text:
    (No. 73-CC-0250
    Galesburg Construction Company, Inc., Claimant, v. State of Illinois, Respondent.

      Opinion filed, June 14, 1978.

    Barash & Stoerzbach, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Poch, J.

This claim arises out of a contract to construct a chapel.

In October, 1970, the State of Illinois advertisied for bids for the construction of All Faiths Chapel at the Illinois Soldiers’ and Sailors’ Home, Quincy, Illinois. Respondent prepared and distributed to Claimant and other interested contractors various proposals and specifications for the contractors’ use in preparing their bids, among the proposals being the following:

“PR OP O SAL NO. 1: For the complete construction and completion of all General Construction Work for the All Faiths Chapel, Illinois Soldiers’ and Sailors’ Home, Quincy, Illinois, as shown on the drawings and as specified, exclusive of the work required for the complete construction and completion of all work shown and called for in the Additive Proposals listed hereinafter.
PROPOSAL NO. 1A: In the event that the complete construction and completion of all general construction work as shown on the drawings for the site improvements, division 3000, pages 300,301,302 ánd 303 including removal of top soil and excavation for paving, paragraphs 2010 and 2011, and filling for paved areas, paragraphs 2018,2019 and 2021, is accepted and authorized and to Proposal No. 1.”

In due course Claimant submitted a bid for Proposal No. 1, known as general construction work, and a bid for Proposal No. 1A, known as site improvement work.

As appears on the face of Proposal No. 1A above, the proposal refers specifically to the “drawings for the site improvements”, such drawing being blueprint A-l in the schedule of drawings furnished the bidders. In the Schedule of Drawings, blueprint A-l bears the legend “Site Plan, Soil Borings, and Drawing Schedule.” Proposal No. 1A also refers the bidder to Division 3000 of the specifications, the same being essentially concerned with the specifications for sidewalks.

On December 15,1970, Respondent notified Claimant that it had accepted Claimant’s bid for Proposal No. 1.

Proposal No. 1A for “site work” was not awarded to any contractor.

Respondent’s decision not to proceed with Proposal No. 1A was based partly on the fact that costs would have exceeded the appropriation, and partly for the reasons advanced in a recommendation made by the supervising architect before contracts were awarded:

“Another consideration for deleting this alternative is that it includes exterior work, landscaping, sidewalk, concrete drives, parking areas and walks which could not normally be completed before late next Spring at the earliest.” (emphasis added).

The dispute between the parties arises over whether a five inch concrete sidewalk immediately abutting the building walls on all four sides and under the overhang of the roof was a part of the exterior site plan, for which no contract was let, or was to be considered as a part of the building itself, for the construction of which the contract was let.

This dispute was made possible because of a patent ambiguity appearing on the face of the architect’s drawings. Drawing A-l (Site Plan, Soil Borings, & Drawing Schedule) shows the five inch concrete sidewalk (bearing such legend), four entrance ramps and additional sidewalks, parking areas, concrete drives and landscape work. This drawing is to a scale one inch equals 20 feet. Drawing A-2 (Foundation Plan and Floor Plan) shows the floor plan of the chapel, detailing such interior features as Protestant Chapel, Catholic Chapel, J ewish Chapel, offices, storage facilities, foyer, etc., but also including as part of the building floor plan the five inch sidewalk (bearing such legend) and the four entrance ramps. This drawing is to a scale one-eighth of an inch equals one foot.

Drawing A-5 (Sections and Typical Details) in a Typical Wall Section Thru Facia shows the five inch concrete sidewalk, referring to it as a five inch concrete slab.” This drawing is to a scale one inch equals one foot.

The contractor in preparing his bids included this exterior five inch concrete sidewalk in his bid on Proposal No. 1A, and did not include it in his bid on Proposal No. 1.

The problem surfaced at a project coordination meeting held on March 19,1971. At the meeting Claimant was represented by one Ralph E. Maguire. The matter appears in the minutes of the meeting as follows:

“Rev. Warford asked what was going to be done about the staining problem on the sidewalks where the Corten steel was above the walks. Mr. Maguire stated that this might be a problem when the walks were installed but that he had included all of the site work including site fill, grading, walks, curbs, drives, etc. in his 1A Alternate which has not been accepted to date.
This started quite a conversation as some present were under the impression that the concrete work around the building was in the contract. The question would seem to hinge on the interpretation of what is to be encompassed by Alternate No. 1A.”

The office of the supervising architect was unsure whether the five inch concrete sidewalk was included in the base bid, Proposal No. 1, or in Proposal No. 1A, and requested an interpretation from M. R. Beckstrom, associate architect, who prepared the drawings and specifications.

The architect replied somewhat evasively, by letter of August 24,1971, to the State’s supervising architect, suggesting that negotiations be started for sitework to a point approximately 25 feet beyond the building.

His letter contained numerous self-contradictions and was unacceptable to the State.

Thereafter in a letter to the State supervising architect dated September 21,1971, the architect stated categorically that the five inch concrete sidewalk, (although external to the building walls), was an integral part of the building slabs.

He stated as follows:

“The interpretation of the word ‘sidewalk’ on the site plan to describe that portion of the marginal slab around the building seems to be an exercise in semantics to include it with the site work while it is definitely detailed as an integral part of the building slabs.”

Nevertheless, neither the architect’s evasive interpretation of August 24, 1971, nor his revised interpretation of September 21, 1971, would have been necessary had it not been for the patent ambiguity in his drawings.

This Court, in line with other Courts of the State of Illinois, has consistently held that where a document is amibiguous, it will be construed against the party who prepared it.

Orr Construction Co. v. State of Illinois, 30 Ill.Ct.Cl. 266, 276; (1975);
Madden v. State of Illinois, 27 Ill.Ct.Cl. 118, 124; (1971);
Chism, Inc. v. State of Illinois; 26 Ill.Ct.Cl. 182,185; (1967);
Donahue v. Rockfort Showcase & Fixtures Co., 87 Ill. App. 2d 47, 230 N.E.2d 278, 280 (2d Dist. 1967).

In Chism supra, the Court held:

“It is a settled law of construction that a contract which is ambiguous, will be construed most stongly against the party who prepared the contract, as such party is responsible for the ambiguity ... In this case Respondent was entirely responsible for the preparation of the contrct.” 26 Ill.Ct.Cl. 185.

Various differentiating features appearing in the drawings and specifications influenced Claimant in concluding that the five inch concrete sidewalk was part of the site work. Drawing A5 showed the sidewalk and the floor slab separated by a one-half inch expansion joint on either side of the building walls. In other words, the floor slab and the sidewalk were not contiguous, but were separated from each other by the building walls. The floor inside the building required a six mil. membrane underneath the slab, as a vapor barrier, not required under the sidewalk.

As Claimant’s witness, Fred W. Apsey, testified:

“If you will refer to the drawing you will see that the floor slab inside the building stops at the wall line with a half inch expansion joint between the edge of the floor slab and the inside of the building wall and that underneath the floor slab there is a six mil. membrane and when you go outside the building you will see another half inch expansion joint next to the building and the concrete slab which is the sidewalk and therefore, there is no membrane under it and there are other details like the thickened edge of the sidewalk and certain reinforcing bars and other details.”

Rigid perimeter insulation was put continuously around the floor slab on the inside of the building, as shown on Drawing A5. Less concrete per gallon of water was required for the interior floor slab (not being exposed to the weather) than for the five inch concrete sidewalk.

Finally, the sections of Division 3000 of the specifications referred to in Proposal No. 1A expressly pertain to “concrete sidewalks,” the phrase used in drawings Al and A2.

Claimant was justified in concluding that the exterior five inch concrete sidewalk was to be bid under Proposal 1A and not under Proposal 1.

It is a fair statement that the testimony of the State’s employees called by Claimant as witnesses indicated that the plans were ambiguous with respect to the sidewalk.

Wesley H. Pinchot, at the time of the construction, a project administrator for the Supervising Architect, Department of General Services, State of Illinois, testified that after the dispute arose, “I asked for the interpretation of the intent of the contract documents.” He testified:

“This information in the specifications and drawings was unclear. This is why I asked the associate architect for a clarification that the supervising architect could make a decision.”

The State advances the argument that large scale drawings prevail over small scale drawings in case of dispute, and that large scale drawing A5, where the sidewalk is referred to as a five inch concrete slab,” should prevail over small scale drawings Al and A2 where the sidewalk is referred to as a five inch concrete sidewalk.” This argument is of no help to the State because drawing A5 also shows the expansion joints, the floor membrane, the interior insulation, and the reinforcing bars, differentiating the floor slab from the sidewalk.

