text:
    (No. 80-CC-0186
    Brian De Van, Claimant, v. The State of Illinois, Respondent.

      Order filed October 4, 1982.

    William J. McGann, for Claimant.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court on joint stipulation of the parties to an award of $1,800.00 in favor of Claimant as and for personal injuries suffered by him on August 10, 1978. The Court being fully advised hereby finds as follows:

1. On August 10, 1978, at 2:00 a.m., Claimant, a Chicago police officer, pulled a traffic violator to the east shoulder of the northbound local lanes of Interstate Highway 94, the Dan Ryan Expressway, at approximately 3100 South in Chicago, Illinois.

2. Claimant exited his squad car and walked to the violator’s vehicle along the driver’s side of both cars. After issuing a.warning, he returned to his squad car by the same route.

3. En route to his squad car, Claimant stepped into a broken storm sewer grate situated in the rain gutter between the shoulder and the extreme right hand travelled lane.

4. As a result of stepping into the broken sewer grate, Claimant suffered contusions and sprains of his left ankle, and cervical and lumbar spines.

5. Claimant did not see said grate because he was concerned with avoiding being hit by oncoming high-speed traffic.

6. Although pedestrians are specifically prohibited by law from entering upon limited access highways, Claimant was, as a law enforcement officer engaged in the performance of his duties, lawfully upon the highway at the time of the accident.

7. The storm sewer was within the maintenance jurisdiction of the Illinois Department of Transportation.

8. That Claimant lost no wages but incurred $635.00 in medical bills, all but $73.00 of which were paid out of pocket and uncompensated by insurance.

9. That based on the nature and extent of Claimant’s injury and the amount of proven special damages, $1,800.00 is a fair award for full and final settlement of the claim.

10. That notwithstanding this order, this Court does not hold that Respondent owes a duty to maintain its highways in a safe condition for pedestrians not lawfully upon them.


source: Caselaw Access Project

author: Roe, C.J.

license: Public Domain

text:
    (No. 80-CC-0390
    Board of Education of the Illinois Valley Central Unit District #321, Peoria County, Illinois, Claimant, v. The State of Illinois, Respondent.

      Opinion on motion for summary judgment filed July 10, 1981.

      Supplemental opinion filed August 12, 1982.

      Order on motion to reconsider filed December 21, 1982.

    Kerr and Edmonds, P.C. (John P. Edmonds, of counsel), for Claimant.
    Tyrone C. Earner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause is before the Court on Claimant’s motion for summary judgment, the response thereto filed by the Respondent, and Claimant’s motion to strike that response. On May 12, 1981, the Court heard oral arguments on the motions.

The circumstances which gave rise to this claim were set forth in the complaint as follows. Under the authority granted by section 10 — 23.4 of the School Code (Ill. Rev. Stat., ch. 122, par. 10 — 23.4), the Claimant owns, operates, and maintains a number of school buses for the transportation of students in its district. Claimant maintained on its payroll a full-time director of transportation and other full-time personnel to administer its transportation program. Their duties essentially were said to include: (a) developing bus routes and assigning students, (b) writing specifications for bidding on new buses, (c) arranging the purchase of new buses and sale of old buses, (d) recruiting and training drivers, (e) maintaining accounting functions for the transportation fund, (f) maintaining records of total days of transported pupil enrollment (over or under lh miles, total miles travelled, and individual pupil bus riders), (g) administering to the opération and maintenance of a private fleet, (h) administering transportation insurance programs, (i) handling parental complaints, and (j) handling extra-curricular activities.

Pursuant to section 17 — 8 of the School Code (Ill. Rev. Stat., ch. 122, par. 17 — 8), Claimant commenced making charges to the transportation fund in the 1967-1968 school year for salaries and related expenses. For the school year 1974-1975 the audit section of the Illinois Office of Education for the first time disallowed $42,842.03 of Claimant’s charges and reduced Claimant’s claim for that year by that amount. Similarly, for the school year 1975-1976 the audit section disallowed $25,102.91 of charges and reduced the claim by that amount for a cumulative total of $67,944.94. Claimant has previously presented and appealed its claim to the transportation fund audit section which denied its claim. A similar suit filed in a circuit court was dismissed for lack of jurisdiction.

The complaint does not clearly indicate the reason relied upon for the denial of the charges. It states that no challenge was made as to the amounts of administrative salaries or other amounts. Attached to the complaint is a letter from Joseph M. Cronin, State Superintendent of Education, which the complaint describes as being a rejection letter. On its face however, it says very little. Without more its relevance is questionable. Also attached to the complaint was what was described as the “Illinois Financial Accounting manual for Local School Systems; circular series A, No. 246,1969 and revised January 1972, Section IV, subsections 501.0, 501.1, 502.16, 503.1, 507.1 and 512.1.” However the Court has checked with the clerk’s office and finds that only copies of subsections 501.0, 501.1, 501.2, 501.3, 501.7, and 501.9 were actually filed. Regardless, Claimant states that these are instructions to the school districts in this State for salaries in various instances to be pro-rated. The relevancy of these directives is not stated.

Based upon this information the complaint conclusively alleges that Respondent has relied upon inconsistent and unreasonable standards in denying Claimant’s charges because of an alleged discriminatory effect of treatment of large and small school districts. It also concludes that said denial is clearly violative of the legislative mandate of section 17 — 8 of the School Code. Ill. Rev. Stat., ch. 122, par. 17 — 8.

The Respondent filed no answer to the complaint other than a general denial of the facts which occurred by lapse of the 60 days pursuant to Rule 10.

The motion for summary judgment and accompanying memorandum adds little information as to why the claims were disallowed. It states:

“Apparently, the only authority for disallowing these claims is an internal policy determination made by Respondent’s audit section and not pursuant to any formal rulemaking procedure. In fact, it is apparently Respondent’s position that its new policy, which became effective in the 1974-1975 school year, provides that salary expenditures for personnel other than school bus drivers and maintenance personnel are nonclaimable.” (Claimant’s own emphasis)

Nine months later an objection to the motion for summary judgment and a renewal of said motion were filed, the two apparently having crossed in the mail. Claimant subsequently filed a motion to strike Respondent’s objection on grounds of tardiness. Although Respondent’s objection was clearly filed beyond the time limit, we reluctantly deny the motion to strike in the interests of judicial economy and efficiency. This case presents a situation not heretofore faced by the Court. By looking strictly at Claimant’s pleadings we would be forced to remand the case to a commissioner for a full hearing because there is insufficient information contained in said pleadings to sufficiently apprise us of the facts involved and to convince us that Claimant is entitled to judgment as a matter of law. By allowing the objection to be filed much time and expense will be saved.

From the objection to the motion for summary judgment which is 24 pages long including the departmental report we are able to ascertain why the Board of Education denied the claim. Respondent apparently relied on section 29 — 5 of the School Code (Ill. Rev. Stat., ch. 122, par. 29 — 5) as authority for determining what costs it would and would not pay. According to that statute the State Board of Education shall prescribe uniform regulations for determining standards for reimbursement for transportation as described in said section, forms of cost accounting and standards for determining reasonable depreciation. After having reimbursed Claimant for the items which are the subject of this suit for many years, the Board issued what is termed “Instructions for Completing Annual Claims for Pupil Transportation for the 1974-1975 and 1975-1976 school years.” It was upon these instructions that Respondent relied to disallow the costs claimed.

We find that Respondent exceeded the authority granted by section 29 — 5 of the School Code (111. Rev. Stat., ch. 122, par. 29 — 5) in utilizing it to determine on its own what costs it would and would not reimburse. That statute sets forth a formula for reimbursement. Specifically it sets out which pupils are covered and how to arrive at the amount of reimbursement. In several places it refers to costs of transportation. As Claimant correctly points out, the costs of transportation are defined in section 17 — 8 of the School Code (Ill. Rev. Stat., ch. 122, par. 17 — 8). It provided as follows:

“Section 17 — 8. Transportation costs paid from transportation fund. Any transportation operating costs incurred from transporting pupils to and from school and school sponsored activities and the costs of acquiring equipment shall be paid from a transportation fund to consist of moneys received from any tax levy for such purpose, state reimbursement for transportation, all funds received from other districts for transporting pupils and any charges for transportation services rendered to individuals or auxiliary enterprises of the school.
For the purpose of this Act ‘transportation operating cost’ shall include all costs of transportation except interest and rental of building facilities.”

The section of the School Code relied upon by Respondent for authority to determine which costs would and would not be reimbursed does not purport to define what costs shall be reimbursed. It provides for how the costs, as defined in section 17 — 8, shall be reimbursed and how much of these costs shall be reimbursed. The State Board therefore was only authorized to set up regulations regarding standards for applying the formula. The legislature by section 17 — 8 has already stated what costs would be covered and nowhere does the statutory scheme provide authority to the State Board to do so.

The next issue is whether or not the type of costs which are the subject of this claim are within the definition of section 17 — 8. These costs are for a full-time director of transportation and other full-time personnel whose duties were described above. These types of items do not represent interest or rental of building facilities. Therefore they are proper items for compensation. Also claimed are charges relating to storage of buses when not in use. There is nothing in the record to indicate whether or not the buses were stored in rented building facilities. If so then they would not be compensable; if not then they would be.

The fact that the State is not responsible for all costs of school district transportation systems and that there are other sources from which they can be paid (as stated in section 17 — 8) is not relevant to the issues of this claim other than the amount of damages. Section 17 — 8 states what costs the formula set out in section 29 — 5 applies to. The State is responsible for that amount. The balance shall be obtained from other sources. The same is true with respect to the fact that the State Board is not involved in school district budgeting.

