified he was driving below the limit of 45 miles per hour, the Court can only conclude from the facts of the accident that he was either driving too fast under the circumstances or that he was following the other truck too closely.

It is well to note that the three or four autos immediately ahead of the truck were all able to slow down enough behind the snowplow to avoid collisions. Only the Claimant’s drivers were unable to slow down enough to drive on behind the snowplow as the autos did. This is clear evidence that they were either driving too fast or following too closely and the one could not stop when the truck in front of him stopped on the pavement.

The adoption of the doctrine of comparative negligence in the State of Illinois did not extinguish the requirement of proximate cause. Failure to establish proximate cause of an injury precludes liability, negating the need to compare fault. Nunley v. Village of Cahokia (1983), 115 Ill. App. 3d 208, 450 N.E.2d 363, leave to appeal denied; Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 449 N.E.2d 1358.

It therefore appears the proximate cause of the rear-end collision was the negligent driving of Claimant’s drivers. They could have avoided the accident by watching the traffic ahead of them more closely, by driving slower, or at a greater distance behind the vehicles in front of them.

This claim is denied.


text:
    (No. 86-CC-0048
    Maurice Moore, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 22, 1987.

    Maurice Moore, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This is a claim brought by Maurice Moore for personal injuries sustained by him while a resident of the Centraba Correctional Center. On April 27, 1985, Claimant was playing cards in the day room of the institution. While sitting in a plastic swivel chair bolted to a table unit, the chair gave way and threw him to the floor. He injured his back, and in trying not to hit his head on the floor, caused his left index finger to be sprained. Examination of the chair revealed that one or more of the screws needed to hold the chair to the unit were missing.

Applying this Court’s holding in Ware v. State, 25 Ill. Ct. Cl. 181, Claimant made an unrebutted prima facie case of negligence on the part of the Respondent. In Ware, the Claimant was injured when the chair in which she was sitting in a State office collapsed.

“This Court is of the opinion that the doctrine of res ipsa loquitur is applicable to a public authority in Illinois. (See Roberts v. City of Sterling, 22 Ill. App. 2d 337; Kenney v. State, 22 Ill. Ct. Cl. 247; and Finch v. State, 22 Ill. Ct. Cl. 376.) The testimony clearly shows that the chair in question was under the control and management of the Unemployment Compensation Division of the Department of Labor of the State of Illinois, and that the occurrence was such as in the ordinary course of events would not have happened if due care had been exercised by Respondent. Claimant has established a prima facie case of negligence on the part of the Respondent, thereby shifting the burden of proof to Respondent. Respondent produced no evidence on the question of negligence and has failed to rebut the presumption raised by Claimant’s testimony. There is testimony in the record by Claimant that after the fall she noticed there was an old place in the chair where the chair had cracked, and that there was a crack on the back part of the chair where the seat goes into the leg. Under the doctrine of res ipsa loquitur it becomes the obligation of Respondent to show by affirmative proof that Respondent was not guilty of negligence in the incident in question, namely, the collapsing of the chair on which the Claimant sat. Respondent has failed to do so, and the Court finds that Respondent was guilty of negligence in the maintenance of the chair, and that said negligence caused the injury to Claimant.” Ware v. State, 25 Ill. Ct. Cl. 181, 185.

Claimant’s medical history pertaining to the accident is contained in the departmental report attached to the transcript of this case. We are of the opinion that the Claimant suffered temporary pain and discomfort. It appears that he was unable to work in the correctional center kitchen for two weeks, and lost $6.00 in pay.

Therefore, we award the Claimant five hundred dollars ($500.00) for pain and suffering.


author: POCH, J.

text:
    (No. 86-CC-0230
    Vera Irene McGraw, Claimant, v. The State of Illinois, Department of Transportation, Respondent.

      Opinion filed August 6, 1986.

    Lawrence Bruckner, for Claimant.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an incident which occurred on December 13, 1983, at the State of Illinois Department of Transportation headquarters in Dixon, Illinois.

On that date the Red Cross set up its bloodmobile in the assembly room of the Department headquarters for the benefit of the Transportation employees and others who desired to donate blood.