The State additionally argues that the five inch concrete sidewalk was really “an exterior floor” to be built under the provisions of the 4000 Division of the specifications, and not under the sections of the 3000 Division referred to in Proposal 1 A, pertaining to “concrete sidewalks.”

The effect of the State’s arguments is merely to remind us that the contract documents, for which the State had the total responsibility, were ambiguous on their face.

After the dispute arose the State threatened Claimant that if Claimant did not build the sidewalk the State would have the work done and withhold the cost from Claimant’s contract pay.

On or about March 21, 1972, Claimant agreed to construct the sidewalk and the four entrance ramps for $5,965.00, an amount estimated by Respondent, and thereafter performed the work.

Respondent has failed to pay Claimant for this additional work made necessary by Respondent’s fault.

Claimant’s claim is hereby allowed in the sum of $5,965.00.


source: Caselaw Access Project

author: Polos, C. J.

license: Public Domain

text:
    (No. 73-CC-0413
    Charles R. Farny, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 14, 1979.

    Charles Given and Pree and Free, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C. J.

Claimant, Charles R. Farny, has brought this action, seeking to recover the sum of $30,653.55 which he alleges is due him for back wages during a period of his illegal discharge from his position with the Illinois Department of Law Enforcement, Division of Fire Prevention.

The facts are not in dispute. For many years prior to November 1,1969, Claimant had been employed as a Deputy Fire Marshall by the Illinois Department of Public Safety, a division of the Illinois Department of Law Enforcement, Division of Fire Prevention. Claimant had performed his duties near his residence in four counties in the southern part of Illinois. In November, 1969, the Department initiated a series of geographical transfers, and Claimant was transferred to Chicago.

On November 17, 1969, Claimant requested a review of this geographical transfer by the Civil Service Commission. Prior to the hearing, a discharge proceedings were initiated against him and he was discharged on December 16, 1969, for failure to report for duty following his geographical transfer. A consolidated hearing was held in January, 1970, on Claimant’s discharge and transfer.

On August 3,1970, a hearing officer recommended that Claimant be returned to a territory located in or near his previous territory. However, the Civil Service Commission did not follow the recommendation of the hearing officer, and denied Claimant’s appeal of his geographical transfer.

Claimant then filed an action for administrative review in the Sangamon County Circuit Court. On July 12, 1971, the Honorable Creel Douglass reversed the decision of the Civil Service Commission and ordered Claimant reinstated to his former position in his former territory. Judge Douglass’ order also directed that Claimant receive back pay from the date of his dismissal to the date of his order.

The Department of Law Enforcement appealed Judge Douglass’ order. On March 1, 1973, the Illinois Appellate Court affirmed the judgment of Judge Douglass and on April 1, 1973, Claimant was reinstated to his former position and restored to duty at a location near his former area.

The parties agree that the only issue before this Court is whether Claimant mitigated his damages during the period of his discharge.

Claimant testified that prior to and during the period of his discharge, he had interests in a family owned grain business, and a school bus business. During the period of his discharge, he performed essentially the same duties in those businesses as he had prior to his discharge.

Claimant testified that during his discharge he sought employment as an insurance adjuster with several companies in his locality. He also unsuccessfully applied for work with two agencies of the State of Illinois in Springfield by making personal calls on the heads of the agencies. However, from December, 1969, through April 1, 1973, he was unable to find employment. He said that his poor health limited the type of work he could perform, and that there was a high level of unemployment in Southern Illinois from 1970 through 1973.

A State employee who has been wrongfully discharged is entitled to his salary during the period of his illegal removal. However, Claimant must do all in his power to mitigate his damages, and all monies earned during the period of the discharge must be set off against the salary lost as a result of the discharge. Schneider v. State, 22 Ill.Ct.Cl. 453; Otto v. State, 24 Ill.Ct.Cl. 72. This Court, sitting as a jury, has the duty to fix damages, by determining whether a Claimant has made reasonable efforts to mitigate his loss. Schneider v. State, 22 Ill.Ct.Cl. 453; Anderson v. State, 25 Ill.Ct.Cl. 198.

On consideration of Claimant’s testimony, we are not convinced that Claimant did all he reasonably could have done to mitigate his damages. However, while Claimant had income from the grain and bus businesses after his discharge, he enjoyed the same income prior to the discharge. This income may not be taken into account in mitigation of Claimant’s damages, as these businesses were operated during hours not taken up by Claimant’s duties for the State of Illinois. See, People ex rel. Bourne v. Johnson, 32 Ill. 2d 324, 305 N.E.2d 470.

It is therefore ordered that Claimant be, and hereby is, awarded the gross sum of $21,533.50.


text:
    (No. 73-CC-0449
    Giffin, Winning, Lindner, Newkirk & Cohen, a Partnership, Claimant, v. State of Illinois, Respondent.

      Order filed December 26, 1978.

   The Claimant filed a claim for services rendered to the director of the Department of Finances of Illinois. Said claim being in the amount of $2,071.49; $1,840.00 for services rendered and $231.49 for advancement in said cause by Claimant.

The only amount that appears to be in dispute between the parties hereto, seems to be the $100.00. The Respondent points out that a distinction should be made between services rendered in litigation and services rendered as an aid or advisor. The evidence in this case shows that the charge for litigation was $100.00.

The objection made by the Respondent in said amount is correct and award is hereby entered in the amount of $2,071.49; $1,840.00 for Claimant’s bill for services rendered as an aid or advisor; and $231.49 monies advanced the Claimant on behalf of the Department of Finance.


author: Holderman, J.

text:
    (No. 74-CC-0058
    Dorothy Todd, Administratrix of the Estate of Ronald Stege Todd, Deceased, Claimant, v. State of Illinois, Respondent.

      Order filed September 7, 1978.

   Holderman, J.

This matter comes before the Court on a petition for rehearing filed by Respondent.

In the opinion of this Court, the doctrine of res ipsa loquitur was properly invoked by the Claimant in this case.

In the case of Westchester Fire Insurance Company v. State of Illinois, 27 Ill.Ct.Cl. 327, the Court held that “when a thing which has caused an injury is shown to be under the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the parties charged, that it arose from want of due care.”

In this case, the evidence is uncontradicted that the deceased was very unstable on his feet, that he needed help to get around, and he had access to liquor and, possibly, drugs. In addition, the fact that after his disappearance was noticed, only a token search was made for this individual, sustains the position of Claimant.

The original award in the amount of $58,750.00 to Dorothy Todd, wife and sole surviving next of kin of the deceased, is hereby affirmed.


text:
    (No. 74-CC-0097
    Donald Virzint, Claimant, v. State of Illinois, Respondent.

      Opinion filed August 3, 1978.

    Reed, Lucas, & Doherty, Attorneys for Claimant.
    William J. Scott, Attorney General; William Karaganis, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant filed a suit against the State of Illinois alleging that on January 1,1973, he and his wife went to the Chicago Reed Mental Health Center to visit his stepson, who was an inmate at said center.

Claimant and his wife were admitted to the visitor’s room in the building where the stepson was quartered. Shortly thereafter, they accompanied his stepson into an adjoining room, known as a game room or day room, where the son was to show them a package containing a gift from Claimant. This package had been previously brought to the inmate by his sister.

While being shown the package, another inmate grabbed the package from Claimant’s stepson. When Claimant told the inmate to give the package back, the inmate struck Claimant violently in the mouth causing him to be knocked to the floor where the assailant, together with other inmates, beat and kicked Claimant. Hospital personnel from outside the room came to Claimant’s aid and the inmates scattered.

Claimant was taken to Respondent’s hospital where his mouth and lip were sutured. After leaving the hospital, Claimant went to Christ Community Hospital where he was x-rayed and attended by his own physician, Dr. Walter Gingold. The following day, he saw his dentist, Dr. J. S. Warshaw, and an oral surgeon, Dr. Albert J. Petrulis, who removed several of his teeth that were loosened as a result of the assault. Claimant stated that his upper plate was also broken.

Claimant testified that as a result of his injuries, he remained off his job as plumber foreman for a period of six days, and his loss of earnings, based on his take-home pay, amounted to approximately $300.00.

Claimant further testified that he saw his own doctor, Dr. Gingold, several times and that on the second visit, his stitches were removed. He further stated that because of the injuries to his mouth, he was unable to eat properly and he lost 30 pounds.