We also note that the expenses that are the subject of this claim were not disallowed for the school districts in Du Page County, yet the statute relied upon by the State Board to disallow these costs to the other districts explicitly requires that uniform regulations be formulated. An exemption for one county is not uniform application. Apparently this exemption arose out of a decision of the circuit court of Du Page County entitled Board of Education, Salt Creek School District No. 48, Du Page County, Illinois v. Bakalis. Insofar as this decision purports to order payment of State funds for violations of the School Code it is void for lack of jurisdiction. Therefore, contrary to the State Board’s interpretation, it is not binding in that county or any county.

We hold that Claimant is entitled to summary judgment on the issue of liability alone. We find that the record presently does not contain sufficient information for us to determine the amount of damages. The data submitted as proof of the amount of damages is inconclusive, vague, and largely illegible. We feel that an accurate measure of damages would best be ascertained at a hearing before a commissioner or by stipulation. The evidence presented should include proof as to exactly what the cost incurred was, the amount of this cost, and the amount compensable by the State as determined by application of the formula in section 29 — 5 of the School Code. (Ill. Rev. Stat., ch. 122, par. 29 — 5.) Any objections to said costs, arising out of an audit or otherwise, not rendered irrelevant by this opinion should be made at the hearing.

The clerk of the Court of Claims is hereby directed to assign this claim to a commissioner.

SUPPLEMENTAL OPINION

Roe, C.J.

On July 10, 1981, an opinion was filed in this matter following oral argument before the full Court wherein we granted Claimant’s motion for summary judgment on the issue of liability and remanded the case to a commissioner for a hearing on the issue of damages.

Prior to the start of the hearing, a stipulation as to the amount of damages was entered into and read into the record at the hearing. With respect to the 1974-1975 school year, it was agreed that the costs incurred for K through 12 were $18,223.53 representing salaries, $5,400.00 representing contractual services, and $237.11 representing travel. Those three figures total $23,860.64. A proration figure of 80.591864 per cent was applied, reducing the sum to $19,229.73. With respect to the same school year, the parties stipulated to the following figures for the area of special education: $1,462.30 for salaries and $600.00 for contractual services, for a total of $2,062.30 to which a proration percentage of 97.265885 was applied, reducing the sum in this area to $2,005.91. The total of the two amounts for the 1974-1975 school year was then stipulated to have been $21,235.64.

With respect to the 1975-1976 school year, it was agreed that the costs incurred for grades K through 12 were $20,190.35 for salaries, $5,400.00 for contractual services, and $282.60 for travel. The sum of those three figures is $26,190.35 to which a proration of 77.819408 per cent was applied, reducing the sum to $20,381.18. Also in the 1975-1976 school year, in the area of special education, the cost incurred for contractual services only was $600.00 to which a proration of 91.48656 per cent was applied, thus reducing the amount to $548.92. The total of both figures for 1975-1976 is $20,930.10.

The combined total of damages for both school years is $42,165.74. In our opinion of July 10, 1981, we directed the clerk of the Court of Claims to assign the case to a commissioner to ascertain the type of costs incurred, the amount of the costs, and the amount after the proration formula was applied, suggesting that this evidence be obtained at a hearing or by stipulation. While we are not bound by stipulations between parties such as the one at bar, we will not reject them out of hand. Based upon the record before us we concur in the amounts arrived at.

However, subsequent to our finding of liability in our opinion of July 10, 1981, Respondent has shown that an insufficient amount of funds lapsed from which this claim could have been paid. Because of the nature of the funding scheme involved in this matter, all of the moneys appropriated for such expenditures have been exhausted. When the combined costs of all the school districts in the State exceed the amount appropriated, section 29 — 5 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 29 — 5) provided for apportionment and that was the situation for the years involved in this case. Had the expenses for which this claim has been made not been rejected by Respondent, Claimant would have been compensated at the prorated per cent. Because these expenses were not allowed, the funds were divided up accordingly, giving the other districts more than they were entitled to. Therefore, despite the equities involved, we are constrained to deny this claim.

ORDER ON MOTION TO RECONSIDER

Roe, C.J.

This matter is before the Court on the Claimant’s motion to reconsider and the State’s response thereto, due notice having been given, and the Court being fully advised;

On July 10, 1981, an opinion was filed in this case following oral argument before the full Court wherein we granted the Claimant’s motion for summary judgment on the issue of liability or in the nature of declaratory relief and remanded the case to a commissioner for a hearing on the issue of damages. On August 12, 1982, we issued a follow-up opinion wherein we found that the Claimant suffered damages in the amount of $42,165.74. However, because of the funding scheme involved, all of the money appropriated by the legislature with which this claim could have been paid had been exhausted. Therefore, despite the inequities we were constrained by law to deny the claim.

Claimant promptly moved for reconsideration and oral argument before the Court en banc was again held. The circumstances giving rise to this claim have been recited in our two previous opinions and it is unnecessary for us to review them here. Rule 22 of the Rules of the Court of Claims, dealing with rehearings, provides in pertinent part as follows:

“The petition shall state briefly the points supposed to have been overlooked or misapprehended by the Court, with authorities and suggestions concisely stated in support of the points.”

We will address the points raised in the motion for reconsideration and at the oral argument separately.

First, Claimant pointed out that it was the only school district beset with the problem of wrongful denial of reimbursement of funds. Due to the time period involved no other district can now come before us and make a similar claim and no other claims are pending. It is a unique situation now. We agree with the Claimant that there exists no flood of litigation aspect in this situation but that is not a problem. The problem is lack of appropriations to pay the claim. Were there sufficient monies lapsed, 100 or so additional claims would make no difference.

Claimant also referred to the hearings on damages before the commissioner to whom the claim was assigned following our opinion of July 10, 1981. It pointed out that there was a stipulation entered into as to the amount of damages. It also alluded to a recommendation by the commissioner which was purported to be in its favor. It is the policy of this Court that the judges do not make public recommendations of commissioners. Although we are not bound by stipulations by the parties or commissioners’ recommendations, we did find that Claimant was damaged in the amount stipulated to. (See our opinion of August 12, 1982.) This point was not overlooked or misapprehended. There were no funds remaining out of which we could make an award.

Claimant also pointed out that it made every effort to proceed with this claim as fast as it could but there was substantial delay on the part of the Respondent. It suggested that if perhaps the claim had proceeded more quickly the money would still have been available. This claim was filed on October 9, 1979. Because of the apportioned payout situation this claim would have had to have been disposed of by this Court before the funds had been exhausted. This date does not appear in the record. We would have had no authority to enjoin the Respondent from making the payment anyway. Regardless, the argument is irrelevant because there are no such funds available now and we have no authority to order them paid back, reapportioned, and paid out again nor can we order Respondent to issue credits or make deductions to future reimbursements. That Claimant may have had the funds at one time and the Respondent may have taken them away, as Claimant represented to the Court at oral argument, also does not change the predicament. Claimant further represented to us that based on our first opinion in this case Respondent did pay Claimant the amounts sought for the next three school years subsequent to the two that are the subject of this claim. While these years are not at issue here, we can only speculate that the reimbursement was sufficiently funded that no apportionment need be made and sufficient funds remained in some nonlapsing account. This too does not change the matter before us now.

None of the points raised is sufficient to overcome the basis of our opinion of August 12, 1982, wherein we concluded, consistent with our opinions where there was an absence of or inadequate amount of funds remaining for which claims are made, that in such a situation we are constrained by law not to make an award. Our conclusion is consistent with article VIII, section 2b of the Constitution of 1970 and section 30 of the State Finance Act (Ill. Rev. Stat., ch. 127, par. 166). We have no authority to appropriate funds on our own to satisfy the requirements of the School Code. (Moorleghen v. State (1978), 33 Ill. Ct. Cl. 159.) It is a matter of legislative prerogative.

Motion for reconsideration denied.


author: Poch, J.

text:
    (No. 80-CC-0492
    Susan Haggard and James Witzel, Claimants, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed February 26, 1982.

      Opinion filed June 13, 1983.

    McRoberts, Sheppard, McRoberts & Wimmer, P.C. (William L. Wimmer, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Poch, J.

This matter comes before the Court on the motion of the commissioner to dismiss Count II of the complaint as to Claimant, James Witzel, for failure to appear before Commissioner Robert J. Hillebrand for a hearing on July 1, 1981. Due notice having been given to James Witzel.

It is hereby ordered that Count II of the Complaint as to Claimant, James Witzel, be dismissed for failure to appear and proceed at the scheduled hearing on July 1, 1981.

OPINION

POCH, J.

Claimant in this action seeks damages for personal injuries and damages to her personal property when she drove her car into an accumulation of water on a State highway.

At a hearing before a commissioner of this Court, Claimant testified that on Sunday, July 2, 1978, at approximately 10:40 a.m., she was driving her car west on Illinois Route 161 in St. Clair County. She was driving about 50 m.p.h. and was on her way to Belleville, Illinois. It was a clear day. The highway is a two-lane blacktop surface road, and as Claimant approached the intersection of Illinois Route 158, about one-quarter mile east of the intersection, there is a slight depression in Route 161 where Ash Creek flows under the road. This depression was full of water about eight inches deep and 30 to 40 feet long, which covered both lanes of the highway. There were no signs of any kind warning traffic of this condition.

As Claimant approached the intersection, she began to slow down for the stop sign at Route 158. She testified that she first saw the water when she was about three feet from it; before that she did not see anything that would indicate any water standing on the highway. Her car hit the water, lifted off the surface of the road, skidded, rolled over end-to-end once and sideways twice, and came to rest off the road.