On the morning of December 13,1983, at about 10 a.m., Claimant drove into the employees’ parking lot at the north end of the Department of Transportation complex and parked her car. Claimant came as a volunteer to help prepare lunch for those who had donated blood. It had rained the night before and the temperature was in the low thirties.

Claimant entered the building at the north door and walked down the corridor to the assembly room where she found the bloodmobile. She intended to return to her car to bring in the groceries for the donors’ lunch.

As Claimant started for her car, a man who also was a volunteer for the Red Cross offered to go with her to carry the groceries. Claimant testified she started to retrace her steps and started to walk in the same direction as she came when the other volunteer said, “You’re going the long way. I’ll show you.a short cut.” She further testified that from then on “I was in his hands, and went with him as he seemed to know where he was going.”

Unfortunately, he did not know where he was going and they walked in the exact opposite direction from the direction they should have taken and exited the building at its far southwest corner.

The Department of Transportation had posted signs both inside and outside the building identifying the parking lot to be used by the volunteers and donors, and the portions of the building being set aside for Red Cross purposes. In walking in the direction which they did Claimant and her friend ignored a sign in the corridor pointing in the opposite direction. They exited the building onto a concrete parking lot.

They were passing in front of a garage door when Claimant slipped on some ice and fell breaking her left arm.

Claimant testified that the surface was clear and that the ice was thin and very smooth. The sheet of ice was about three feet across.

As a result of the fall, Claimant was unable to accept a job as a cook.

James P. Wasilewski, a witness for Respondent, testified that he is the business services manager for the installation and is responsible for the maintenance of the office, including snow and ice removal around the facility. He testified that he made detailed preparations both inside and outside the building to insure the safety of persons using the parking lot and the part of the building reserved for volunteers and blood donors. He did not anticipate that anyone involved in the blood program would find their way into the southwest comer of the building. After the accident, Wasilewski did inspect the area where Claimant had fallen and found only dampness on the pavement.

The State is not an insurer of the safety of invitees, but must only exercise reasonable care for the safety of invitees.

The burden is upon the Claimant to prove by a preponderance of the evidence that the State breached its duty of reasonable care. This Claimant has failed to do.

We find that the Claimant has not shown by a preponderance of the evidence that the Respondent was negligent, and therefore this claim is denied.


text:
    (No. 86-CC-0338
    James Davis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 26, 1987.

    James Davis, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Jim Majors, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

Claimant’s complaint arose from an incident on June 2, 1985. On that date, the State of Illinois Department of Corrections (State) allegedly made Claimant use an unsafe bucket, without a handle, to pour hot water into a coffee pot. The bucket slipped out of his hands, the hot water spilled and caused burns to Claimant’s right foot. He further alleged that the State failed to provide proper medical care for his injuries. During the period in question, Claimant was an inmate at Stateville Prison in Pontiac.

The case proceeded to trial on July 10, 1986. The evidence consisted of Claimant’s testimony, the Department of Corrections report and Claimant’s medical records. Claimant and Respondent each filed briefs in support of their respective positions. Claimant advised the Court on February 22, 1987, that he would not file a reply brief.

For the following reasons, this claim is denied.

At the time of the incident in question, Claimant was assigned to the officers’ kitchen at Stateville. His responsibilities were to maintain a steam table and make coffee. Claimant had been assigned to this area for approximately three years. For two of those years he made coffee each morning he worked.

Prior to being assigned to Stateville he had organized kitchens and taught people how to run kitchens. He also trained other prisoners assigned to the officers’ kitchen.

Claimant testified that on Sunday, June 2, 1985, at about 5:30 a.m., he was in the kitchen making coffee. He followed the same process he had in the past. Claimant drew hot water for the coffee machine into a bucket. Whether the bucket had a handle or not is disputed. Claimant alleges it was without a handle. He then stood on a chair and proceeded to pour the hot water into the coffee machine. While Claimant was pouring, the bucket slipped and the water spilled on his foot. He immediately took off his shoe and sock and the skin had begun to blister.

From the kitchen, Claimant went to the office of the kitchen and saw a supervisor named Jones. Jones gave him some Silvadene burn cream, which Claimant applied to his foot. At Jones’ direction, Claimant was assisted to the prison hospital.