Claimant’s special damages, as testified to by him, are as follows:

Christ Community Hospital $ 57.00
Albert J. Petrulis, D.D.S. 85.00
Walter Gingold, M.D. 50.00
J. S. Warshaw, D.D.S. 375.00
Medicines 9.75
Loss of earnings 300.00
Total Special Damages $876.75

The stepson, also called as a witness, stated that while showing a present to his stepfather, an inmate cursed him and claimed the package was his. He testified that the man hit Claimant, knocked his glasses off, grabbed him by the coat and pulled his coat up over his back, and then started kicking the Claimant in the head and face. He also stated he saw none of Respondent’s personnel in the area at the time of the attack.

It appears from the evidence that the State of Illinois was guilty of negligence in failing to properly and adequately supervise the inmates under its care and custody and that it failed to provide proper protection for persons visiting the Chicago Reed Mental Health Center.

It is clear that there was no contributory negligence on the part of Claimant and it is also clear that the losses sustained were the result of negligence on the part of the Respondent.

It is apparent that this lack of supervision and protection on the part of Respondent resulted in the injury suffered by Claimant.

Award is hereby entered in favor of Claimant in the amount of $2,000.00.


text:
    (No. 74-CC-0110
    Jean Moldenhauer, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 6, 1978.

    Finn, Lesuerur & Challos, by Thomas R. Cháleos, Jr., Attorneys for Claimant.
    William J. Scott, Attorney General; Peggy Bastist and Paul Sengphiel, Assistant Attorneys General, for Respondent.
   Holderman, J.

This is a claim for personal injury and property damages sustained by Claimant, a 28 year old female, as a result of an automobile accident that occurred on April 25, 1973, at Harlem Avenue (Route 43), Peotone, Illinois, one-half mile north of Vollmar Road.

The evidence clearly showed that the State of Illinois was responsible for the maintenance of the highway at that time. The evidence further showed that the road was in a deteriorated condition and preparations were being made for the resurfacing of said highway.

It is Claimant’s contention that she was driving her car south on Harlem Avenue, struck a hole in the roadway and swerved onto the west shoulder for a short distance, then came back on the paved portion of the highway and struck a second hole, and then skidded across the center line into the northbound lane of traffic causing a head on collision.

The accident occurred on April 25, 1978, at approximately 4:30 p.m.

This Court has passed several times upon the liability of the State for defects in state highways that have caused accidents. One of the more recent cases is in 29 Ill.Ct.Cl. 10, which lays down the rule that Claimant must show Respondent had, or should have had, knowledge of alleged defects before recovery can be had.

Claimant in the present case testified that this was a road she traveled very infrequently and consequently had no prior knowledge of the defects that were alleged to have existed. The posted speed limit was 65 m.p.h., and there is no evidence to show that Claimant was exceeding that limit. The weather was clear and the road was dry. Witnesses testified to the fact that Claimant was driving between 45 and 50 m.p.h.

An eye witness to the accident, Arthur Faber, testified that at the time of the accident the southbound lane of Route 43 from Oak Park Avenue to the scene of the occurrence, a distance of about one mile, was a series of chuckholes that were up to four feet in diameter and quite deep. He also identified two very large holes he saw in the southbound lane of Route 43 right after Claimant’s accident. He further testified:

“If you were driving your vehicle in a straight line equidistant between the west edge of the road and the center of the road in the southbound lane of traffic, your vehicle would come in contact with any of those holes. I believe one of them was far enough to the right side to strike the right front tire and the other one I am pretty fairly sure was extending far enough out where you could almost hit it with your left front tire.”

The operator of the other car involved in this occurrence, Rose Marie Hernandez, testified that the holes were as wide as the southbound lane of traffic. She further testified that on the morning of the accident she took Route 43 to go to work and was traveling southbound just north of Vollmar Road. She testified these two holes were in the roadway that morning and to avoid them, she slowed down, went into the northbound lane and then back into the southbound lane which was her normal procedure.

James Floyd, another eyewitness, testified that one of the holes was a good wheel deep and if you hit the hole, you could bury your wheel in it. He also described the hole as being so deep you could drop a flat tire in it and you wouldn’t see it. This same witness testified that on the weekend before the present accident, he was driving over this same highway and hit the same hole Claimant’s car hit, the force of which impact blew a tire on his car, and that in fact several cars immediately behind his car hit the same hole and blew their tires.

Peter J. Kelly, Jr., State Trooper, testified that he was at the scene of the accident shortly after it happened. He testified that he had received complaints from citizens about the condition of the roadway prior to the accident. He stated the first complaint he received was approximately one week before the accident which he reported to the radio dispatcher at headquarters. The second complaint was from a gentleman at a gas station at 183rd and Harlem, which is about two miles from the scene. After receiving this complaint, he stated he again advised headquarters of this information. He testified he received another complaint on Easter Sunday and at that time the deskman advised the highway department of the situation. This was three days before this occurrence. Trooper Kelly also was of the opinion that the accident was caused by Claimant’s vehicle striking the hole in the roadway.

Walter Madison, a civil engineer with the Department of Transportation, Maintenance Department, testified that Illinois Route 43 was his area of duty in April, 1973, that he was familiar with the area where the accident took place, and that he remembered the particular hole that was alleged to have caused the accident. He further testified this hole had been repaired three or four times prior to April 25, 1973. The repair work he was talking about consisted of a cold mix patch which is composed of stone, sand and asphalt which is placed in the hole. The hole was described by several witnesses as being three to four feet in width and seven to eight inches in depth. Testimony was to the effect that cold patch repairing, particularly at the time repairs were being made on this hole, is not very satisfactory but is the only method of repair that could be done until warmer weather set in. The evidence is to the effect that some of these repairs last for a very short time.

Joseph Kostur, District Safety Claims Manager for the Illinois Department of Transportation, testified that the State made repairs on these particular holes on April 21, 1973, at 8:56 p.m. and that it was done by means of a cold patch which is only temporary repair. Mr. Kostur further testified that in April of 1973, the month of the accident, there were approximately 14,000 cars per day traveling on Route 43 at the scene of this accident. There is repeated and uncontradicted evidence that this was a very heavily traveled highway and that it was in extremely poor condition. The evidence also indicated that the State never posted any signs along the highway warning of the rough road and to reduce the speed limit. Evidence also indicated that several holes existed and these holes were not barricaded nor blocked off.

State Trooper Kelly testified that he examined the scene of the accident within a few minutes after its occurrence, that he could follow the tire marks of the car driven by Claimant, and that it was his opinion the holes in the road were a contributing factor to this accident.

Barry Tucker, an employee of the Illinois Department of Transportation, testified that he came upon the scene of the accident shortly after its occurrence and that Claimant’s car was on the east shoulder of the road facing southbound and approximately six or seven feet off the highway. He testified that the other car, a white Chevrolet with black vinyl top that had also been involved in the accident, was on Harlem Avenue entirely within the northbound traffic lane and was facing northeasterly. He stated both of the occupants were in their cars when he arrived and Claimant was sitting behind the wheel of her car, slumped over the steering wheel, and appeared to be in a very poor physical condition, unconscious, with blood running from her head, cuts, etc. He testified that Exhibit No. 4 accurately and truly portrayed the scene of the occurrence. He stated he could determine where the accident occurred by the dirt, broken glass, etc., that was on the pavement. He further testified that the roadway was broken up with consistent pot holes in many areas near the scene. It was his opinion that one of the holes appeared to be a fresh hole and he did not see any evidence of repair work having been done to that particular hole.

Arthur G. Faber testified that on April 25,1973, he was heading south on Harlem Avenue when he saw the accident in question. He testified he had traveled that road at least twice a day since 1971. He stated traffic was medium to heavy at the time the accident occurred, that the road was full of chuckholes, and it was his opinion that the road was in very poor condition. He stated there were small holes and large holes, some two to four feet in diameter and quite deep, and that these holes were in existence prior to the time of the accident. He stated they had been there all winter, had been patched on several occasion, but kept reappearing.

The evidence is overwhelming to the effect that this was a very poorly maintained highway. The fact that a contract had been let to resurface the same and work was about to begin emphasizes this fact.

Evidence was introduced to the effect that none of the repairs were of too recent date. It is clear that the State had actual, as well as constructive, knowledge of the delapidated condition of the highway, had failed to erect barricades or to post warning signs, or do any other acts to warn the general public.

Claimant, before she can recover, must prove she was free from contributory negligence. It is clear from the record that she was traveling the highway as any motorist has a right to do and that her driving did not in any manner contribute to the accident. She testified that she hit the first chuckhole, went off the road, came back on and hit a second one, and this threw her into the path of the car in the northbound lane.