Claimant was thrown out of the car about 40 feet and landed face down in a pool of water off the shoulder of the road. She suffered cuts to her neck, a sprained ankle and numerous bruises. She was knocked unconscious for about 15 minutes. She was taken by ambulance to Memorial Hospital in Belleville, where glass was removed from her neck and the lacerations stitched. She remained in the hospital until July 4, 1978. She remained under the care of a neurologist until July 13, 1978, and experienced spasms in her neck for about two months after the accident.

Claimant testified she had never suffered any prior injuries to her neck or shoulder. She now experiences spasms and pain in her neck about once a month, which lasts about two hours. As a result of the accident, she has scars on her neck and left shoulder.

Claimant testified that she had driven on Route 161 through the site of the accident on her way to work twice a day for a period of two months prior to July 2, 1978, and had never seen water standing in this area during that time.

The site of the accident is immediately south of Scott Air Force Base. Records from Scott Air Force Base showed that 1.72 inches of rain fell on July 2, 1978.

George Huckman, a civil engineer with the Illinois Department of Transportation, testified that he had been responsible for field maintenance over the area that included the accident scene. He described the drainage condition for a watershed known as Loop Creek, which flows in an easterly direction and lies south of the accident scene.

Ash Creek flows southerly through Scott Air Force Base and into Loop Creek. A record from the Department of Transportation showed that Loop Creek flooded severely enough to close Route 158 about 1.5 miles south of Route 161 on March 13, 21 and 24, 1978, and that Ash Creek flooded also on each of those dates. He expressed his opinion that the 1.72 inches of rainfall recorded at Scott Air Force Base on July 2, 1978, might or could have caused flooding on Ash Creek at the scene of the accident.

The State had adequate warning of the recurring flooding conditions on Route 161 at Ash Creek, yet it failed to place any signs warning of the water over the roadway. National Bank of Bloomington v. State (1980), 34 Ill. Ct. Cl. 23, 25.

The Court finds that the State’s negligence was the proximate cause of Claimant’s accident. The negligence of the State in permitting the water to be on the road was the proximate cause of the accident since there is no evidence of any act of negligence on the part of Claimant.

The uncontradicted evidence shows that Claimant has had pain and discomfort ever since the accident for which she is entitled to recover.

It is the opinion of this Court that Claimant be awarded damages in the sum of eight thousand ($8,000.00) dollars.


text:
    (No. 80-CC-0595
    J. J. Altman & Company, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1982.

    Sterling and Altman, P.C. (Glenn A. Altman, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim arises from an accident which occurred while Respondent’s employee was mowing brush along a public highway. On August 24, 1979, Claimant’s employee was driving an automobile owned by Claimant on Lake Drive along the boundary to Frank Holten State Park near East St. Louis, Illinois. Kevin Ellis, an employee of the Illinois Department of Conservation, was operating a hog mower in the park area adjacent to Lake Drive. Some foreign object, either a rock or piece of wood, was thrown by the mower against the Claimant’s automobile. The cost of repair was $141.00.

Neither party introduced any evidence at the hearing but rather submitted the case by stipulation upon the facts recited above. Claimant argues that these facts support judgment in its favor on the doctrine of res ipsa loquitur.

Respondent, as the owner of the real estate along Lake Drive at the site of the occurrence, had a duty to take reasonable precautions against possible injury or damage to persons on the adjacent highway caused by any hazardous activity on the real estate. (Andronick v. Daniszweski (1932), 268 Ill. App. 543; City of Joliet v. Harwood (1877), 86 Ill. 110; Village of Jefferson v. Chapman (1889), 127 Ill. 438.) The doctrine of res ipsa loquitur may therefore be invoked to allow the trier of fact to infer that Respondent breached its duty to Claimant if the instrumentality which caused Claimant’s damages was under the control or management of Respondent, if Claimant did not contribute to the damages, and if the damage was such that it would not have occurred except for negligence by Respondent’s employee. Smith v. General Paving Co. (1978), 58 Ill. App. 3d 336, 374 N.E.2d 1134.

The facts to which both parties have stipulated show that Respondent had complete control of the mower. No evidence whatsoever was offered as to any action by Respondent to warn about the mowing or to prevent any foreign objects from being thrown by the mower. “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 proper care.” (Feldman v. Chicago Railways Co. (1919), 289 Ill. 25, 34; Westchester Fire Insurance Co. v. State (1972), 27 Ill. Ct., Cl. 327, 329.) No such explanation was offered by Respondent.

It is hereby ordered that damages of $141.00 be and hereby are awarded to the Claimant.


author: Holderman, J.

text:
    (No. 80-CC-0718
    Ervin J. Barker, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 14, 1982.

    William J. McGann, for Claimant.
    Tyrone C. Fahner, Attorney General (James Hofert, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant filed a claim for personal injuries he allegedly suffered as a result of an automobile accident on March 1, 1979.

Claimant testified that on March 1, 1979, he was proceeding in a southerly direction upon the Dan Ryan Expressway at 4900 south in Chicago. At exactly 5:36 p.m., while his yehicle was stopped for traffic, he was struck in the rear by another vehicle. Claimant got out of his vehicle and spoke to the driver of the vehicle which allegedly struck his vehicle in the rear. The other driver denied striking Claimant’s vehicle and left the scene. Claimant noted the type and color of the other vehicle, noted the seal on the vehicle and its license number. A report was later made by Claimant to the Secretary of State and to the police department.

According to Claimant’s testimony, the steering wheel of his vehicle was cracked by the impact and he suffered a headache which persisted for three days. He went to a doctor who prescribed Tylenol. The doctor’s bill was $50.00.

Respondent produced several witnesses, one of them being Tyrone Harris, an auto theft investigator for the Secretary of State, who admitted that the vehicle in question was assigned to him on March 1, 1979. He testified that on that date he was assigned to crowd control at the Secretary of State facility at 157 N. Wells in Chicago and did not leave that facility until 5:46 p.m. He testified that his vehicle had been parked on Wells Street near the Secretary of State’s office all that day, and that during the day, he and fellow investigator, Lawrence Johnson, had an altercation with an individual who was trying to get into the facility after closing hours, and they were forced to eject the offender, who is the Claimant in this cause. Secretary of State Investigator Lawrence Johnson testified that he and Investigator Harris had an altercation that day with an individual, and that he left the facility with Harris about 5:45 p.m.

Anita Hussos, a clerk and typist for the Secretary of State, testified that on March 1, 1979, she left that facility with Investigator Harris at approximately 6:00 p.m., having typed a report of the altercation incident as dictated by Investigator Harris, and that the typing took place between 5:15 p.m. and 6:00 p.m.

Respondent introduced a radio log sheet of the Secretary of State vehicle for March 1, 1979. It indicated that Investigator Harris called in at 5:46 p.m. to report that he was in his vehicle.

The record fails to disclose any. rear end property damage to Claimant’s vehicle nor was there any evidence showing front end property damage to Respondent’s vehicle.

Claimant having failed to prove his case, this claim is denied. Case dismissed.


text:
    (No. 80-CC-0787
    Marian Mills, f/k/a Marian Armstrong, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 17, 1983.

    Kritzer, Stansell, Critser & Whitman, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim comes before the Court upon a joint stipulation of the parties which states as follows:

The State of Illinois and Marian Mills, Claimant in this matter, contracted in 1966 to display Mrs. Mills’ antique storm buggy in the State Fair Farm Museum on behalf of the Department of Agriculture. The buggy was displayed from 1966 until 1970 when the Illinois State Fair Farm Museum was razed. At that time the State of Illinois requested permission to store the buggy in another location until the museum was rebuilt. The buggy was stored in the Buffalo Barn on the State Fair property until 1972, when it disappeared. The buggy was not located in a State Fair property inventory in 1979.

The State of Illinois concedes liability in this matter to the extent agreed upon in the joint stipulation. The State of Illinois and the Claimant agree to the value of the buggy as being $2,000.00. There were attached to the joint stipulation two estimates indicating that $2,000.00 is a fair sum for the buggy. Both parties agree to the granting of an award in the amount of $2,000.00. There has been no other evidence presented, and briefs were waived.

Both parties have agreed that this award will constitute full and final satisfaction of the claim herein or any other claim arising out of the same occurrence.

While this Court is not necessarily bound by a stipulation such as this, it has no desire to interpose a controversy where none appears to exist. The stipulation submitted by the parties appears to be entered into freely and fairly, and its contents appear to be reasonable. The Court, therefore, finds no reason not to accept it and follow its recommendation of an award for $2,000.00.

It is hereby ordered, that the Claimant, Marian Mills, be awarded the amount of $2,000.00 in full and final satisfaction of this claim.


text:
    (No. 80-CC-1415
    Richard and Emily Krueger, Claimants, v. The State of Illinois, Respondent.

      Order filed December 21, 1982.

    Arnold and Kadjan, for Claimants.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter coming before the Court on stipulation of Respondent to the entry of an award in favor of Claimants in the amount of two thousand dollars ($2,000.00) as and for damage to Claimants’ fences incurred by Respondent’s negligent acts or omissions in removing snow from Route 64 adjacent to said fences between January 5 and February 20, 1979, the Court being otherwise duly advised in the premises; now, therefore, it is hereby ordered that Claimants be and are hereby awarded the sum of two thousand dollars ($2,000.00) in full and final settlement of their claim.


text:
    (No. 80-CC-1432
    Edward M. Kafka, Claimant, v. The State of Illinois, and The Board of Trustees of the University of Illinois, and The University of Illinois, Respondents.

