author: Sommer, J.

text:
    (No. 87-CC-0877
    Utility Mechanical Contractors, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed November 12, 1993.

    Pope & John (Bruce R. Meckler, of counsel), for Claimant.
    Feldman & Wasser (Carl R. Draper, of counsel), for Respondent.
   ORDER

Sommer, J.

This cause comes on to be heard on the parties’ joint motion for entry of agreed order, due notice having been given, and the Court being advised, finds:

Claimant Utility Mechanical Contractors, Inc. brought this claim seeking payment of $1,251,068 pursuant to a contract it entered into with the Respondents Capital Development Board (CDB). The parties entered into a settlement agreeing to the entry of an award in the compromised amount of $200,000. The settlement is now before the Court for approval.

In relevant part the motion at bar states as follows:

“1. The parties have entered into a settlement agreement, a copy of which is attached hereto and made a part hereof as Exhibit A.
2. The Claimant was seeking payment for $681,000 worth of work that it claimed was performed on that project as part of the damages it was claiming.
3. The CAPITAL DEVELOPMENT BOARD agrees that the Claimant is justly entitled to the sum of Two Hundred Thousand and no/100 Dollars ($200,000) and requests this court to enter an order providing for payment in the sum of $200,000 as the full compensation from this cause, together with other monies to be contributed to the contributory trust fund of the CAPITAL DEVELOPMENT BOARD by the surety company.
4. Both parties request that this action be taken and that the agreed order be entered and that this cause be dismissed upon payment.”

On August 26, 1993, the Court took up the motion and, although noting that the record in this matter was lengthy, held the decision in abeyance ordering that additional information be placed in the record. Specifically, the Court sought a copy of the settlement agreement and information on the funding of the project. That information has now been provided.

The settlement agreement itself, referred to as Exhibit A in the motion, adds an explanation of the controversy as well as reciting the terms of the compromise. It was entered into by the CDB, the Claimant, Philip A. and Leah Marcus, and United States Fidelity and Guarantee Co. In relevant part it provides as follows:

“WHEREAS, in or about June, 1985, Utility Mechanical Contractors, Inc. was awarded a contract commonly referred to as Bid Package Number 5 for the conversion of the Abbott Power Plant on the Champaign Campus of the University of Illinois; and
WHEREAS, the Capital Development Board of the State of Illinois was the contracting party on behalf of the State of Illinois; and
WHEREAS, in or about August, 1985, United Fidelity Guarantee Company issued a Labor and Material Bond and Performance Bond on behalf of Utility Mechanical Contractors, Inc. to assure the payment for work performed by Utility at the Abbott Power Plant Project; and
WHEREAS, in or about July, 1981, United States Fidelity and Guaranty Company entered into a Master Surety Agreement with Philip A. and Leah Marcus which, inter alia, guaranteed the performance of Utility Mechanical Contractors, Inc. under the respective Labor and Material Payment and Performance Bonds relating to, inter alia, the Abbott Power Plant Project; and
WHEREAS, subsequent to the commencement of the work at the Abbott Power Plant Project, a dispute arose between Utility Mechanical Contractors, Inc. and the Capital Development Board resulting in the Capital Development Board terminating the contract of Utility Mechanical Contractors, Inc.; and
WHEREAS, Utility Mechanical Contractors, Inc. believed that its termination was wrongful, illegal and violated the laws of the State of Illinois and the contract documents; and
WHEREAS, Utility Mechanical Contractors, Inc. initiated an action in the Court of Claims of the State of Illinois entitled Utility Mechanical Contractors, Inc., an Illinois corporation, Claimant vs. Capital Development Board of the State of Illinois, Respondent, No. 87-CC-0877; and
WHEREAS, United States Fidelity and Guarantee Company initiated an action in the Circuit Court of Cook County, Illinois entitled United States Fidelity and Guarantee Company v. Utility Mechanical Contractors, Inc. and Philip and Leah Marcus, 87 L 21954, which sought indemnity for amounts that United States Fidelity and Guarantee Company have paid in connection with the Labor and Material Payment Bond and Performance Bond for the Abbott Power Plant Project; and
WHEREAS, the Capital Development Board of the State of Illinois believed that the termination of Utility Mechanical Contractors, Inc. was appropriate and that their actions prior to termination and the result of the termination have cost the State of Illinois significant damages; and
WHEREAS, the Capital Development Board of the State of Illinois instituted an action in Champaign County entitled People of the State of Illinois, ex rel. Skoien v. Utility Mechanical Contractors and United States Fidelity and Guarantee Company, No. 90-L-292 (the “Champaign County Action”); and
WHEREAS, Utility Mechanical Contractors, Inc. instituted an action in the Champaign County action against United States Fidelity and Guarantee Company which alleged, inter alia, that United States Fidelity and Guarantee Company breached its obligations of good faith and fair dealing with Utility, which allegations were denied by United States Fidelity and Guarantee Company.
WHEREAS, all parties believe that it is in the best interest of each to completely settle the matters between themselves.