Claimant was working for the State at the time of her injury at the State Mental Hospital at Tinley Park. She was able to speak several languages and was an expert in communications. After the accident, Claimant was taken by ambulance to the South Suburban Hospital and was in the intensive care unit for ten days. According to her Board Certified surgeon, Dr. Conrad Urban, she suffered a severe cerebral concussion with loss of consciousness, mental confusion, and lethargy, along with retrograde amnesia, a partially collapsed left lung with blood in the chest cavity, pulmonary contusion, fractures to the second and third ribs on the left side, contusion to the abdominal wall, and multiple lacerations of the face, left leg, right arm and right forearm.

Her plastic surgeon testified that even with plastic surgery the scars on her face and other portions of her body could not be erased and would be permanent.

Claimant testified that she has suffered diminution of memory and mental confusion since the accident. She also testified that when she went back to work she could not do the same type of work at the Tinley Park Mental Health Center where she had been a lead psychologist and administrator of Sub-region 14 dealing with mentally retarded individuals. She stated she held a bachelor’s degree in English Education from Purdue University, a master’s degree in English from Chicago State University, and was enrolled at the time of her accident in a Ph.D. program in linguistics at the Illinois Institute of Technology.

She stated when she first returned to work, she found she could only work two days a week until October 1973. At the time of the trial, she was still a psychologist for the Tinley Park Mental Health Center, but she is no longer administrator of her Sub-region 14, does not deal with the Spanish-speaking community, and no longer had a staff of persons working under her. She is presently gathering IBM data from a machine.

While Claimant herself was unable to testify as to the conditions immediately prior to the accident due to her loss of memory, the testimony of other eye witnesses definitely shows a lack of contributory negligence on the part of Claimant and this was not rebutted by the State. It appears therefore that the proximate cause of the accident was the negligent condition of the highway.

This Court has previously held that although the State is not an insurer of all persons who travel on its highways, it does have an obligation to keep them in a reasonably safe condition for motorists traveling over them. If the highways are in a dangerously defective condition, the State is negligent if it does not notify the public of such condition. Mitchell v. State of Illinois, 24 Ill.Ct.Cl. 61; Sisco v. State of Illinois, 24 Ill.Ct.Cl. 306.

In the case of Mary Louise Walla v. State of Illinois, 26 Ill.Ct.Cl. 338, this Court held that while the State of Illinois is not an insurer of every accident that occurs on its public highways, it does have the duty to exercise reasonable care in the maintenance and care of its highways in order that defective and dangerous conditions likely to injure persons lawfully on the highways shall not exist. The Court further held that “posted signs must give adequate warning of the particular hazard which exists."

In the case of Scudiero, et al v. State of Illinois, 26 Ill.Ct.Cl. 457, this Court laid down the rule that before Claimants may recover they must prove by a preponderance of the evidence (1) that Respondent was negligent; (2) that the negligence was the proximate case of the accident; (3) that Claimants were free from contributory negligence; and (4) damages. In the same case, this Court stated that although the State is not an insurer of all who travel on its highways, it does have an obligation to keep its highways in a reasonably safe condition for motorists traveling over them. If the highways are in a dangerously defective condition the State is negligent if it does not notify the public of such condition.

The most difficult problem to decide in this matter is one of damages. Claimant is asking for the maximum recovery of $100,000.00.

The out-of-pocket was $8,356.29 of which the car loss (total) was $1,425.00 and the loss of pay was $2,913.79. The medical and anticipated plastic surgery exceeds $4,000.00.

There is also a claim for memory problem which is highly speculative. The evidence of permanent scarring on the face, right arm, right wrist, both legs, back, thighs, and left knee is graphic and realistic.

The Court feels the claim for $100,000.00 is excessive. Claimant is hereby awarded the sum of $8,356.29 for out-of-pocket plus $20,000.00 in compensation for permanent scarring, for a total award to Claimant in the amount of $28,356.29.


author: Polos, C.J.

text:
    (No. 74-CC-0620
    James Lewis, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 9, 1979.

    Cathleen Cohen and Jan Keleher, Attorneys for Claimant.
    William J. Scott, Attorney General; William Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant demonstrated by preponderance of the evidence that during the course of a transfer from Cook County Jail to the Joliet Correctional Center, Claimant turned over to agents of the State of Illinois several items of personal property: including a gold wedding band, a silver ring, and a wrist watch, having a total value of $234.00. Claimant was told that the items would be shipped to his home address, but shortly thereafter the items were stolen from the office of the State employee.

It appears that the thieves who took the items were caught and are to be prosecuted, but the stolen property is still missing.

The Court finds that the State of Illinois took actual physical possession of Claimant’s property, and that a bailment relationship existed with respect to that property. The loss of property while in the possession of a bailee raises a prima facie case of negligence, and the State has failed to come forward with any evidence showing that it took due care in safeguarding that property.

It is therefore ordered that Claimant be, and herede is awarded the sum of $234.00.


text:
    (No. 74-CC-0666
    Metal-Air Corporation, Claimant, v. State of Illinois, Respondent.

      Order denying rehearing filed September 15, 1978.

   This matter is before this Court on Claimant’s motion for rehearing of our order dismissing this case.

Oral arguments were made on July 18, 1978, and thereafter both Claimant and Respondent submitted memorandum of law.

The original Complaint was for damages in the sum of $12,514.65, allegedly due it because the State had caused Claimant a delay in performance of its contract of August 17, 1970. As a consequence of the delay, Claimant alleged it had to pay out higher labor costs. The contract itself was for $175,336.00 for certain rehabilitation work on the State Capitol Building.

A consent decree was entered by the Circuit Court of Sangamon County on July 18,1975, in a suit against various firms and individuals. The Complaint there was for an injunction and other relief under the “Illinois Anti-Trust Act.” Claimant here signed the consent decree which enjoined the firms and individuals (including Claimant) from engaging in any price fixing and from engaging in restrictions of open price competition. In other words, the injunction was against bid-rigging. Further, the decree ordered the defendants to pay the State $85,000.00 in lieu of any penalty prescribed for a violation of the “Illinois AntiTrust Act.”

The consent decree does contain language that the payment of the $85,000.00 shall in “no way be construed as an acknowledgment of guilt or liability...” It further states that the parties have consented to the decree “without trial or adjudication of any issue of fact or law herein and without this final judgment constituting evidence or any admission by any party with respect to any such issue.” Claimant argues that the foregoing qualifications contained in the decree forecloses it from being a bar to its suit for the alleged damages.

We agree with the Respondent that, “It is the purpose of this Court to recommend to the legislature those claims this Court feels to be meritorious.” The record before us sufficiently establishes that the claim is “tainted” by the obvious conduct of Claimant which prompted it to sign the consent decree. The language of the decree may be urged as a technical out for Claimant, but it cannot and does not absolve Claimant of all guilt. There is a residue of guilt that makes it unconscionable to recognize any merit to its present claim.


text:
    (No. 74-CC-0677
    James O. Farnham, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 10, 1979.

    Cathleen Cohen and Jan Keleher, Attorneys for Claimant.

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

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant has proven that during the course of his transfer from the Joliet Correctional Center to State-ville Correctional Center on May 16, 1972, he relinquished possession and control of items of personal property to agents of the Illinois Department of Corrections. No receipt for the property was given to Claimant, and upon his arrival at Stateville, none of the items were returned to him.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

.“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 N.E.2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare 244 Ala. 301, 13 So2d. 172, at 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant has placed the monetary value of $554.99 upon the lost property. The property lost includes tools, paints and oils, electronic equipment, a slide rule, and other items used by Claimant for a correspondence course in which he was engaged.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $554.99, in satisfaction of his claim.


text:
    (No. 74-CC-0751
    Minnie Booker, Claimant, v. State of Illinois, Respondent.

      Order filed April 17, 1978.

   Holderman, J.

This matter comes before the Court on a motion filed by Respondent to dismiss.and objections filed by Claimant to said motion.

Claimant filed a suit based upon personal injuries received as a result of a fall on the sidewalk in front of a Department of Labor employment office. Claimant alleges that Respondent failed to remove ice and snow from the sidewalk in front of the Department of Labor employment office and to properly maintain a signboard in front of said office, which signboard had fallen over onto the sidewalk and, as a result, Claimant suffered injuries.

Motion to dismiss is based upon the grounds that “neither a municipality nor adjacent property owners are liable for injuries resulting from the natural accumulation of snow and ice.” Levy v. State of Illinois, 22 Ill.Ct.Cl. 694, 697, citing Riccitelli v. Sternfield, 1 Ill. 2d 133.