      Opinion filed July 1, 1982.

    Mohan, Alewelt & Prillaman, for Claimant.
    Charles L. Palmer, for Respondents.
   Holderman, J.

Claimant alleges a breach of employment contract between himself and the State of Illinois, acting through the University of Illinois, and one of its professors, Rudolph G. Mortimer. Claimant seeks to recover for the full contract amount, less the monies actually received by him, and, in addition, pay for unused vacation and statutory interest.

Claimant, in response to a newspaper advertisement, applied to professor Mortimer for the position of research associate under the supervision of professor Mortimer. Following his application and an interview with the professor, Claimant was appointed to the position by the University of Illinois Board of Trustees for the period of March 26, 1979, to March 25, 1980, at a salary of $14,700.00 per annum. Professor Mortimer testified that Claimant’s duties contemplated at that time were to coordinate activity in five midwestern States regarding a study and experiment on taxicab fleets concerning decelerating lamps on the rear of said taxis.

It developed in 1979 that several of the States selected to participate in this program were not interested and as a result, the program had to be abandoned. Discussions were then held regarding the possibility of the study being conducted in California. Negotiations concerning the possible move centered around cost of living adjustments in Claimant’s salary and travel expenses. The parties could not reach an agreement on these issues so the Claimant did not go to California.

It appears from the record that the personal relationship between Claimant and professor Mortimer began to rapidly deteriorate.

During the pay period from September 27, 1979, through October 20, 1979, a total of $415.89 was deducted from Claimant’s paycheck. Deductions were also made for the pay periods of November 30, 1979, through December 5, 1979, and December 10, 1979, through December 20, 1979, in the total amount of $572.48.

Professor Mortimer authorized and directed the deductions made through December 5, 1979, when he concluded that Claimant was not performing his duties during the hours for which the deductions were made. This conclusion was based primarily upon the fact that Claimant was not at his desk during the hours in question. Professor Mortimer, however, testified that he did not know whether Claimant was working on his project in other places during these hours. The testimony indicated that some of Claimant’s duties did require him to work in places other than his office. Claimant testified that at all times in question he was performing his assigned duties. It therefore appears the deductions made were improper.

The deductions from December 10, 1979, through December 20, 1979, were made because professor Mortimer discharged Claimant in early December. Professor Mortimer testified that the reason for the termination of employment was because Claimant would not move to California under the terms set out by the professor, and that he considered Claimant to be incompetent, arrogant, and did not perform his assigned duties.

It appears from the record that the professor did not have the authority to discharge Claimant and the Respondent has admitted the ineffectiveness of the discharge.

After it was discovered that professor Mortimer did not have the legal authority to terminate Claimant’s employment, Claimant was asked to return to work. He was told that he would have to relinquish any claim for the monies that had been deducted from his salary during the period of his absence from December 7, 1979, until he was asked to return and that the surrender was necessary before he could be placed back on the payroll. The Claimant takes the position that he was wrongfully discharged and that the condition for his resuming his employment was the surrender of certain rights. (15 Illinois Law & Practice, Damages.) If the new offer amounts to an offer to modify or waive the rights the employee has under the terms of the original contract, the employee may refuse to accept the offer without diminishing his damages. See 44 A.L.R.3d, Employment, p. 640.

The record is clear that Claimant could only return to work by giving up his claim for those monies withheld from him prior to January 4, 1980. It is the Court’s opinion that he was under no duty to accept the offer to return to work and surrender certain rights.

It is the opinion of this Court that Claimant has proven he is entitled to damages in the amount of $4,867.54, which amount is the difference between the full contractual salary, $14,700.00, less the monies actually received by Claimant of $9,832,46, which figures were stipulated to by the parties of this suit.

The evidence of an attempt to mitigate his damages by additional work is meager but uncontradicted. Claimant testified that he did seek to find additional employment but he did not elaborate on what he actually did. He stated that a considerable portion of his time was spent in preparation of this law suit.

Claimant also contends he is entitled to additional pay for unused vacation. Under his contract of employment and university policy, Claimant was entitled to paid vacation during the employment period. He was not entitled to accrue vacation time and collect money in lieu of vacation. Therefore, his claim for vacation pay is denied.

Claimant’s claim for interest on past due salary is disallowed. In Toombs v. State (1977), 32 Ill. Ct. Cl. 205, this Court stated that interest on awards is not allowable unless specifically provided for by statute. There is not any statute that would apply in the present case.

Award is hereby granted in favor of claimant in the amount of $4,867.54.


text:
    (No. 80-CC-1549
    Urban J. Louis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 23, 1983.

    William A. Pryor, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim arises from an automobile accident which occurred on Thursday, March 9, 1978, at approximately 10:30 a.m. at the intersection of Toronto Road and the southbound exit ramp from 1-55 south of Springfield, Illinois.

Claimant was driving his 1978 Honda Civic automobile from his office in Springfield to his home south of the city. This was the route he customarily used and therefore was very familiar with the traffic conditions on said road.

The evidence indicates that between March 6 and March 11, 1978, approximately 11 inches of snow fell in the Springfield area. Since the accident happened on March 9, three days after the snowfall began, and since the snow piled on the side of the highway was already 10 feet in height, the evidence is clear there had been an extremely heavy snowfall. Claimant testified that he did not remember a great deal about the storm and did not know whether it was snowing on the day in question. The snow had been plowed off Toronto Road and also off the southbound exit ramp of 1-55. The greater portion of the removed snow had been piled on the north side of Toronto Road and the east side of the exit ramp so that the pile of snow totally obstructed Claimant’s view when he stopped at the intersection at the top of the exit ramp and looked to his left eastward down Toronto Road.

The explanation given for piling the snow in this particular area was that the prevailing winds in this area were from the west and northwest and to pile it west of the highway would only result in it being blown back across the road and necessitate another removal of the same snow. The evidence shows the piled snow had reached a height of up to 10 feet. When .Claimant approached this intersection, he was unable to see the westbound traffic on Toronto Road without pulling the front of his auto out into the westbound lane about six to seven feet beyond the edge of the intersection. When Claimant eased his auto out onto Toronto Road that morning to try to look for westbound traffic, he was struck at the driver’s door by an auto westbound on Toronto Road.

Claimant, as a result of the accident, suffered injuries to his person and damage to his vehicle.

Claimant testified that he believed the Illinois Departr ment of Transportation cleared the snow from Toronto Road and the exit ramp off 1-55. The evidence shows that the snow on the exit ramp was plowed by Respondent and the snow on Toronto Road was plowed by Sangamon County.

Respondent’s position is that the State is not responsible for the accumulation that obstructed Claimant’s view. The evidence shows that both Respondent’s plows and those of Sangamon County pushed the snow into the area on the shoulder where the pile of snow was located that obstructed Claimant’s view-

The issue in this case is whether the piling of the snow so as to obstruct Claimant’s view constitutes negligence and whether Claimant’s acts constitute contributory negligence.

The evidence is clear that for several days prior to the accident in question snow had been accumulating in this area so that by the time the accident occurred there was approximately 11 inches on the ground. This heavy snowfall, which occurs only once every few years, necessitated a tremendous amount of work on the part of the State and Sangamon County who were obliged to remove this obstruction to traffic.

The testimony of the State engineer was to the effect that the first priority of the State on occasions such as this is to remove the snow and secure the opening of the highway.

A dilemma is created by such a heavy and extraordinary snowfall. A decision must be made whether to try to maintain the useability of the highway by removing the snow in such a manner that it will not create any additional hazards or to remove the snow by piling it in places where it could be piled until the storm had abated and Respondent had sufficient time to remove the piles of snow which could result in problems for the traveling public. In this instance, the State chose to keep the highway open. The record shows this storm had continued for several days and, as a result of the accumulation of snow, it was necessary to clear the intersection and pile the snow where it obstructed the Claimant’s view. This accident occurred on March 9 and, according to the record, the storm continued until March 11, which would indicate that Respondent was so thoroughly engaged in keeping the highways open that it did not have time to remove the accumulation of snow piled on the shoulders of the highways.

The evidence indicates that Claimant also exercised all due care that he could under the circumstances so he was not guilty of contributory negligence.

This Court has held bn many occasions that the State is not an insurer against all accidents which occur on its highways, but it does have a duty to keep its roads in a reasonably safe condition. (National Bank of Bloomington v. State (1980), 34 Ill. Ct. Cl. 23.) This Court has also held that the State of Illinois is chargeable with only maintaining its roads in a reasonably safe condition for the purpose for which they are intended and that Claimant must, in. order to prevail, prove by a preponderance of the evidence that Respondent breached its duty and that the breach proximately caused the injuries to Claimant. Baggett v. State (1980), 34 Ill. Ct. Cl. 51.

In the present case, the record is clear that the area in which the accident occurred had been involved in a heavy snowstorm which lasted for several days and accumulated up to 15 inches of snow, and that the State and other municipál bodies desperately tried to maintain the highways. It is unfortunate this accident occurred, particularly in view of the fact that Claimant was doing everything he could to avoid an accident.

The record does not disclose when or how much snow last fell before the time of Claimant’s accident. Claimant introduced no evidence as to when or how much snow had fallen prior to the accident but, as above stated, the fact that the snow piled on the east side of the highway was approximately 10 feet in height on the date of the accident, March 9, clearly indicates there had been a heavy snowfall. Claimant could not recall how long before this accident the pile of snow had obstructed his view or whether it had been present the last time he had used the exit ramp, although he testified he used the same route going to and from his place of occupation. Since the accident occurred on a Thursday morning, presumably Claimant had been on the same exit ramp the preceding day.