NOW THEREFORE IT IS AGREED THAT:

1. Neither the Capital Development Board of the State oflllinois, Utility Mechanical Contractors, Inc., United States Fidelity and Guarantee Company nor Philip A. and Leah Marcus by entering into this agreement in any manner concedes that any actions taken by any of them are improper or wrong and this settlement is solely for the purpose of resolving the litigation between themselves.
2. The Capital Development Board of the State oflllinois agrees that it shall enter into this stipulation and seek the entry of an order in the Court of Claims in Cause No. 87-CC-0877 for payment to Utility Mechanical Contractors, Inc. in the sum of Two Hundred Thousand and no/100 Dollars ($200,000.00) (the “Court of Claims Judgment”) and shall assist and take all actions reasonable to assure the passage of any necessary legislation for the appropriation of said sums. Upon payment to Utility Mechanical Contractors, Inc. of the Court of Claims Judgment, the Capital Development Board shall dismiss with prejudice the Champaign County Action.
3. United States Fidelity and Guarantee Company shall pay the sum of One Hundred Thousand and no/100 Dollars ($100,000.00) to Utility Mechanical Contractors, Inc., which funds (the “USF&G Payment") shall be placed in the contributory trust fund of the Capital Development Board and said funds shall be paid over to Utility Mechanical Contractors, Inc. upon the appropriation and payment of the Court of Claims Judgment. Upon payment to Utility Mechanical Contractors, Inc. of the USF&G Payment, Utility will dismiss with prejudice its action against United States Fidelity and Guarantee Company in the Champaign County Action.
4. Simultaneous with the disbursement of the funds provided in paragraphs 2 and 3 hereof, each of the parties shall sign the Mutual Release, a copy of which is attached hereto and made a part hereof as Exhibit A, releasing each party from the other from any liability, claims, demands, damages, costs, loss of services, expenses and compensation growing out of the contract disputes at the Abbott Power Plant Project, CDB Project Number 0830-010-055. At the time of execution of this Agreement, the Capital Development Board will also execute a release, a copy of which is attached hereto and made a part hereof as Exhibit B, which will release to Utility Mechanical Contractors, Inc. the remaining proceeds of the Retention Trust at the Harris Trust & Savings Bank, which represents amounts retained from payments previously made to Utility Mechanical Contractors, Inc. for work performed at the Abbott Power Plant Project.
5. Utility Mechanical Contractors, Inc. by the execution of this Agreement acknowledges that it is a corporation in good standing in the State of Illinois and that all corporate actions necessary for the execution of this Agreement have been taken.
6. The parties agree that in the event that the Court of Claims Judgment is not paid to Utility Mechanical Contractors, Inc. by March 31, 1994, then Utility Mechanical Contractors, Inc. may declare this settlement null and void. In the event that Utility elects to declare this settlement null and void pursuant to this paragraph, all parties hereto shall retain all rights that they had against each other that they possessed prior to execution of this Settlement Agreement.”

The information on the State s funding of the project can be summarized as follows. The source of the funding is CDB bond money in the 141 fund. Appropriations of the money appear to be rolled over and augmented from year to year. Thus no money for the project technically has lapsed. The project is still ongoing and payments are from fiscal year 1994 funds. Although $72,838.43 remains released and unexpended in the current appropriation, all but $21,948.19 was obligated as of September 4, 1993, and that money is being used to pay for phase IV of the project.

The Court of Claims is not bound by such settlements. The Court does however encourage parties to resolve their disputes and we do not seek to interpose controversy where none appears to exist. In this case the settlement appears to have been entered into by parties knowledgeable of the facts and the law and it appears fair and reasonable.