Respondent further sets forth that the signboard in question belongs to the U.S. Marine Corps, that it was placed there by them to advertise recruitment, that it was entirely under the control of the U.S. Marine Corps, and that suit should have been brought against the U.S. Marine Corps and not the State of Illinois.

Motion to dismiss is hereby granted and said cause dismissed.


text:
    (No. 74-CC-0847
    Allie Hicks and Erma E. Hicks, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 22, 1978.

   Holderman, J.

Claimants seek herein to reform a deed conveying certain real estate to the State of Illinois by adding an exception reserving to them the oil, gas and other minerals under said land. No request has been made for an award for damages, though they do ask that they have such other relief as the Court deems proper.

On the hearing, no evidence of any money damages was introduced and therefore the claim was narrowed to sole request that this Court reform the deed.

The evidence shows that on or about May 15,1972, Claimants discussed the sale of their property with one Roger Hazlett, a representative of a firm having a contract with the State to acquire or purchase property for the State. Claimants testified that they told Hazlett that they would sell the surface of their 80-acre farm near Dolan Lake, but that they had leased the coal to Amax Coal Company for 20 years. Claimants testified that on or about June 5,1972, Hazlett returned to their farm and gave them a check for $28,000.00. Hazlett brought a deed with him and Hicks and his wife signed it. Claimants state that Hazlett told them he had excluded the minerals rights from the sale of the surface. . In fact, the deed did not exclude the minerals rights.

Hazlett was called as a witness by Claimants. He testified that he was employed by David Sullivan Land Services, Inc., which had a contract with the Illinois Department of Conservation. He stated that on May 15,1972, he offered Claimants $26,000.00 for their property, but that no agreement was made. Hazlett testified that on May 15, Mr. Hicks told him that he wanted to retain the minerals. Hazlett advised Hicks that he would see if there could be a conveyance without the minerals.

Hazlett further testified that the State would not accept a deed to the surface only, and that on June 5, 1972, he returned home and read the deed to Mr. Hicks in its entirety. Hazlett stated that in his opinion, Mr. Hicks understood that he was conveying both the surface and the mineral rights. The consideration for the purchase had been increased from the original amount of $26,000.00 to $28,000.00. Hazlett said he told Mr. Hicks that the State would not accept a conveyance of the surface only.

Two issues are before this Court. The first is whether or not this Court has jurisdiction to reform the deed as requested by Claimants. The second is whether the Claimants have proved that there was fraud in the procurement of the deed.

Claimants argue that unless this Court takes jurisdiction, they will be without remedy. They point put that they had originally brought suit in the Circuit Court of Hamilton County, Illinois, but that the case was dismissed, based on Ch. 127, Sec. 801, which provides:

“§801. Immunity of State as defendant or party in Court.
Except as provided in ‘an Act to create the Court of Claims, to prescribe its powers and duties, and to repeal an Act herein named,’ filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any Court.”

Section 4 of Article 13 of the Illinois Constitution of 1970 provides:

“Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

The Circuit Court of Hamilton County was correct in dismissing the Claimant’s case against the State. But the question remains, has the legislature granted jurisdiction to this Court to entertain a claim to reform a deed? In arguing that the Court has jurisdiction to entertain such a claim, Claimants point out that the Illinois Constitution of 1970 provides, in part, that:

“every person shall find certain remedy in the laws for all injuries and wrongs he receives to his person, privacy, property or reputation.”

It is generally held that the Court of Claims has limited jurisdiction and has only such powers as are conferred on it by the legislature. See, 33A Ill. Law & Practice, Ch. 7, §142. The State refers the Court to Taylor v. Michigan, 360 Mich. 146, 103 N.W.2d 769, where the Michigan Court of Claims held that it did not have jurisdiction to hear a declaratory judgment action or to reform a contract. The State also cites Blue Water Excavating Co. v. State, 144 N.W.2d 630, and Montgomery v. State, 328 N.Y.S.2d 189, where the New York Court of Claims held that it had. jurisdiction to hear claims for money only, with its equitable powers limited solely to those set forth in the Act or incidental to enforcement of a claim for money judgment.

However, as Claimants point out, there is Illinois authority to the contrary. In Struve v. State of Illinois, 14 Ill. App. 3d 1092, 303 N.E.2d 32, suit was brought in the Circuit Court to determine whether the terms of a lease between the State and the Plaintiff were being violated. No claim was made for money damages. The defendants moved to dismiss the case on the grounds that such an action was one against the State, and was for the Court of Claims. The Court said:

“We agree with the contention of the defendants that the plaintiffs dispute should be submitted to the Illinois Court of Claims. Section 8 of the “Court of Claims Act” [Ill. Rev.Stat. Ch. 27, Para. 439.8(b)], relates the jurisdiction of the Court of Claims and provides that the Court shall have jurisdiction to hear and determine:
‘(b) All claims against the State founded upon any contract entered into with the State of Illinois.’
Regardless of the relief sought, the plaintiff has made a claim against the State, founded on a contract. These claims should be resolved in the Court of Claims...”

Claimants also cite Sternberg Co. v. Langhorne Bond, Director of the Department of Transportation, 30 Ill. App. 3d 874, 333 N.E.2d 260. There, plaintiffs sought and obtained a temporary injunction against the Department. On appeal, the Court reversed, holding that the action was a suit against the State of Illinois, which the Circuit Court was without jurisdiction to entertain. The Court said:

“The holding does not mean the plaintiff, if wronged, is without remedy. Plaintiff may avail itself of any remedy provided in the Court of Claims. Allen v. State, 2 Ill.Ct.Cl. 404, New Era Construction v. State, 6 Ill.Ct.Cl. 88 and Fuhrer v. State, 22 Ill.Ct.Cl. 144. It is clear that the jurisdiction of the Court of Claims is not limited to money claims, and that one may pursue remedies in the Court of Claims other than for recovery of a sum of money. Plaintiff can also raise any fraud as a defense in any action by the State or the insurance company on the bond.”

Recently, in Hartford Accident & Indemnity Co. v. State, this Court held that it had jurisdiction to enter a declaratory judgment, construing an insurance policy.

The history of the Court of Claims, as described in “The Illinois Court of Claims: A Study of State Liability,” published by the University of Illinois Press, lends further support to this view.

The Constitution of 1870 applied the principle of sovereign immunity, and only in the General Assembly could one seek relief for wrongs for which the State was responsible. In 1877, a Claims Commission was created to hear “all unadjusted claims of all persons against the State of Illinois ... according to the principles of equity and justice . ..”

In 1903, the Claims Commission was abolished and the Court of Claims established with jurisdiction identical to that of the Claims Commission.

In 1917, the old Court of Claims was abolished and a new one established “to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delictu, which the State, as a sovereign Commonwealth, should in equity and good conscience discharge and pay.” (emphasis supplied)

In 1945, the present “Court of Claims Act” was passed. We note that the first three provisions relating to the Court’s jurisdiction speaks in broad terms:

“A. All claims against the State founded upon any law of the State..
B. All claims against the State founded upon any contract... with the State...;
C. All claims against the State for damages in cases sounding in tort..

We have found no Illinois authority that limits the Court’s jurisdiction to cases involving monetary damages. While this is the usual redress sought, what is there says that we can recommend to the legislature the payment of damages arising out of deed procured by fraud, but we cannot recommend that the legislature reform the deed itself. Such a conclusion is within the expressions of the foregoing Appellate Court decisions, and within the spirit for which the Court was established.

We believe that this Court does possess limited equitable powers including authority to enter an award reforming a deed. It must be remembered that such an award would still require some legislative action to carry out the award, and that in so holding, the Court does not imply that it has general equitable powers.

Having decided that we have jurisdiction to enter an award reforming the deed here in question, we must next determine whether Claimants have established the right to reformation.

We have carefully reviewed the record herein, and conclude that Claimants have failed to meet their burden of proving that they were mislead by the agent negotiating the purchase of their property.

It is therfore ordered that this claim be denied.


text:
    (No. 74-CC-0855
    La Salle National Bank, Claimant, v. State of Illinois, Respondent.

      Opinion filed October 30, 1978.

    Richard Altieri, Attorney for Claimant.
    William J. Scott, Attorney General; William J. Karaganis, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant in this cause seeks to recover from Respondent damages for breach of covenant in a lease.

On September 1,1971, by a lease in writing, made between Claimant and Respondent, Claimant leased to Respondent certain premises located at 1325-53 West Washington Boulevard, Chicago, Illinois, with vacant land adjoining buildings.