The Court is of the opinion that the evidence is clear that due to the length of the storm, which continued even after the date of the accident, and the amount of the snow involved, the State did not have an opportunity to remove the snow bank it had created by piling the snow in the area which obstructed Claimant’s view. Respondent, if it had chosen to remove the snow that was being piled, would have diverted its crews to that task rather than opening the highways and would therefore have caused even greater difficulty for the traveling public. Respondent must be given a reasonable length of time after the highways have been cleared to remove obstructions such as those in this particular case.

To find Respondent responsible for this accident would place the State in the position of being an insurer of all accidents occurring upon its highways and that is not the law of the State of Illinois. It is unfortunate that all of the traveling public did not observe the same rules of traveling that were exercised by Claimant. If such were the case, accidents such as this one would be avoided.

The Court is of the opinion that the State was not negligent in its duty and that it was doing all in its power that could reasonably be expected in situations such as occurred in this case.

Award denied.


text:
    (No. 80-CC-1628
    Tammy D. Graham, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed February 18, 1982.

      Order filed February 8, 1983.

    Leonard M. Ring & Associates, for Claimant.
    Neil F. Hartigan, Attorney General (Saul R. Wexler, Special 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.

Respondent’s motion, filed December 4, 1980, sets forth that on September 30, 1980, Respondent served on Claimant interrogatories and a notice to produce certain documents. On January 9, 1981, when Claimant had not responded to the interrogatories and notice to produce, Respondent wrote to Claimant’s counsel demanding compliance; Respondent then forwarded a second letter to Claimant’s counsel on March 23, 1981, demanding compliance and on May 19, 1981, during a telephone conversation, . Claimant’s counsel advised counsel for Respondent that a response would be forthcoming within the succeeding two weeks. Respondent’s motion further sets forth that as of the date it filed its motion to dismiss, Claimant had not responded to the interrogatories or the notice to produce.

It is hereby ordered that Respondent’s motion, to dismiss be, and the same is, granted, and this cause is dismissed.

ORDER

Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss.

Respondent’s motion to dismiss sets forth that the Claimant filed a companion case in the circuit court of Coles County, under No. 80-L-22, and thereafter entered into a settlement with the individual defendants and executed a general release to them which expressly released:

. . all other persons, firms and corporations of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, loss and damage to property, and the consequences thereof, resulting and to result from an occurrence which happened on or about the 17th day of September, 1979 at or near Route 316 just east of County Road 1420E near. Charleston, Illinois.”

On September 14, 1979, an Act entitled “Contribution Among Joint Tortfeasors” (P.A. 81-801; Ill. Rev. Stat. 1981, ch. 70. par. 301 et seq.) took effect which provides inter alia:

“(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or covenant, or in the amount of the consideration actually paid for it, whichever is greater.” (Ill. Rev. Stat. 1981, ch. 70, par. 302(c)).

The Court finds that Claimant, having executed a general release not reserving to itself any rights against the State of Illinois, did hereby release the State of Illinois from any liability.

Respondent’s motion to dismiss is hereby granted and this cause is dismissed.


text:
    (No. 80-CC-2006
    Thelma Long, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 8, 1982.

      Amended opinion filed June 25, 1982.

      Amended opinion filed February 9, 1983

    Thelma Long, pro se, for Claimant.

      Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a claim for subsidized adoption payments allegedly due Claimant for two children who had been under the care of the Department of Children and Family Services prior to their adoption. These services were provided in accordance with a written agreement for subsidized adoption whereby the Claimant was to receive $169.00 a month for each child. There is no question that satisfactory performance of the services has been completed and verified by the Department. Claimant has alleged in her complaint that she made demand for payment but was refused on grounds that the funds appropriated for such payments have lapsed.

Respondent moved for dismissal on the grounds that, although $10,993.33 remained uncommitted in the fund at the close of the fiscal year, the balance has been depleted by previous claims against it and that there was no money available to transfer into it. In support of its motion, Respondent submitted the report of the Department which is prima facie evidence of the facts contained therein pursuant to Rule 14 of the Rules of the Court of Claims. It remains unrebutted and the time for filing objections to the motion to dismiss has passed. The departmental report wholly substantiates the position taken by Respondent.

According to the 1970 Constitution of the State of Illinois only the legislature may appropriate State funds. For us to make an award in this case would be in violation of the Constitution inasmuch as it would constitute granting the Department of Children and Family Services funds to pay obligations above and beyond those appropriated by the legislature. Furthermore, this obligation is in violation of “An Act in relation to State finance” (Ill. Rev. Stat. 1979, ch. 127, par. 166), which prohibits obligating the State to any indebtedness in excess of the money appropriated. Therefore, this claim is denied.

It should be noted, however, that the departmental report states that, although the lapsed balance in the account was insufficient to cover this claim, there were sufficient balances in the same section in other lines for payments for care of children and, had they been able to precisely forecast the need for this type of care in time to have a transfer bill presented to the General Assembly, they could have requested a sufficient transfer. We cannot speculate on this matter of legislative discretion and are bound by law to deny this claim regardless of equitable considerations.

AMENDED OPINION

Roe, C.J.

This cause is. before the Court on our own motion to amend our opinion filed April 8, 1982, wherein we denied this claim on the grounds that an insufficient amount of funds lapsed from which this claim would have been paid. Our opinion was based upon a misinterpretation of the departmental report.

The departmental report states in response to question No. 8 as follows:

“The lapsed balance in this account (referring to the account out of which payment could have been made) was insufficient to cover this claim; however, there were sufficient lapsed balances in this same section in other lines for payments for care of children and had we been able to precisely forecast the need for this type of care in time to have a transfer bill passed by the General Assembly, we could have requested a sufficient transfer from the $321,080.88 that lapsed in the account entitled ‘For Purchase of Foster Care Services’ (001-41817-4400-02-00) in this same section. A total of $25,000.00 could have been transferred for this purpose.”

Since Butterfield v. State (1961), 24 Ill. Ct. Cl. 85, and the enactment of Section 13.2 of “An Act in relation to State finance” (Ill. Rev. Stat., ch. 127, par. 149.2) (the 2% transferability statute), we have held that where there were sufficient funds in another account which were transferable to the account with an insufficient balance, an award could be made even though the funds were not transferred prior to the close of the fiscal year.

Therefore, it is hereby ordered that our opinion of April 8, 1982, be, and hereby is, vacated and Respondent’s motion to dismiss is hereby denied.

AMENDED OPINION

Roe, C.J.

This is a claim for monthly payments allegedly due Claimant, Thelma Long, under a subsidized adoption agreement with the Department of Children and Family Services. Through administrative error, Claimant received no payments from the Department for March, April, May and June, 1979. By the time the oversight was discovered, the fiscal year had ended and the Department was no longer able to make these payments.

The Respondent filed a motion to dismiss on the grounds that there was no money remaining in the designated appropriation line item out of which the Department would have paid this claim. We denied that motion, citing Butterfield v. State (1961), 24 Ill. Ct. Cl. 85, and section 13.2 of “An Act in relation to State finance” (Ill. Rev. Stat. 1981, ch. 127, par. 149.2) as authority for the Court to make an award in cases where there are no funds remaining in the designated appropriation line item. We did not, however, actually make the award to Thelma Long.

The amended opinion denying the Respondent’s motion to dismiss stated that where there were funds which were transferable into the account with the insufficient balance, an award could be made even though the Department had not made the transfer before the end of the fiscal year. However, it is now clear to us that the Department of Children and Family Services did not have the authority to transfer. funds into the account involved in this matter, even before the fiscal year ended. This account, Adoption Services, fund No. 001-41817-4400-05-00, is a grant line which has been specifically exempted by the General Assembly from the transfer provision of “An Act in relation to State finance” (Ill. Rev. Stat. 1981, ch. 127, par. 149.2). The Department may not transfer money into or out of this appropriation.

We also cited Butterfield v. State (1961), 24 Ill. Ct. Cl. 85, to support its ruling that an award could be made in this case. In Butterfield, the Court awarded fees to an attorney retained by the State Treasurer, even though there were no funds remaining in the State Treasurer’s appropriation. The Court specifically found that the Treasurer was authorized by law to hire an attorney and pay that attorney’s fees. That ruling puts Butterfield into the category of claims exempted by section 30 of “An Act in relation to State finance” (Ill. Rev. Stat. 1981, ch. 127, par. 166) from the prohibition against incurring indebtedness in excess of the money appropriated. Therefore, Butterfield is hot authority for granting an award to Thelma Long because the Court has made no finding that the debt to Thelma Long was expressly authorized by law.

During the fiscal year, the Department of Children and Family Services may ask the General Assembly to make a transfer of currently appropriated funds from one grant line to another. The Department has indicated it would have made such a request so that this obligation could have been paid, had the Department realized before the fiscal year ended that the adoption services account would be insufficient to meet all outstanding obligations. Since the General. Assembly is usually not in session from the close of the fiscal year until the end of the grace time of the lapse period, a request to transfer after the close of the fiscal year would be useless. Why the Department was unable to forecast an obligation it had begun to incur as early as March before the legislature had adjourned at the end of June does not appear in the record. We do note, however, that the fund from which the Department suggested the money could have been transferred is the same fund from which they would have transferred moneys (again contingent upon legislative approval) to cover the obligations in Affiliated Midwest Hospital, Inc., d/b/a Riveredge Hospital, claims Nos. 81-CC-2241 and 81-CC-2242.