But for the insufficiency of appropriated money to fund a judgment we would approve the settlement. As explained in Graham, O’Shea & Hyde v. State (1992), 44 Ill. Ct. Cl. 175, 177 and the cases cited therein,

“In breach of contract claims, whether the claims are before us on their merits or for approval of a settlement, it is the Courts policy to limit awards so as not to exceed the amount of funds, appropriated and lapsed, with which payment could have been made." (Settlements of cases to be funded with available current appropriations do not require Court approval.) “To do otherwise, i.e., to award money for debt incurred beyond the sum allotted by the General Assembly, would be tantamount to making a deficiency appropriation. The appropriation of State funds for governmental operations is the constitutional prerogative of the General Assembly. It is this Courts duty to uphold that process and advise the General Assembly.”

It is for that purpose that the information on funding of the project was ordered to be placed in the record. Due to the lack of money the claim must be denied. For purposes of potential consideration of this settlement by the General Assembly, the Court advises that this is the sole reason for denying the agreed upon award.

The Court also notes the parties have agreed in effect that the settlement is voidable by the Claimant if Claimant is not paid by March 31, 1994. The Claimant is advised that if the General Assembly considers this case, the schedule may not permit final action by said date. If the option of voiding the agreement becomes available to the Claimant, the Court suggests to the Claimant that the option not be exercised without prior investigation of the process.

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


source: Caselaw Access Project

author: Mitchell, J. Mitchell, J.

license: Public Domain

text:
    (No. 87-CC-0878
    Joseph Doe, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 2, 1994.

    Ruthanne K. Dewolfe, of Legal Assistance Foundation, for Claimant.
    Roland W. Burris, Attorney General (John A. Simon and Tanya Solov, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Mitchell, J.

This matter comes before the Court of Claims as a negligence action against the State of Illinois and Illinois Department of Corrections (IDOC).

Claimant alleges that while incarcerated at IDOC Youth Center in St. Charles the IDOC negligently failed to protect him from sexual assault by another inmate. Claimant contends that the negligence of the IDOC was the proximate cause of the Claimants sexual assault and that Claimant suffered $75,000 in damages.

Facts

On August 23, 1985, Claimant was convicted of armed robbery and sentenced to six years imprisonment. On August 29, 1985, Claimant arrived at the reception and classification unit of the IDOC Youth Center in St. Charles.

Upon arrival, Claimant was immediately examined by Dr. Baker, an IDOC psychiatrist at St. Charles. Dr. Baker reviewed the Claimants psychiatric history, which spanned seven years and included hospitalizations on at least five occasions, and extensive outpatient psychotherapy. At the conclusion of the examination, Dr. Baker made a diagnosis of childhood schizophrenia and continued Claimant on the psychotropic drug, Prolixin. Dr. Baker recommended that Claimant receive a permanent assignment in a special intensive treatment program. .

While Claimant waited for an opening in the special treatment program, he was housed in Robinson cottage at the reception and classification unit, where he had a series of roommates.

On September 14, 1985, James Roe was assigned as Claimant's roommate. Roe was a fourteen year-old delinquent who was committed to the IDOC for the offense of aggravated battery. The two youths shared the room without incident for two weeks.

On September 29, 1985, Claimant retired to his room about 9:00 p.m. At approximately 10:00 p.m. Roe returned to the room. Claimant testified that he and Roe had an argument and that Roe threatened Claimant. Claimant testified that he banged on his cell door and begged Lowell Edwards, the youth supervisor, to let Claimant see the team leader and requested to be transferred to Roosevelt cottage. Claimant testified that he persisted in his requests but that the supervisor ignored him.

Claimant first reported the alleged incident to another inmate by stating that James Roe had attempted to rape Claimant, but that Claimant had avoided the attack.

Approximately 10 days after the alleged incident, Claimant recounted the alleged attack to three employees and an IDOC investigation was instituted. Claimant reported that while he slept, James Roe stuffed a sock down Claimant's throat, tied Claimant’s hands and forcibly raped him.

In another version of the incident, Claimant told polygraph examiner Michael Musto that Claimant had engaged in a consensual sex act with Roe in exchange for cigarettes.