Upon arrival at the hospital, two paramedics on duty informed Claimant that a doctor was not on duty at the time and that nothing could be done. He asked the paramedics for something for the pain but was refused because no doctor was present. Claimant was told by the paramedics that a doctor would be in between 10 and 10:30 a.m. While he was waiting, the only thing that could be done was to soak his foot in cold water.

Some of Claimant’s fellow inmates assisted him into a bathroom. He put his foot in a pan of ice water while he was waiting. During this period Claimant’s foot swelled and he passed out intermittently.

At 10:30 a.m. Claimant saw a doctor. The doctor said that it was a second degree burn. The doctor advised a two-day lay in and Tylenol for the pain. A lay in means that Claimant was to stay in his cell with no work activity. When asked about the pain, the doctor responded that Tylenol was all he would prescribe at that time.

The next day, on June 3, a paramedic took Claimant back to the hospital. Blisters on his foot were broken by hospital personnel, medicated and dressed. At this time medication was prescribed for Claimant’s pain. The next few days, he had the dressing changed twice a day.

Claimant further testified that on Friday, June 7, he was admitted into the hospital because his foot was infected. Claimant’s dressings were still changed twice a day and he was given pain medication twice a day. Approximately one week later, Claimant was discharged from the hospital. Subsequent to discharge he was to return from the cellhouse daily to have the dressings changed and receive therapy. Claimant was told he could return to work when he could get his shoe on. One or two weeks later, he could wear a shoe and was told to return to work.

The Department of Corrections report, offered as evidence by the State, contained an incident report filed by supervisor Jones, a statement by James Heaton, health care unit administrator, and Claimant’s medical records. The records indicate that Claimant was treated June 2, at 6:05 a.m., in the prison medical unit by a registered nurse. Silvadene cream and a sterile dressing were applied. No blistering was noted by the nurse and Claimant was told to return at 10 a.m. for examination by a doctor.

Upon return at 10 a.m. the doctor diagnosed “developing first degree burns.” The doctor also indicated that the patient did not complain of any pain or discomfort.

On June 3, Claimant returned and was again seen by a nurse and doctor. The diagnosis was changed to second degree burns as blisters had developed. The blisters were debrided and fresh dressings applied. No complaint of pain by the Claimant was indicated. Claimant continued to return for a change of dressings and examination daily from June 3 through June 7.

No complaint of pain was recorded until June 6. Heaton’s report states that at 10:20 a.m. on June 6, Claimant was given two Percodon pain tablets. On June 7, Claimant was admitted to the infirmary for one week for treatment. During that period, any complaints of pain were duly noted and medicated and Claimant’s condition was regularly monitored. Claimant was discharged on June 13, with orders to return daily for seven days for therapy and dressing change.

As can be seen from the preceding scenario, the two versions of Claimant’s medical treatment parallel each other quite closely. Stripped of Claimant’s rhetorical embellishments, the only material deviation stems from when Claimant first complained of pain and whether the State’s asserted ignorance of those complaints equals improper medical treatment. The answer to that question has to be no.

The issues before the Court are whether the State was negligent in supplying unsafe equipment for the Claimant and if the medical treatment afforded Claimant was of a standard of care below that required in the community.

The State has a duty to supervise the work of inmates in State penitentiaries and to provide safe and adequate work tools. (Hughes v. State (1984), 37 Ill. Ct. Cl. 251.) While it is disturbing that the issue of whether or not the bucket had a handle cannot be definitively resolved because the bucket has mysteriously disappeared, that fact bears little weight upon the Court’s conclusion. Accepting as true the assertion that it did not have a handle, Claimant made coffee with this bucket daily for two years. He was familiar with the kitchen operation. It would appear that the Claimant did not act with due care for his own safety in an area and with equipment with which he was familiar.

Granted, as an inmate, Claimant is required to take orders and carry them out. He did not enjoy the same independence as a person outside the penitentiary. To refuse to use the bucket may subject him to disciplinary action. So Claimant kept silent and did as he was told. Goodrich v. State (1984), 36 Ill. Ct. Cl. 326; Moore v. State (1951), 21 Ill. Ct. Cl. 282.