According to the 1970 Constitution of the State of Illinois only the legislature may appropriate State funds. For us to make an award in this case would be in violation of the Constitution inasmuch as it would constitute granting the Department of Children and Family Services funds to pay obligations above and beyond those appropriated by the legislature. Furthermore, this obligation is in violation of section 30 of “An Act in relation to . State finance,” (Ill. Rev. Stat. 1979, ch. 127, par. 166), which prohibits obligating the State to any indebtedness in excess of the money appropriated. Whether or not the legislature would havé transferred the funds, we would not have been authorized to do so then and cannot order, it done now. It was a matter of legislative discretion, the exercise of which we cannot speculate. We aré constrained by law to deny this claim regardless of the equities. However, the legislature is not under such constraint and does have authority to appropriate funds to pay this claim. Because we are not cognizant of all the considerations taken into account by the legislature in deciding whether or not to allow funds transfers we cannot make a recommendation. For purposes of possible consideration of this matter by the legislature though, we do find that the Claimant did in fact fully and satisfactorily render the services for which the claim was and that she was not paid through no fault of her own.

Claim denied.


text:
    (No. 80-CC-2045
    Linda J. Cummings, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1982.

    Law Office of C.E. Huligenstein (Brad Badgby, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimant filed a claim against the State of Illinois as a result of an automobile accident which occurred at 8:30 a.m. on March 11, 1980, at the intersection of North 2nd Street and West F Street in Belleville, Illinois. The intersection in question is a four-way stop intersection.

Claimant, Linda J. Cummings, was driving north on North 2nd Street as she approached the intersection, and Lawrence Doiron, an employee of the Department of Law Enforcement of the State of Illinois, was driving east on West F Street.

Claimant arrived first, properly stopped and waited for Mr. Doiron to stop his vehicle. After Doiron stopped, Claimant proceeded into the intersection to make a left turn. When Claimant was half way through the intersection, Doiron started forward into the intersection and struck the left side of Claimant’s car. Doiron testified that he failed to see Claimant because the sun was in his eyes.

Claimant was on her way to work. She is a dog groomer and was transporting two dogs in her car at the time of the accident. Respondent argues that this fact should be considered as contributory negligence because it is possible either or both dogs could have somehow affected Claimant’s driving or control of her vehicle. However, neither Claimant nor Doiron, the only occurrence witnesses, testified that Claimant was operating her vehicle in any manner other than properly. All the testimony is in agreement on that point, and what Respondent urges is totally unsupported. Hence, there is no question but that Respondent’s agent was negligent and Claimant was free of any contributory negligence.

At the scene of the accident Claimant stated she was not injured. She testified that she later started experiencing pain in her back and one week following the accident went to Dr. Kaesberg, a chiropractor, for treatment. Dr. Kaesberg treated her three times over six days and released her. Dr. Kaesberg diagnosed her injury as a thoracic sprain and a lumbosacral sprain with aggravation of a pre-existing congenital condition in the lumbosacral area of the spine. The doctor’s opinion was that these injuries had been caused by the accident, that the sprains would heal themselves and that probably the aggravation of the congenital deformity would cause problems intermittently all her life.

Shortly after being released by Dr. Kaesberg, Claimant, while stooping at work, felt a pop in her knee. She continued to experience back and knee pain while working. In January of 1981 she sought treatment from Dr. Dueker, another chiropractor.

Dr. Dueker generally agreed with Dr. Kaesberg’s diagnosis and stated that, whenever Claimant physically extends herself as she must do in her work, she will experience pain and stiffness. Dr. Dueker also testified that, based upon the history given by Claimant as to the knee pain onset shortly after the accident, his opinion was that it was caused by the accident. Finally, the doctor stated that in his opinion the Claimant would require future treatments every four to six weeks for the rest of her life to alleviate her symptoms. The present cost of each such treatment is $18.00. Claimant was age 33 at the time of the accident.

Dr. Kaesberg’s bill for treatment was $205.00. Dr. Dueker’s bill to the time of the hearing was $780.00 which included treatment for Claimant’s knee pain.

Claimant’s automobile was repaired following the accident at a cost of $960.95, and Claimant incurred a bill for $95.00 for rental of a replacement auto during the time her vehicle was being repaired. The bills on these expenses were admitted into evidence without objection.

Claimant testified that, after the original repairs, there were some items of repair that still needed to be done. Mr. Gomeric, the owner of the local auto repair shop, testified as to an estimate he made of these items. The estimate totalled $479.13, and the witness testified that in his opinion all items could have resulted from the collision of March 11, 1980.

Respondent argues that Claimant failed to prove her bodily injuries resulted from the accident, and points to the lack of complaint of injury by Claimant at the scene of the accident and the minor damages to the vehicles. Respondent then notes that Claimant was treated by Dr. Kaesberg on three occasions, was released and did not see anyone for her injuries until nine months later when she began her course of treatments with Dr. Dueker. Respondent urges that Claimant’s complaints of pain could be just as easily caused by her regular lifting of heavy dogs in her business.

Respondent failed to introduce any evidence whatsoever as to Claimant’s injuries. No medical practitioner testified on Respondent’s behalf to attempt to refute the testimony of Claimant’s treating chiropractors. It is therefore the finding of the Court that the pain Claimant experienced in her back was caused by the trauma of the collision of March 11, 1980.

As to the pain in Claimant’s knee, while Dr. Dueker’s opinion was that this was also caused by the accident, the court cannot accept this opinion. Claimant’s testimony was that she first noticed it after her release from Dr. Kaesberg’s care while she was stooping at work and felt her knee pop. It therefore seems more probable that this complaint was not caused by the collision of March 11, 1980.

Respondent argues that the additional auto repairs of $479.13 were caused by the failure of the original repair shop to properly do the work and that Respondent should not be liable for any such negligence by the original repairer. The testimony from Mr. Gomeric was that part of his estimate related to additional repairs which had to be done and which were not done in the original repair. Since these related directly to the accident, they were directly caused by the negligence of Respondent’s employee.

Gomeric also testified that some items were required because the original work had not been performed properly. This also is attributable to Respondent. The rule of law in Illinois is that, so long as the injured party exercises ordinary care in selecting one to treat his injuries or repair his damages, any aggravation of these injuries or damages caused by the unskillful treatment is something which ought to have been anticipated by the original tortfeasor. Therefore, the negligence of the original tortfeasor is the proximate cause of the Claimant’s injury or damage in its entirety. Gertz v. Campbell (1973), 55 Ill. 2d 84, 303 N.E.2d 40.

Claimant is hereby awarded the sum of seven thousand dollars ($7,000.00).


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

text:
    (No. 80-CC-2082
    Anderson S. Nurse, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 10, 1982.

      Order on rehearing filed July 29, 1982.

    Anderson D. Nurse, pro se, for Claimant.
    Tyrone C. Earner, Attorney General (Paul Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This ■ is an action for damages done to Claimant’s . automobile when a mower being operated by an employee of the State allegedly threw a stone and broke the rear window in Claimant’s car. It was stipulated on the record that the repair bill was $136.62, and that Claimant paid the bill without insurance reimbursement.

The facts aré summarized in a memorandum dated May 2, 1980, from John R. Platt, superintendent Illinois Youth Center Valley View, to William O. Gillespie, assistant director of the Department of Corrections, made part of the departmental report filed in the cause:

“Our employee Mr. Anderson Nurse, Youth Supervisor II, had parked his car in the front parking lot on May 1, 1980. His rear window was shattered by a rock. Mr. Scott had been mowing with the tractor behind his car and apparently caused a rock to be thrown through the rear window. There were no witnesses. It does appear, however, that the explanation for the resulting damage is plausible. No individuals other than Mr. Scott or the tractor were present.”
Our claims committee, pursuant to former Director Rowe’s memo of April 12, 1979, recommends that Mr. Nurse’s claim be processed having established that 1) He has no comprehensive insurance coverage and 2) he incurred the expense of replacing the window ($136.62) and 3) in the opinion of the committee the window was broken accidentally by a rock thrown by the institution tractor which was engaged in mowing behind Mr. Nurse’s car.
I concur with the finding and recommendation of the committee.”

Also in the departmental report is a statement from the tractor operator:

“At approximately 9:00 a.m. after having just finished mowing the area from the gate house to the end of the front parking lot, I was approached by Mr. Nurse who asked me if I knew anything regarding his broken rear window. I told him no, and that I was not aware of it until he asked me about it at this time. He then asked me if the mower could have thrown a rock, and I stated that it is possible, and if that was what happened, I did not hear anything at the time due to the engine and mower noise from the tractor, nor did I notice same, for as previously stated, I was not made aware of the situation until Mr. Nurse asked me about it."

In the opinion of the Court, based on the departmental report and Claimant’s testimony, Claimant has made a prima facie case by acceptable circumstantial evidence that the rock which smashed the window of his car was in fact thrown by Respondent’s lawn mower.

Further, in the opinion of the Court, the doctrine of res ipsa loquitur is applicable herein, so that it can be said that Claimant has also made a prima facie case of negligence against Respondent.

Hunter, in his Trial Handbook for Lawyers, fourth edition, states as follows:

“When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. Metz v. Central Electric & Gas Co., 32 Ill. 2d 446, 207 N.E. 2d 305 (1965).
The purpose of the res ipsa loquitur doctrine is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant . . Hunter, Trial Handbook for Lawyers, fourth edition, 449.