At trial, Claimant testified that Roe ordered Claimant to blow on Roes arm or leg and to suck on his penis. He further testified that Roe then pushed Claimant down on the bed, forced himself on top of Claimant and sodomized him.

At trial, Lowell Edwards, the unit supervisor on duty on September 29, 1985, testified that nothing unusual happened that night. He stated that no requests were made by any youths to see their team leaders or to go to Roosevelt cottage and that no youth reported a sexual assault. Claimant was housed at the St. Charles Robinson cottage until October 15, 1985, when he was transferred to a special treatment program in Setlen House. Claimants psychiatric condition worsened. He was depressed and paranoid and reported hearing voices telling him to kill two other juvenile residents who were pressuring him for sex.

On November 14, 1985, Claimant was transferred to the Illinois State Psychiatric Institute (“ISPI”) because his doctors felt that his condition warranted immediate attention. After four months at ISPI, Claimant returned to IDOC and the balance of his stay was uneventful.

Claimant brings this action against the State of Illinois alleging negligence by the State employees at St. Charles Youth Center. When a claimant alleges injury was caused by defendants negligence and a third party’s illegal wrongful act, the claimant must prove by a preponderance of the evidence that the third party committed the illegal or wrongful act. (Woodward v. Mettille (1980), 81 Ill. App. 3d 168, 284 N.E.2d 934, 943.) Claimant has failed to establish by a preponderance of the evidence that he was, in fact, sexually assaulted. Claimant first reported the alleged attack to a fellow inmate by stating that the attacker had attempted to rape Claimant but that he had avoided the attack. Approximately 10 days after the incident, Claimant reported the alleged attack to three IDOC employees. Claimant reported that while Claimant slept the offender stuffed a sock down Claimant’s throat, tied his hands with a sock and then forcibly raped him. Claimant later recanted that version of the facts.

In Claimant’s statement to IDOC employees he also claimed that after the attack he screamed, kicked and pounded on his room door. In his deposition testimony, Claimant stated that he did not scream or kick on his door. At trial Claimant testified that he did pound on his room door after the incident. The unit supervisor on duty that evening testified that nothing unusual occurred on the night of the alleged incident.

In yet another contradictory version, Claimant also interviewed with IDOC polygraph examiner Michael Musto. Following the lie detector test Claimant voluntarily told Musto that he had engaged in a consensual sex act with the alleged offender in exchange for cigarettes. Statements made by a person after being administered a lie detector test are admissible evidence. People v. Sickley (1983), 114 Ill. App. 3d 167, 448 N.E.2d 612.

Further, Claimant’s trial account of the alleged facts is at best improbable. The prison records indicate that at the time of his admission to IDOC in August of 1985, Claimant was five feet, six inches tall and weighed 150 pounds and would turn 17 years old in September, 1985. Prison records also indicate that in September, 1985 the alleged offender was five feet, four inches tall, weighed 140 pounds and was 14 years of age. Yet Claimant testified that the alleged offender overpowered him, and held Claimant down with one hand while the alleged offender used the other hand to apply hair grease to his penis.

Dr. James Guidi, a licensed clinical psychologist, testified on behalf of Claimant. Dr. Guidi testified that Claimants admitted prior exaggeration of the amount of force used, i.e., that he was tied down and a sock was stuffed down his throat, and the delay in reporting the attack to the staff are typical of victims of sexual assault. However, the repeated inconsistencies in Claimants testimony and the physical improbability of the Claimants most current version raises a significant doubt as to whether the alleged incident of sexual assault ever occurred.

In light of the inconsistencies, Claimants testimony cannot be considered credible. Claimant has, therefore, failed to prove the third party’s wrongful act by a preponderance of the evidence and the Court need go no further. Therefore, the claim is denied.

AMENDMENT TO OPINION

Mitchell, J.

For purposes of publication of this opinion, the Claimant’s name shall be changed to Joseph Doe and his roommate’s name shall be changed to James Roe.


author: Patchett, J.

text:
    (No. 87-CC-1081
    Carroll Alexander, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 26, 1994.

    Carroll Alexander, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christopher K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

The Claimant was an inmate with the Illinois Department of Corrections. He seeks damages for personal injuries in the sum of $100,000 as a result of an attack on him on August 11, 1986. This attack took place in the kitchen at Menard Correctional Center. He was assaulted by another inmate and sustained injuries to the arms, hands, and head.