The lease contained the following covenant:

“5. Lessee has examined and knows the condition of said premises, and has received the same in good order and repair, and acknowledges that no representations as to the condition and repair thereof, have been made by the Lessor or his agent prior to or at the execution of this lease, that are not herein expressed or endorsed hereon; Lessee will keep said premises, including all appurtenances, in good repair, replacing all broken glass with glass of the same size and quality as that broken; and replace all damaged plumbing fixtures with others of equal quality, and will keep said premises, including adjoining alleys, in a clean and healthful condition, according to the City Ordinances, and the direction of the proper public officers, during the term of this lease, at Lessee’s expense; and will without injury to the roof, remove all snow and ice from the same when necessary, and will remove the snow and ice from the sidewalks abutting said premises; and upon the termination of this lease, in any way, will yield up said premises to Lessor in good condition and repair (loss by fire and ordinary wear excepted) and deliver the keys therfor at the place of payment of said rent.”

Respondent entered into possession of said premises, under said lease, from September 1, 1971, and vacated said premises on June 30, 1973.

The record in this case is rather voluminous.

This case hinges upon the amount of damages, if any, over and above ordinary wear and tear of the premises.

The evidence does indicate that the building was in a rather deplorable condition when vacated by the State of Illinois. There is evidence to the effect that partitions had been put in which had not been removed, considerable damage had been done to toilet facilities and walls, and considerable trash and debris had accumulated. There was also evidence that boilers had been stripped of electric motors, doors were gone, and electrical wiring had been broken off. Evidence was introduced showing that paint had been sprayed on the walls and the elevators were in need of considerable repair.

This case poses an unusual problem in that a distinction must be made between ordinary usage and usage that caused the damages over and above ordinary use of said premises.

Claimant makes much of the fact that at about the time the building was rented to the State, it received an offer of $300,000.00 from a prospective buyer in September 1971. The building was finally sold in 1973 for the sum of $150,000.00-$50,000.00 of this price being paid for the vacant land and $100,000.00 for the building itself. Claimant alleges that the reduced selling price was because of the disrepair and damaged condition of the building.

The plumbing contractor testified the cost of repairing the plumbing in the building amounted to $3,168.00.

A service manager for the Reliance Elevator Company testified that repairs to the east elevator would be $9,215.00, and the cost to repair the west elevator would be $7,834.00.

An individual from the Midwesco Service Company, who specializes in repairing heating equipment, boilers and burners, testified that the fair value of parts and labor to repair the boiler, oil burners and pump was $8,876.00, and he further testified that the cost to remove a 12” wall would be $1,285.00.

A general contractor testified that the cost to dismantle certain partitions, replace windows, make masonry, carpentry and floor repairs and painting and fencing repairs would be $9,217.00.

One of the contentions of Respondent was that there must be “out-of-pocket expenditures” before the sale of the building to justify an award of damages to Claimant. Respondent further contends that since the building was sold in 1974 and repairs were not made, Claimant is not entitled to recover for any damages sustained. This seems contrary to the Court’s opinion in the 349 West Ontario Bldg. case, 317 N.E.2d 740, at 749, in which the Court stated “if they could have shown that specific damaged conditions which were caused by the (sub) tenants caused corresponding specific reductions in the market value, they could recover.”

In the case at bar, various servicemen tesified on behalf of Claimant and submitted itemized costs of damages sustained and, in most instances, claims for damages were over and above ordinary wear and tear.

The following cases seem to sustain the position of the Claimant:

In Lucas v. Bowman Dairy Co., 50 Ill. App.2d 413 at 419, the Court held:

“The cost of the rest of the work — painting, papering and replacing glass — is documented by “Estimates” from service men — we believe that this evidence, offered by a Plaintiff with 33 years of experience in interior decorating, was sufficient to form a basis on which the jury could determine reasonable cost of restoring the building.”

Here, it has been clearly shown that on June 15, 1973, the landlord and tenant’s representative (Daniels) inspected the premises and identified the damage-conditions which needed to be repaired.

It is noted that the parties to this case stipulated that:

“On September 20, 1973, letter sent to State of Illinois, Department of General Service, Real Estate and Leasing Division, making a demand for payment of damages.”

Each serviceman’s testimony not only was persuasive but also unimpeached either to their individual qualification as experienced in their individual field or their individual itemized repairs necessary to restore the damaged building.

In 15 Am. Jr., DAMAGES, Sec. 106, page 514:

“There is no fixed rule for determining the measure of damages for injuries to...property in every case. The amount to be awarded depends upon the character of the property and the nature and extent of the injury, and the mode of the amount of proof must be adapted to the facts of each case.”

In Libbra v. Mt. Olive & S. Coal Co., 29 Ill. App.2d at page 401, the Court in following Am. Juris, stated:

“The question here presented is whether or not a fair determination of the damages to the owner of the farm could be arrived at by the testimony of the value of the premises before there was any contamination as compared with the value of the premises after the land was contaminated.”

The Libbra decision, in following Am. Jr., said:

“The Courts have previously considered the probative value of such testimony, citing: Ottawa Gas Light & Coke Co. v. Graham, 28 Ill. 73, Jones v. Sanitary Dist. of Chgo., 252 Ill. 591, Canteen H & F. Ass’n v. Schwartz, 128 Ill. App. 224 (226), Mickley v. General Roofing Mfg. Co. v. 179 Ill. App. 493 (496), Hubele v. Baldwin, 332 Ill. App. 330 (334), Phoenix v. Graham 349 Ill. App. 326.”

It appears that some damages were done to the premises in question. In view of the fact that repairs were not actually made and paid for, the Court can only estimate what a fair amount would be to compensate Claimant for its loss.

It is the Court’s opinion that a fair figure would be in the amount of $20,000.00, for damages over and above ordinary wear and tear.

An award is hereby entered in favor of Claimant in the sum of $20,000.00.


author: Per Curiam.

text:
    (No. 75-CC-0016
    County Of Johnson, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 6, 1978.

    Mary Jane Reynolds Schaumleffel, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the joint stipulation of the Claimant, County of Johnson, and the Respondent, State of Illinois, and the Court, being fully advised in the premises find that this case arises pursuant to Ill.Rev.Stat. 1972, Ch. 53, paras. 8 and 31, and that Claimant is entitled to reimbursement for State’s Attorneys fees of $30.00 per case and County Clerk’s fees of $20.00 per case as follows:

72- CF-33 People v. Elmer A. Holt $50.00
73- CF-2 People v. Michael Zito 50.00
73-CF-8 People v. Monroe Hunter 50.00
TOTAL $150.00

It is hereby ordered that the parties’ presence at a hearing and the filing of briefs is waived and in pursuance of that statutes, State of Illinois, as set out above, based on the Claimant’s complaint and attached bill of particulars, as revised by the parties and agreed and stipulated thereto, an award is hereby entered for Claimant in the amount of $150.00.


text:
    (No. 75-CC-0044
    Eugene Grosko, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 8, 1978.

    Michael J. Hennessy, of Hennessy, Faraci & Tassone, Attorney for Claimant.
    William J. Scott, Attorney General; William Karaganis, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant filed an action in tort against Respondent seeking to recover $50,000.00 in damages for an injury sustained in a motorcycle accident on October 20,1973, allegedly caused by a hole in Harlem Avenue near the intersection of 71st Street in Bridgeview.

Claimant alleges he was southbound on Harlem Avenue at approximately 12:30 a.m. when he struck a defect in the road causing him to lose control of the motorcycle and run into a car.

Claimant has also filed suit in the Circuit Court of Cook County, Illinois alleging substantially the same cause of action against the Village of Bridgeview. This suit also contained another count against C. W. Transport Co. which, among other things, charged that the negligence of C. W. Transport Co. was responsible for causing the alleged defect in Harlem Avenue.

The testimony of Claimant is, to say the least, inconsistent. In one instance he alleged that he travelled the road prior to the accident at least five times per week. In another instance, he stated he had travelled it at least two times per week for a period of one year. In any event, according to Claimant’s testimony, he was or should have been familiar with the area in question. He further testified that the highway where the accident took place was, in his own language, “all chewed up.” He alleges there was a large-size hole at least 16 inches deep and approximately one or two feet wide.

On the night in question, Claimant stated he was travelling between 30 and 40 m.p.h. when he struck the defect, lost control of his motorcycle and travelled approximately 200 feet before he “fishtailed” in the back of a car that was stopping at the intersection ahead of him.

Claimant suffered a fracture to his left leg. An x-ray revealed a fracture of the mid shaft of the tibia. The wound was cleansed, a closed reduction was performed and a long leg cast was applied. He was discharged from the hospital on October 23,1973, and on December 4,1973, the cast was removed.