Res ispa loquitur is frequently used when damage or injury results from the operation of machinery.

Respondent offered no evidence that the rock was not thrown by the lawn mower and offered no evidence of freedom from negligence.

It is hereby ordered that Claimant be and hereby is awarded the sum of $136.62.

ORDER ON REHEARING

Roe, C.J.

This cause coming on to be heard on the motion by the Respondent for rehearing, it appearing that due notice has been given, and the Court being fully advised in the premises;

This is an action for property damage done to the Claimant’s automobile allegedly caused by a lawn mower operated by an employee of the Respondent throwing a rock through the windshield. We found that the Claimant presented a case by acceptable circumstantial evidence that the rock was thrown by the lawn mower and granted an award. We also found that Claimant was entitled to an award on the theory of res ipsa loquitur.

Upon reconsideration and review of the record we find that the Claimant failed to prove his case by the preponderance of the evidence. There is no evidence other than speculation as to what caused the windshield to be broken. Nobody saw or heard it happen. Therefore, we do not find that the Respondent was negligent. Moreover, there was no showing that whatever caused the breakage was an instrumentality under the control and management of the Respondent. Therefore the doctrine of res ipsa loquitur does not apply.

Wherefore, upon reconsideration, it is hereby ordered that this claim be, and hereby is, denied.


text:
    (No. 80-CC-2154
    Larry Horner, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1982.

    Hayes, Murphy & Hayes, for Claimant..
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant filed a claim against the State of Rlinois as a result of an accident which occurred on March 12, 1980, at 2:00 p.m.

The facts are not in dispute. Claimant exited off Route 1-55 to go south on Route 1-57. As he was driving under the 1-55 overpass, a Department of Transportation snowplow on 1-55 pushed a load of snow and ice off the overpass onto the top of Claimant’s car. The windshield and roof of Claimant’s car caved in and Claimant was knocked into a brief state of semi-consciousness. Claimant had no warning of any kind of the act complained of.

At the hearing, Respondent did not offer any evidence and did not file a brief with the Court.

Claimant seeks damages for towing charges, car rental, car cleaning, the deductibility on his insurance policy, damage to the suede coat he was wearing, minor repairs to his car, lost wages, as well as some damages for personal injuries allegedly suffered by him.

Claimant rented a car for 15 days at a cost of $270.00. After the said 15 days had elapsed, he used his parents’ car after purchasing auto insurance and registration in the amount of $112.30 which he agreed to pay for the use of the car. He also incurred other expenses for cleaning his car, insurance deductible and minor repairs, totalling about $172.00. Claimant testified he suffered from headaches for two to three weeks and lost two days work at $117.95 per day. At the time of the hearing, he stated he now experiences occasional headaches which he had not had prior to the accident.

An award is hereby entered in favor of Claimant in the amount of two thousand ($2,000.00) dollars.


text:
    (No. 80-CC-2161
    National Institute For Human Relationships, a not-for-profit Illinois corporation, Claimant, v. The Board Of Governors of State Colleges And Universities, a body politic and corporate; Northeastern Illinois University, a not-for-profit State university, as grantee/contractor under Illinois Dangerous Drugs Commission Grant #C2-0040-01; State Of Illinois Dangerous Drugs Commission, a body politic and corporate, as grantor under Illinois Dangerous Drugs Commission Grant #C2-004001, Respondents

      Opinion filed June 29, 1983.

      Klein, Thorpe & Jankins, Ltd. (Richard T. Wimmer, of counsel), for Claimant.
    Dunn, Goebel, Ulbrich, Morel & Hundman (Mark T. Dunn, of counsel), for Respondent Board of Governors of State Colleges & Universities.
    Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent State of Illinois.
   Poch, J.

This claim comes before the Court on the parties’ stipulation wherein it has been requested that an award be entered in Claimant’s favor in the amount of $2,500.00.

The matter arises out of certain nonpayment of funds to Claimant under a contract wherein the Claimant participated in a drug abuse control program made possible by a grant from the Respondent Illinois Dangerous Drugs Commission.

The program covered 1974-75 academic year of Northeastern Illinois University which is operated under the authority of Respondent Board of Governors of State Colleges and Universities.

Claimant was to have been paid the sum of $64,600.00 for its participation in the program. Claimant received $46,691.72, leaving a balance due of $17,908.28. This figure was the amount being claimed in the complaint filed in this case.

The parties, calling attention to the difficulties of proof involved in a trial of a case arising out of events which took place eight years ago with regard to availability of witnesses and documents, have agreed to compromise the claim.

The Court is mindful of trying cases without benefit of competent witnesses and the problems thereof. The Court does not desire to substitute its judgment for that of the parties’ counsel. It is apparent that the agreement to compromise arose only after consideration of the merits of the case and of the parties’ respective positions. Where an agreement to compromise a claim is reached by the parties by their authorized representatives, this Court will not second guess their decision.

It is hereby ordered that the sum of $2,500.00 be and the same hereby is, awarded to the Claimant, National Institute for Human Relationships, in full and final satisfaction of any and all claims involved herein.


author: Roe, C. J.

text:
    (No. 80-CC-2305
    Midwest Pediatric Associates, Ltd., an Illinois professional corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 28, 1983.

    Frank & Flaherty, Chartered, for Claimant.
    Neil F. Hartigan, Attorney General (William R. Wallin, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

The claim here is for payment for medical services provided to patients under the Department of Public Aid’s medical assistance program. The claim was originally filed for $51,269.76 for services provided to 1,124 named patients. After investigation by the Department of Public Aid, the Claimant and Respondent have entered into a joint stipulation settling this claim for $10,000.

This Court has agreed to settlements in claims such as this. In A & T Movers v. State of Illinois (1980), 33 Ill. Ct. Cl. 77, 78, this Court stated as follows:

“This Court was created to adjudicate claims against the State of Illinois on the basis of its own determination of law and fact. As such, the Court has held that it is not bound by an agreement reached between the parties, but will review any such agreement to determine its propriety.
This Court is also mindful of the complexities of proof in cases such as this. The time and expense involved in presenting evidence for or against a claim involving 147 separate transactions is substantial. Where the parties agree to compromise a claim, this Court should not and will not arbitrarily set aside such an agreement absent an indication of possible fraud or duress on the part of one of the parties. There is no such indication present here.”

We find that everything we said with regard to a claim involving 147 transactions applies with even greater force to one involving 1,124 patients. Furthermore, we have found no indication of possible fraud or duress on the part of the parties.

Wherefore, this Court awards to Claimant, Midwest Pediatric Associates, Ltd., the sum of $10,000 in full satisfaction of any and all claims for services rendered.


author: Holderman J.

text:
    (No. 81-CC-0036
    A & K Midwest Insulation, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion on motion to dismiss filed December 24, 1980.

      Opinion filed February 8, 1983.

    James W. Sanders & Associates, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   OPINION ON MOTION TO DISMISS

Holderman J.

Claimant filed a petition before this Court claiming that it was the lowest bidder on the ventilation work for a new school in Metropolis, Illinois. The bids were awarded by the Capital Development Board of the State of Illinois. Claimant seeks to recover lost profits based on the alleged breach of statutory duty to accept the lowest responsible bid.

The Respondent, the State of Illinois, in its motion to dismiss, sets forth that Claimant was not the lowest bidder, but that a firm by the name of Eater Sheet Metal was the lowest bidder, and therefore the contract was awarded to it. Apparently from the records before us, the bid was broken down into a base bid and additional for alternate work. The State admits that the Claimant was the lowest bidder on the base bid. But considering the base bid along with the alternate bid, then the total of the two results in Eater Sheet Metal having the lowest total, and therefore was awarded the contract.

Attached to the motion to dismiss was a letter from the Capital Development Board setting forth these facts together with a copy of the bid tabulations of the Capital Development Board.

The documents attached to the motion to dismiss were submitted under Rule 14 of the Court, which states that all records and files maintained in the regular course of business by any department, board, agency, commission or authority of the State, and all departmental reports made by any office relating to any matter or case pending before the Court shall be prima facie evidence of the facts set forth therein. In response, Claimant does not deny the contention of the Capital Development Board’s letter, but states under Rule 20 the State had the obligation of filing an affidavit setting forth the facts. Rule 20 requires an affidavit when facts do not appear of record.

The State claims that attaching the letter and the bid tabulation from the Capital Development Board made these documents a matter of record under Rule 14. With this we agree. In addition, it is to be noted that Claimant has not contradicted in any way the facts set forth in the State’s motion.

The motion to dismiss is hereby allowed.

OPINION

Holderman, J.

In September of 1979, Respondent took bids for ventilation work for a new school in Metropolis, Illinois. Claimant, a construction firm, submitted a bid on this project but Respondent accepted the bid of another contractor and, as a result, Claimant alleges it lost profits in the amount of $62,789.72, and suit is brought for said lost profits.

This case was originally dismissed on motion of Respondent on the basis of a departmental report of the Capital Development Hoard which stated that Claimant’s bid was not the lowest bid on the proposed project.

Claimant filed a petition for rehearing under Rule 22 of this Court which alleged that Claimant had submitted the lowest bid and the departmental report, submitted under Rule 14, was in error. The order of this Court dismissing this cause was set aside and the matter was submitted to a commissioner for hearing.

Respondent’s position at the hearing was summarized by the Assistant Attorney General as follows:

“Any mistakes in computing the bids were the responsibility of the Claimant due to the negligence of the Claimant in misusing the bid forms which were submitted and in using the wrong bid form which set forth an inherent discrepancy in the bids which resulted in disqualification of Claimant’s bid.”