The Claimant further alleges that two days after the incident, he received what is basically a pass to report to the medical unit for examination, but the correctional officers refused to allow him to go.

At the hearing on this case, the Claimant testified that on August 11, 1986, he went to work at the usual time at the kitchen. During his work shift, correctional officers permitted him to remain unsupervised with other inmates while they were performing other duties. He contends that during this time, another inmate attacked him, hitting him on the thumb and back of his head with a steel paddle. He contends that if an officer had been present to supervise the inmates, the injuries might have been prevented.

The Claimant testified that he had to have stitches in his hand and he suffered headaches from the gash to his head. The Claimant contends that his whole arm goes numb as a result of the injuries in question. He further testified that he requested medical help for those conditions, but “they can’t do nothing.”

The Claimant testified that there was a rule at the penitentiaiy that there should always be an officer present, and that they were supposed to have an officer working at the back door of the kitchen. The Claimant claimed that he read the rule book, but he could not produce the rule in writing or give a citation. He stated that at the time of his injury, there was no officer working the back door.

On cross-examination, he testified that he was sitting in the back of the kitchen talking when another inmate came running through with a paddle in each hand. The inmate swung at the Claimant, and as the Claimant threw his hands up, he got cut with the paddle and hit in the head. Although the Claimant knew the assailant, he testified that he had never had any confrontations with him and had never been threatened previously. The Claimant had never informed the correctional officers that he might be attacked because he had no reason to think that he would be attacked. He admitted that the guards could not have known that the other inmate was going to attack him in advance.

The Claimant received medical treatment from the health care unit who gave him stitches in his thumb. He does not recall if he was given an ice pack for his head. A couple of days after he was injured the guards refused to let him go to the medical unit for examination until 3:00 p.m. He contends that this caused permanent injuries. He further contends that he was denied pain killers, even though it was requested on numerous occasions.

This court has consistently held that the State is not an insurer of the safety of persons under its control. (Dorsey v. State (1977), 32 Ill. Ct. Cl. 449.) There the Court stated as follows:

“The rule in the State of Illinois and other jurisdictions is that before the State can be held liable in a situation such as the present one, the State would have had to have knowledge of the dangerous propensities of the assailant * ° ° and guarded against him.” 32 Ill. Ct. Cl. 449, 451.

The Dorsey case was followed and approved in Bock v. State (1991), 43 Ill. Ct. Cl. 299, 305. Here, as in the case cited above, there was no advance warning of the dangerous propensity of the inmate who attacked the Claimant. In addition, correctional officers were not provided any warning or information that an attack might be imminent or expected by the inmate. Without advance notice, there was no way for the correctional officers to foresee the assault in question.

In cases where inmates have been assaulted by other inmates, this court has determined that proof of foreseeability, or of potential harm, must be shown, and that Respondents agents anticipated, or should have anticipated, that third persons would commit criminal acts against a particular inmate. Carey v. State (1981), 35 Ill. Ct. Cl. 96; Childs v. State (1991), 38 Ill. Ct. Cl. 196; Phipps v. State (1991), 44 Ill. Ct. Cl. 105.

For the reasons stated above, we hereby deny this claim. In addition, as to the portion of the claim in which the Claimant alleged he was provided inadequate medical care, the Claimant failed to establish that agents of the Department of Corrections deviated from applicable standards of care. (Bock v. State (1991), 43 Ill. Ct. Cl. 299, 304.) Since the Claimant offered no evidence that the medical care afforded to him deviated from the applicable standards of care, there is no liability established.


author: Frederick, J. Frederick, J.

text:
    (No. 87-CC-1806
    Bernie J. Gildehaus, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 30, 1993.

      Order filed September 21, 1993.

    Chadwick Kasten, for Claimant.
    Roland W. Burris, Attorney General (Thomas Gray, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Bernie J. Gildehaus, in this tort action, seeks recovery from the State of Illinois for personal injuries he allegedly received in an automobile accident which occurred on September 11, 1986. The accident occurred when Claimant was operating his 1976 Pontiac vehicle westbound on Lincoln Highway at its intersection with North Illinois Street in Fairview Heights, St. Clair County, Illinois. Claimant was attempting to make a left turn and proceed south on North Illinois Street. The Respondents agent was operating a State truck immediately behind the Claimant, proceeding in the same direction.