In the complaint filed against the C. W. Transport Co. and the Village of Bridgeview, Claimant alleges that the defect was caused by the C. W. Transport Co. which caused sand, gravel and other debris to be put on the road. This suit was dismissed by the Circuit Court of Cook County.

The evidence is inconclusive as to whether or not there was a hole in Harlem Avenue as alleged by Claimant. Two photographs taken within one month of the accident show no hole but do show some repairs had been made.

Joseph J. Kostur, Jr., District Safety and Claims Manager for District One of the State of Illinois Department of Transportation, testified for the Respondent. From looking at the photographs, Mr. Kostur testified a patch had been placed over the hole but that from the deteriorated condition of the white line along the curb side, the patch had to have been in existence “a considerable period of time,” or “three to six months.” He further testified that his office had not received any complaints about the roadway, which would have happened if there had been a hole the size Claimant alleges.

In Mr. Kostur’s testimony, he stated the area was bumpy and that if there was a hole in the road, it would have to have been extremely small in size and not over one inch deep. He further testified it would take from 50 to 60 feet to stop a motorcycle travelling 30 to 40 m.p.h., a distance which is considerably shorter than the 200 feet Claimant went after striking the alleged hole in the pavement.

If there was such a hole, as contended by Claimant, then with his familiarity of the area he should have been well aware of the condition of the road. If he was aware of it, driving at the speed of 30 to 40 miles per hour would place him in a position of having, by his own negligence, contributed to the accident.

This Court has repeatedly held that where Claimant has failed to prove he was free from contributory negligence, he cannot recover in 29 Ill.Ct.Cl. 440 and 29 Ill.Ct.Cl. 133.

In 29 Ill.Ct.Cl. 136, the Court made the following statement:

“The State is not an insurer against all accidents, which may occur by reason of the conditions of its highways. However, the State is negligent, if, having knowledge of dangerous conditions on its highways, it fails to warn users of the highways of such dangerous conditions.”

In the present case, there is no evidence of any kind or character indicating the hole in the pavement existed or that the State had, or should have had, knowledge of the same by reasonable supervision. On the contrary, the Safety Manager testified they had not been in receipt of any complaints that a dangerous condition existed, and they had absolutely no knowledge of a dangerous condition existing.

This Court has held that where Claimant has knowledge of a dangerous condition, then he cannot recover in 29 Ill.Ct.Cl. 251.

Respondent is not an insurer of either the condition of all roadways within its jurisdiction and control, or the safety and well-being of all persons travelling thereon. Rather, the Respondent is chargeable only with maintaining its roads in a reasonably safe condition for the purpose for which they are intended. Schuck v. State of Illinois, 25 Ill.Ct.Cl. 209; Weygandt v. State, 22 Ill.Ct.Cl. 498.

In order for Claimant to recover, he must prove by a preponderance of the evidence that Respondent breached its duty, that the breach proximately caused the injuries complained of, and that he was free from contributory negligence in 30 Ill.Ct.Cl. 417. See also 30 Ill.Ct.Cl. 639.

Claimant having not proven the necessary elements to recover, claim is hereby denied.


text:
    (No. 75-CC-0231
    David L. Harmon, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 5, 1978.

      Richard G. Hamper, Attorney for Claimant.
    William J. Scott, Attorney General; Martin A. Soll, Assistant Attorney General, for Respondent.
   Holderman, J.

This is a claim for loss of certain items of personal property stolen from Claimant’s home in Elburn, Kane County, Illinois on June 20,1974, by two boys who had escaped from the St. Charles School for Boys, St. Charles, Illinois.

It is stipulated by the parties hereto that the only issue before the Court would be .the amount "of damages involved.

On June 20, 1974, Claimant returned to his home from work at about 5:30 p.m. and found two boys in it who admitted to Claimant that they were from the Boys School. They fled through a window and Claimant notified police.

Claimant and his wife later found the boys had stolen the following items, with the values fixed by Claimant:

Aquamarine ring in solid gold setting $650.00
Amythest ring in solid gold setting 400.00
Gold band 40.00
Topaz birthstone ring 10.00
Class ring 25.00
Garnet ring with gold band 100.00
Pearl necklace and earrings Browning 22 Rifle S.N. Pair of slacks and T shirt 60.00 84.00 6.00
$1,375.00

Claimant’s measure of damages is the market value of the stolen items on the day of the theft.

It appears that Claimant did sustain some loss as a result of the activities of the escapees from the Illinois institution and there is some evidence on which to base a finding of loss.

In considering this case, the Court bears in mind the following quotation from Hunter, Trial Handbook for Illinois Lawyers, 4th Edition, Chapter LXXX, General Rules relating to Damages, Sec. 80:5, page 815:

“Damages are not rendered uncertain because they are uncertain in amount, as distinguished from those which are too uncertain to be recoverable because they are not the certain results of the wrong that has been committed.”

There is evidence that $5.00 was paid for the slacks and $1.00 for the T-shirt at the Montgomery Ward store in St. Charles, and that these items were used at the time of the theft. There is also evidence that the pearl necklace and earrings were purchased for $60.00 wholesale in 1970. The evidence as to the value of the remaining items of jewelry was based on an estimate from two jewelers, one in Aurora and one in St. Charles, from descriptions given them by Claimant’s wife, but the quality of this evidence does not justify an award of substance.

Claimant testified that the Browning rifle was purchased in 1963 from a military gun club in Germany and he thought $84.00 was a fair value for it. He offered in evidence a page from a 1973 Sears catalog in which a similar rifle was offered for sale new at $124.50.

It is clear that there was no contributory negligence on the part of Claimant and it is also clear that the loss sustained was the result of negligence on the part of Respondent.

An award is hereby entered in favor of Claimant in the amount of $350.00 for items stolen from his home.


author: Poch, J.

text:
    (No. 75-CC-0314
    Alice Wightman, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 26,1978.

   Poch, J.

On October 15, 1974, a claim was filed by Alice Wightman in which she seeks to recover damages for injuries sustained by reason of tripping or falling over a metal divider which separated the grass from the pavement, at the Abraham Lincoln Tomb State Memorial in Oak Ridge Cemetery, Springfield, Illinois.

The facts of the case are as follows:

On June 24, 1973, Claimant and her husband, Charles W. Wightman, went to Lincoln’s Tomb at about 10:00 a.m. on a clear day to take a picture of the bust of Lincoln. Claimant testified that she could not get the bust focused properly so she stepped back and fell backwards, sustaining injuries to her right wrist and her gums.

Claimant stated that the cause of her fall was a metal rail along the blacktop or concrete.

At the hearing before the Commissioner, the Respondent called two witnesses on its behalf who testified as follows:

Eva M. Best, employee of State of Illinois, who was working at Lincoln’s Tomb on the date of the accident, stated that she asked the Claimant “What happened to her” and Claimant answered her by stating “Well, if I had been watching where I was going, I wouldn’t have fell.”

Arlie Harris, employed as a tour guide of Lincoln’s Tomb, who testified that the Claimant, in response to the question as to how the accident occurred, stated, “I tripped and fell.”

This Court has held that the State of Illinois is not an insurer of safety of persons who visit its parks and recreation areas.

Rather, visitors to State parks are invitees to whom the State owes a duty of reasonable care in maintaining the premises. The Court refers to, Damermuth v. State 25 Ill.Ct.Cl. 353, 356; Kamin v. State 21 Ill.Ct.Cl. 467.

To recover on her claim, Claimant bears the burden of establishing by a preponderance of the evidence that Respondent breached its duty of reasonable care, that she was free of contributory negligence, and that the negligence of Respondent proximately caused her injury.

The Court finds that Claimant has failed to establish that Respondent was negligent in maintaining the walkway on which she had her accident. Claimant offered no evidence to show that Respondent had actual notice of the condition of the metal divider separating the two paved areas. No grass covered the metal divider.

Nor did the Claimant offer any evidence from which the Court could conclude that the State had constructive notice of the condition of the walkway

Respondent may be charged with constructive notice of a dangerous condition when, from all the circumstances in a case, it is determined that Respondent should have been aware of the existence of the condition in the exercise of reasonable care as pointed out in Joyner v. State 22 Ill.Ct.Cl. 213.

There being no proof that Respondent was negligent, this claim is hereby denied.


text:
    (No. 75-CC-0361
    Walter L. Scoggins, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 1, 1979.

   Polos, C. J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated.

On March 13,1974, Claimant was transferred from the Menard Correctional Center to the Joliet Correctional Center. During this transfer, some of Claimant’s personal property was lost through no fault of his own, including one Panasonic Radio valued at $20.00. Upon his return to Menard Correctional Center on April 30, 1974, a Norelco electric shaver valued at $20.00 was lost through no fault of Claimant.