Respondent takes the position that Claimant’s bid was not in substantial conformity with the bidding documents, thereby violating Article 9.03(a)7 of the Revised Standard Documents for Construction, which were made a part of the contract by reference in this case, thereby resulting in the problem that was presented in this case.

At the hearing, James Alexander, one of the owners of the Claimant, .testified that his company was qualified to do work for the Capital Development Board and that he was experienced at having done many jobs for the State of Illinois. Claimant’s exhibit No. 2 was not submitted to Claimant at the time the bid forms were sent out by Respondent. Claimant’s exhibit No. 2 is the bid form which Respondent claims should have been filled out and which would have removed the discrepancies from the bid documents in this cause. As a result of Claimant’s failure to use bid forms submitted as Claimant’s exhibit No. 2, the dust collecting system had been included in Claimant’s base bid and was submitted by Claimant’s competitor as an alternate bid on the bid form identified as Claimant’s exhibit No. 2.

Claimant’s exhibit No. 4 was prepared by Claimant to show the breakdown of material costs, labor and profit which Claimant expected to make on the job in question.

It appeared at the hearing in this cause that subsequent to the original package of bid documents received by various bidders, including Claimant, an additional addenda of bid forms were sent out, including the bid form introduced as Claimant’s exhibit No. 2. It appears that the successful bidder in the case at bar followed the instructions in submitting. its bid in accordance with Claimant’s exhibit No. 2 and the Claimant in the case at bar did not utilize Claimant’s exhibit No. 2 but utilized the original package of bid forms that had been sent out by the State to prospective bidders .

Donald R. Gaddis testified for Claimant that he was the estimator for Claimant and prepared the bid forms. Gaddis testified that he did not receive Claimant’s exhibit No. 2. He testified that he did not open the mail, but that Mr. Burton, the vice president of the Claimant company, opened the mail.

Mr. Burton testified that he was the vice president of the Claimant company. Burton testified that although he opens the mail, he does not read matters pertaining to sheet metal, and he would have placed these papers once received from the Capital Development Board on Mr. Gaddis’ desk.

Mr. Viar testified for the Respondent that he was the manager of the contracts and pre-qualifications section of Respondent’s Capital Development Board. Viar testified that addendum No. 6 to the project’s specifications would have been furnished to all contractors of record in the architect’s office who had taken out plans and specifications on the Metropolis school property. Viar testified that had the alternate bid form introduced in evidence as Claimant’s exhibit No. 2 been omitted from the papers sent that the receiver would have been alerted to the discrepancy by references made to the alternate bid form in the documents.

Viar testified that the bid submitted by Claimant in the present case was not in substantial compliance with the State’s standard documents for construction in that the ventilation bid was not bid in the way that the Capital Development Board asked them to bid the alternate. The witness also testified that the bid submitted by Claimant’s competitor was in accordance with the bidding requirements.

The difference between the bid of the Claimant and the bid of Claimant’s competitor was that Claimant’s bid form failed to bid the dust collectors as an alternate. The witness continued and testified that the figures of the bid of Claimant and Claimant’s competitor would not have made any difference if Claimant’s bid form was not properly submitted.

Claimant argues that in the proceedings before the commissioner, it was proven that Claimant did not receive the revised bid forms with addendum No. 6. We do not accept this conclusion. Mr. Viar of the Respondent agency testified that the revised bid forms were submitted to all contractors who had picked up the specifications. Furthermore, if the bid form submitted as Claimant’s exhibit No. 2 was not submitted with addendum No. 6, the Claimant should have been alerted to its absence by virtue of reference to the revised bid form in addendum No. 6.

There can be no question that it is the responsibility of the Capital Development Board to accept the lowest responsible bid. However, it appears that the rules of the Capital Development Board require that contractors making bids do so in conformity with the requirements of the Capital Development Board (CDB) with respect to alternatives on a job-by-job basis.

Claimant, in its brief, states that the CDB had a statutory duty to award the ventilation contract to the lowest responsible bidder. This duty comes under the creation of the CDB by statute in the Capital Development Board Act. (Ill. Rev. Stat., ch. 127, par. 771 et seq.) This creation statute states that the CDB has the power to “enter into contracts on behalf of the State of Illinois to effectuate the purposes of this Act, subject to the Illinois Purchasing Act.” Ill. Rev. Stat., ch. 127, par. 779.02.

The Illinois Purchasing Act (Ill. Rev. Stat., ch. 127, par. 132.1 et seq.) regulates the purchasing and entering into of contracts by the State. Section 6(a) of the Act states in part:

“That all purchases, contracts, and expenditure of funds shall be awarded to the lowest responsible bidder . . .” Ill. Rev. Stat., ch. 127, par. 132.6(a).

The reading of the two statutes in conjunction with one another clearly creates a statutory duty to accept the bid from the lowest responsible bidder. It was undoubtedly the legislature’s intent that all State contracts be executed as economically as possible. By awarding the contract for ventilation work on the Metropolis school to Eater Sheet Metal Company, the CDB was in accord with its statutory duty to award the contract to the lowest possible bidder, inasmuch as A & K’s bid was not responsive to the invitation to bid.

The major thrust of Claimant’s argument that the State of Illinois owes them restitution for lost profits stems from Claimant’s contention that the CDB, by its employees and agents, breached their duty to supply Claimant with a revised bid form. Claimant charges that due to this failure on behalf of the CDB, they, A & K, used the original bid form and as a result of negligent reading and/or computation of the bids by the employees and agents of CDB, the contract was not awarded to the lowest bidder, A & K.

This argument cannot be maintained for the following reasons. The first page of the six pages mailed to the contractors contained information regarding the contents. No. 2 on the first page stated:

“Bid form substitute attached, sheets 00300-1 revised, 00300-2 revised, 00300-6 revised, and 00300-7 revised for those originally issued.” (R.48)

The 00300-6 was the bid form for the ventilation work for this particular project. Mr. Alexander offered testimony that A & K received the eight addenda which were sent out by the CDB prior to the bid letting. Though Mr. Alexander insists that A & K did not receive the alternate bid form, a careful reading of the materials received would have notified them of the absence of the appropriate bid form to be submitted in lieu of the original bid form.

It is interesting to note in this connection that all other prospective bidders received the proper forms and submitted their bids on the proper forms.

The main issue in this case is whether or not A & K’s bid was responsive to the invitation to bid. In the case of Leo Michuda & Son Co. v. Metropolitan Sanitary District of Greater Chicago (1981), 97 Ill. App. 3d 340, it was stated that bids must conform to the advertised requirements of the invitation to bid. As stated before, four construction companies submitted bids in response to the sanitary district’s advertisement for bids for a construction project within the district. Prior to the bid opening, the bidders were issued an addendum to the bid documents. Appendix D of the addendum required that the bidders submit with the bidding documents a goal disclosure form listing the minority subcontracts intended for award to minority and small businesses.

The court, in the Michuda case, stated that “bids must conform to the advertised requirements of the invitation to bid.” The court further stated that:

“Every element which enters into the competitive scheme should be required equally for all and should not be left to the volition of the individual aspirant to follow or disregard and thus to estimate his bid on a basis different from that afforded the other contenders.” 97 Ill. App. 3d 340, 344.

In another case similar to the one at bar, a contractor failed to file an appendix with his bid as required by the invitation to bid. (Rosetti Contracting Co. v. Brennan (7th Cir. 1974), 508 F.2d 1039.) In this case, the U.S. Court of Appeals for the Seventh Circuit found that the language in an invitation to bid regarding submission of an appendix by each bidder, clearly made submission of an appropriate appendix a matter of responsiveness. The court further went on to state that if a bidder were allowed to correct a deficiency in an appendix after the bid opening the effect would be to let a bidder avoid the matter by merely failing to supply the omission and that the operation of the sealed competitive bidding system would thereby be impaired.

The CDB set forth mandatory requirements in its bidding system. As submitted, A & K’s bid was nonresponsive and could not be amended after the bids were opened in order to make it responsive. Granting the award. to A & K, by the CDB, would have been improper.

Inasmuch as an error was made on the part of A & K’s employees, by misreading the materials, the State of Illinois cannot be held responsible for A & K’s submission of the wrong form. The Claimant had notice of the change in bid forms and did not use it. To assert, several months after the awarding of the contract, that the Respondent State of Illinois’ employees were negligent in reading the bid form is a feeble attempt to win the contract.

It is the opinion of this Court that the error that resulted in Claimant not securing the bid was one of its own making and the Respondent cannot be penalized because of that error. It is mandatory that bidding procedures be followed so that all bidders are placed on an equal footing.

Award denied. Case dismissed.


text:
    (No. 81-CC-0043
    Henry Bazzoli, Claimant, v. The State of Illinois, Respondent.

      Order filed May 2, 1983.

    Garretson and Santora, for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter coming to be heard on the joint stipulation of the parties, due notice having been given and the Court being fully advised in the premises, we find as follows:

The instant claim arises from damage sustained by Claimant’s automobile. The parties have met before the commissioner in several pretrial conferences and have agreed to settle the matter for $610.00. This figure appeárs to be reasonable and fair, and seems to have been reached after considerable deliberation.

The Court is not bound to accept such stipulations, but, at the same time, it hesitates to interpose a controversy between parties where none appears to otherwise exist. Where, as in the instant claim, the settlement appears to be reasonable and fair, and entered into with full knowledge of the facts and the law, we find no reason not to honor it.

Claimant is hereby awarded $610.00 in full and final satisfaction of the instant claim.