However, Claimant’s position does not relieve him of a duty to exercise due care for his own safety. Claimant has the burden of proving his claim by a preponderance of the evidence and has not done so. Brown v. State (1980), 33 Ill. Ct. Cl. 100; Cook v. State (1973), 28 Ill. Ct. Cl. 240.

There was no evidence that a supervisor was aware of any dangerous condition or that Claimant ever affirmatively requested a different bucket. (Burns v. State (1982), 35 Ill. Ct. Cl. 782.) There was no evidence that Claimant or anyone else had any problems with the bucket before the injury. There was no testimony that the bucket was improper for its use. (Robinson v. State (1984), 36 Ill. Ct. Cl. 298.) Further, under the evidence before the Court, the bucket could not be called inherently dangerous. McCahee v. State (1977), 33 Ill. Ct. Cl. 326.

Finally, Claimant has failed to show what standards were acceptable and what equipment was proper for use in performing his duties at the time of injury. (Kemper v. State (1982), 35 Ill. Ct. Cl. 144.) In fact, Claimant used this bucket and followed the same procedure daily for two years prior to his accident.

Claimant cites Spears v. State (1984), 37 Ill. Ct. Cl. 164, as support for his position. Spears is inapposite to the facts at hand. In Spears, liability was predicated upon the Claimant’s lack of training. Clearly, that situation does not apply to the case at bar.

Claimant’s allegations of improper medical care are equally without merit. No proof of the State’s alleged negligence other than Claimant’s own conclusory testimony was presented. There also was no proof of any standard of care violated by Respondent. Wollard v. State (1980), 34 Ill. Ct. Cl. 198.

Claimant must establish a breach of duty through expert testimony to establish that the Respondent deviated from the required standard of care. (See Conrad v. Christ Hospital (1975), 77 Ill. App. 3d 337, 395 N.E.2d 201.) Claimant cites Clark v. State (1984), 37 Ill. Ct. Cl. 231, in support of his position that he is excepted from the above expert rule.

Claimant’s stance is untenable. The negligence in Clark was so obvious that an expert was not necessary. This is missing in the present case. Claimant was examined and treated on at least a daily basis from the time of his injury until his return to work. He offered no convincing evidence that either his pain or the seriousness of the injury was exacerbated by the State’s treatment. Without more from Claimant, the department report rebuts Claimant’s conclusions of negligence and is prima facie evidence that adequate treatment was given Claimant. Splain v. State (1980), 34 Ill. Ct. Cl. 111.

Accordingly, Claimant James Davis’ claim is denied.


text:
    (No. 86-CC-1067
    Barbara Lyons, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 21, 1987.

    Winstein, Kavensky, Wallace & Doughty (Craig L. Kavensky, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Claire Taylor, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an accident which occurred on November 25, 1984. Claimant seeks to recover for injuries she sustained when she fell after descending a flight of stairs constructed of wood and maintained by the Respondent at Black Hawk State Park located near Rock Island, Illinois.

On October 9, 1986, Commissioner Bruno P. Bernabei held a hearing on the evidence. The commissioner has duly filed his report, together with the transcript, exhibits and briefs now before us.

The Claimant testified that as she stepped off the last step of the stairway with her left foot on to a wooden platform, her left foot became caught in a hole located on said platform. She further testified that as she brought her right foot down, it also became lodged in the hole located on the platform, thereby causing her to fall to the ground.

The injuries consisted of fractures to both of her ankles, the right ankle suffering a nondisplaced break of the distal fibula, and the left ankle suffered fractures involving three breaks. She was treated by Dr. Richard Ripperger, who last examined her approximately four months after the accident noting good range of motion. Although Claimant was advised by the treating physician to return for a follow-up within three months if she was still experiencing difficulty, Claimant testified that she did not in fact return to the doctor.

The testimony by Respondent’s witnesses was to the effect that the stairway and platform in question were originally built in 1976 and that the stairway itself was replaced in the summer of 1984. There was further testimony that the stairway and platform were last inspected during the first week of November 1984, at which time they were found to be in good condition. The platform itself was constructed of two-inch by 10-inch boards with a thickness of 1M inches. The testimony indicated that the wood was specially treated, but it would still be subject to deterioration from the weather.