In addition, Claimant has established that four personal photographs, which he valued at $10.00 each, were lost while in the possession of the Department of Corrections.

This Court has often held that the State of Illinois holds the duty to use reasonable care in safeguarding the property of inmate’s, when that property is placed in its possession as a bailee. Claimant has established that the foregoing items of property were in the actual physical possession of the State of Illinois when they were lost. A presumption therefore arises that Respondent was negligent in maintaining Claimant’s property, and Respondent has come forward with no evidence to rebut that presumption.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $80.00.


text:
    (No. 75-CC-0544
    Helen Bruszkiewicz, Claimant, v. State of Illinois, Respondent.

      Opinion filed July 24, 1978.

    Bradley, Bradley, Lyon & Nedderman, Attorneys for Claimant.
    William J. Scott, Attorney General; James O. Stola, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant heretofore filed a claim against the State of Illinois alleging that while she was a patient at the Chicago Read Mental Health Center on December 3, 1973, she was a victim of a rape attack. Claimant alleges that on the night in question, she, in the company of other females, went to the gymnasium on the grounds of the Center to play volleyball. At the Center, she alleges she was pulled out of the auditorium by one James Hatter, Theresa Chism and one other girl and was taken to the back of the gymnasium where the three individuals held her on the ground, removed her clothing, and James Hatter then had sexual intercourse with her against her will. She alleges she then went back to where she lived and reported the rape to her counselor, and she was then taken to the medical building for an examination. Before the medical examination, however, she left the Center and returned to her home but returned to the Center the following day where she was examined medically.

Claimant further alleges she is now “very paranoid of black men” and that she has nightmares almost every week.

An inmate of the Chicago Read Mental Health Center, Monticello Coleman, was called as a witness on behalf of Claimant and he testified he was a patient at the facility and witnessed the assault on Claimant. He testified he went back to the gymnasium to notify the security guard who laughed, thinking what he told him was a joke.

Respondent offered no testimony regarding the occurrence but submitted into evidence five exhibits pertaining to Claimant’s confinement at the Health Center.

Briefs were not submitted by either Claimant or Respondent.

The record indicates that Claimant had psychiatric problems before and since the incident in question.

I have made a search of the records of the Court of Claims to see if there were any guidelines in cases of this nature. I have also checked volumes back to the year 1948 and find no cases similar to the one at hand to give some basis for fixing the amount of the damages.

It appears from the record that Claimant was assaulted and raped and that Respondent was negligent in failing to provide adequate protection and security for its inmates, particularly Claimant herein.

In view of all the circumstances, the Court believes an award of $2,500.00 is fitting and proper in this case.

An award is hereby entered in favor of Claimant in the amount of $2,500.00.


text:
    (No. 75-CC-0554
    George J. Kutselas, Claimant, v. State of Illinois, Respondent.

      Opinion filed July 28,1978.

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

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

Claimant had been employed by State of Illinois Department of Revenue performing duties as Revenue Inspector III. On January 21,1969, he had reached pay schedule referred to as Step 5 for the position. This amounted to $675.00 a month.

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

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

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

It was agreed that Claimant is entitled to compensation from July 1, 1969, to August 1, 1971; but the amount is in dispute. It was further agreed that Claimant’s outside earnings for this period were $13,486.00, and that this should be set off from any salary he was entitled to.

The Claimant argues that the correct monthly salary from July 1, 1969, was $778.00 a month, being the rate for Step 5.

Respondent contends that the proper monthly rate was $625.00, being the rate for Step 1 at that time.

When Claimant was laid off in January, 1969, he was receiving $675.00 a month, being rate at Step 5 for his position.

If Claimant is correct, he is entitled to $6,481.00. If Respondent is correct, Claimant is entitled to $3,114.00. This assumes also that the record is clear that the correct set off is $13,486.00.

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

The State argues that to determine the salary at Step 5 rate of $778.00 a month from July 1,1969, would be tantamount to an increase of $103.00 over what he was making in January of 1969 when laid off. Further, it argues that upon the creation of the posts of revenue collection officers on July 1,1969, the majority of persons hired were employed at $625.00 per month, which was the Step 1 rate.

Claimant argues that the Circuit Court had held that Claimant was entitled to be reinstated under the title of revenue collection officer I on July 1,1969. He further points out that the salary for Step 5 for revenue collection officer I was $778.00 as appears in the pay plan introduced in evidence; that the pay plan provided for a certain increase effective September 1,1970; that, therefore, his back salary should be figured at $778.00 a month starting July, 1969, to September, 1970, and at the rate of $825.00 a month from September 1,1970, to August 1, 1971, the cut-off date of his claim.

Under the position taken by Respondent, Claimant would be compelled to take a reduction in salary upon his reinstatement, since he was making $675.00 a month when laid off and the pay for Step 1 after July 1, 1969, was only $625.00 a month.

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

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

Our position is, based on the record before us, that since the duties of the new job and the old job were substantially the same, as the Court held, that the new job was a re-creation of the old job. Therefore, Claimant is entitled to a Step 5 rate of $778.00 a month starting July 1, 1969, with increases effective thereafter.

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

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

The proof in this case established that the Claimant had earned $13,486.00 as outside earnings during the period of his lay off. Deducting this from $19,967.00, the total lost salary at Step 5 rate, leaves a balance due him for back salary of $6,481.00.

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

Claimant is hereby awarded the sum of $6,481.00 in payment of back salary, and said award will be subject to any and all Federal income tax and State income tax deductions.


text:
    (No. 75-CC-0634
    Inex Williams, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 15, 1979.

    Joel M. Greenburg, Attorney for Claimant.
    William J. Scott, Attorney General; James O. Stola, Assistant Attorney General, for Respondent.
   Holderman, J.

This is an action to recover for personal injury sustained by Claimant on December 16,1972, when she fell into a hole in the basement of an apartment building owned by the Medical Center Commission.

From the evidence introduced at the hearing on June 11,1976, it appears that Claimant was a tenant in an apartment building located at 525 South Bell. Avenue, Chicago, Illinois.

On December 16, 1972, the lights in Claimant’s first floor apartment went out. Claimant obtained fuses from her apartment and then proceeded to the apartment of Mrs. Erie Stevenson, also a tenant, to get the keys for the basement in order to change the fuses. Since Claimant had never been to the basement prior to this time, Mrs. Stevenson gave her directions to it. Claimant then proceeded to the basement with the keys, fuses and a book of matches. Upon reaching the basement, the Claimant unlocked the door and started searching the wall for a light switch. After taking one step, Claimant fell over a number of cans and into a hole, thereby injuring herself.

The pictures introduced in evidence on behalf of Claimant disclose a very hazardous situation. The fuse box is adjacent to an open sump pump and directly beneath the fuse box are a number of paint cans. To get to the fuse box, it was necessary to maneuver around several of the empty paint cans and if a person stepped too far, he would fall into the sump. The pictures also show a debris of hoses, buckets, and other materials lying on the floor close to the fuse box.

It appears there was no other alternative for the Claimant — she could either go without electricity in her apartment or try to replace the blown fuse. She did what any reasonable person would do under the same circumstances — tried to restore electricity to her apartment — and in doing so, she either stumbled or fell over the debris around and under the fuse box.

Claimant sustained an injury to her right knee and also to her chin. Six stitches were required to close the wound on her knee which was sore for approximately one month. There is presently a keloid scar on her knee. Her knee was bandaged for approximately three weeks and at the time of the hearing was still discolored.

At the time of the injury, Claimant was on Public Aid so there was no loss of wages as a result of the injury.

Respondent alleges that Claimant was guilty of contributory negligence and was not in the exercise of due care and caution for her own safety and that as a result of the lack of precautions on her part, the injury complained of resulted.

Respondent relies on the exculpatory clause in the lease between Claimant and Respondent. It did appear that Claimant, being on Public Aid and desperate for housing, would sign anything presented to her in order to secure shelter. It was a case of desperation and limited resources that led to the signing of the lease.

The sole question before the Court, therefore, is whether Claimant acted in a manner similar to the way other persons would act under similar circumstances.

This occurrence took place late in the afternoon in December and without janitorial services or management being present. She was left to her own resources to try and restore electricity because her lights and other facilities were dependent upon said electrical power.

It is the Court’s opinion that this Claimant did what any other reasonable person would do under similar circumstances; that is, try to restore electrical power and service. As a result of her efforts, she sustained the injuries complained of.

An award is hereby entered in favor of Claimant in the amount of $2,500.00.