At the time of the hearing, the Claimant testified that she still has pins in her left ankle and that she notices swelling in both of her ankles. She further testified that, depending on the weather, she experiences considerable pain. Claimant testified that she is no longer able to walk the distances that she was able to prior to the accident, and is concerned that she will not be able to return to her nursing profession.

Total medical expenses incurred because of the injury to Claimant were in the amount of $5,143.35, and of said amount all but $1,078.48 was paid for by insurance providers.

Claimant relies on Baren v. State (1974), 30 Ill. Ct. Cl. 162, wherein the Court held that the existence of a hole on a public street for over a month gave the State constructive notice of its existence and that the State was under a duty to either make repairs or erect a warning of said condition. The Claimant feels that based on photographs taken within one month of the accident, which were introduced into evidence, showing a hole which would appear to have been in existence for some time, the Respondent would, therefore, have constructive notice of the dangerous condition.

From the evidence introduced and the testimony of witnesses, it appears that the alleged defect had not rotted through the board and, at best, would be construed to be a minor defect in the platform. This Court has noted that minor defects are not actionable in that no one would anticipate danger from such minor defects. If, in this case, the condition had worsened and deteriorated into a hole in the platform, it would have become a dangerous condition, thereby imposing responsibility on the Respondent, if the said Respondent had actual notice thereof or sufficient evidence supporting constructive notice. This does not appear to be the case under the evidence presented in this matter.

This Court has previously found that the Respondent State has a duty to exercise reasonable care in the maintenance of its parks. (Finn v. State (1962), 24 Ill. Ct. Cl. 177.) The Respondent is not an insurer against accidents occurring to visitors to park facilities, and is not required to undertake extraordinarily burdensome inspections. (Finn, supra.) The facts, as set out above, establish that the park personnel made weekly summer inspections, responded immediately to complaints, and made repairs promptly. A case directly on point is Barry v. State (1982), 35 Ill. Ct. Cl. 131. In Barry, the Claimant fell off a wooden stairway on a hiking trail when the handrail gave way. Weekly inspections had been made of that structure, as they were in this case. Recovery was denied in Barry, for lack of notice of the defective condition.

It is a principle of law that an invitee, such as the Claimant, assumes normal or obvious risks attendant to the use of premises. (Lindberg v. State (1954), 22 Ill. Ct. Cl. 29.) Because the State is not an insurer it cannot be expected to remove all risks of accidents which may occur in the absence of negligence. Obviously, there are certain risks inherent in hiking that must be assumed by the hiker. Kamin v. Illinois (1953), 21 Ill. Ct. Cl. 467.

The burden is upon the Claimant to prove by a preponderance of the evidence that the State breached its duty of reasonable care.

It is the opinion of the Court that Claimant has not shown by a preponderance of the evidence that the State was negligent and therefore this claim is denied.


text:
    (No. 86-CC-1220
    Craig Randich, Claimant, v. The Illinois Department of Corrections, a division of The State of Illinois, Respondent.

      Opinion filed August 18, 1986.

    Craig Randich, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This matter is before the Court upon the joint stipulation of the parties hereto. This claim sounds in tort and is brought pursuant to section 8(d) of the Court of Claims Act. Ill. Rev. Stat. 1985, ch. 37, par. 439.8(d).

On or about July 4, 1985, a tractor operated by an inmate of Stateville Correctional Center struck Claimant’s automobile at a location just outside the prison ¿remises. At the time of the incident, said inmate was engaged in certain work at the request and direction of Respondent. As a result of this incident, Claimant sustained damage to his automobile.

We note that the parties hereto have agreed to a settlement of this claim and that Respondent agrees to the entry of an award in favor of Claimant in the amount of three hundred one dollars and seventy-seven cents ($301.77).

Based on the foregoing, Claimant, Craig Randich, is hereby awarded the sum of three hundred one dollars and seventy-seven cents ($301.77), in full and final satisfaction of this claim.