Claimant testified that he was on his way to the grocery store with his wife and children and was in the left-hand lane expecting to turn left. There were several cars in front of the Claimant. When the light turned green, one of the cars in front of Claimant at the intersection stalled out, for a few seconds, but finally went through the intersection.

By the time the Claimant proceeded to the actual intersection, the traffic control light turned yellow and the Claimant hit his brakes. Respondent’s truck then struck Claimants vehicle in the rear. The Claimant testified his body went forward and on impact, he broke the turn signal switch off and hit the panel. Claimant discovered he had been hit by an orange State of Illinois truck being operated by Respondents agent. The damage to the rear of Claimants car is shown in two photographs admitted into evidence. The damage appears to be extremely slight. The only damage appears to be a small dent about a foot from the trunk key hole, however the damage resulted in the car being “totaled” as far as Respondents payment for damages to the vehicle was concerned. The damages were $453 and the car was only valued at $500.

The police were not summoned to the accident scene. At the time of the accident, Claimant was not hurt and didn’t feel the need to call the police. The Claimant testified that the next day he went down and made out a police report at the police station with his wife.

Claimant continued to work after the accident. He worked all but two days between the 11th and 28th of September. He also worked for four days in November. Claimant’s job was at Steak ’n Shake as a maintenance man and this job involved some lifting. Claimant testified he had pain from his neck to his feet so he went to a physician. Claimant first saw Dr. Naguit on September 30, 1986, nineteen days after the accident. This was the first doctor he saw after the accident. Dr. Naguit is a general practitioner. Claimant’s main complaint of pain was involving the Claimant’s neck.

Claimant denied ever having had any problems with his back or any problems doing his job prior to the accident. Dr. Naguit prescribed physical therapy for Claimant, but Claimant denies that it did any good. Claimant continued treating with Dr. Naguit, who referred Claimant to Dr. Murphy, a physician whose specialty is neurological surgery. Dr. Murphy originally tried to put Claimant through a “work hardening program” which Claimant did not complete. In May of 1988, Dr. Murphy admitted Claimant to the hospital and put metal plates and bolts in Claimants back. The hardware was removed upon Claimant's rehospitalization in 1990. Claimant wears a back brace. Claimant stood up during the hearing before the Commissioner because, he testified, that every time he sits, it cuts off circulation in his left leg and causes pain.

Claimant testified he experiences pain every day which is a sharp pain going from his neck to his lower back and legs, as though somebody stabbed Claimant with a knife.

Claimant has been treated once or twice a month with spinal blocks since the accident. Claimant has never been released to return to work by his doctors since the time he started treatment.

At the time of the hearing, Claimant was 36 years of age and he was married with three children, aged four, six and nine. Claimant attended school for nine years. His first job was at a cemetery digging graves with his father. Claimant began working at the Steak 'n Shake Restaurant in 1976 for $1.90 per hour. At the time of the accident, Claimant was a general maintenance man working the midnight shift at Steak 'n Shake making $4.50 per hour. Claimant testified that he received approximately a $.25 per hour raise each year. Prior to the accident, Claimant had done odd jobs for extra money, including work at an auto sales agency as an auto mechanic and he also did body work. Claimant also continued to dig graves. Claimant’s wage information showed that in 1986, he made slightly more than $6,000 prior to the accident, but that he did not include money from the car agency or digging graves or other odd jobs. The evidence showed that in 1982, Claimant made $10,428; $9,816.99 in 1983; $9,735.67 in 1984; and $8,516.52 in 1985.

After the accident, Claimant testified he attempted to return to work but just couldn’t “do it.” Claimant testified that his personal life with his wife has also been affected by his injuries. Claimant is able to drive a car for about an hour and a half until he has to pull off the road. At the time of the hearing Claimant was still taking large amounts of medication. Claimant testified that nothing anybody had done for him had helped him after his surgery. Claimant further testified, without objection, that his medical bills totaled $64,613.88. A portion of these bills had been paid by the State of Illinois.

Respondent’s cross-examination of the Claimant elicited that Claimant’s job as a maintenance man and gravedigger involved heavy lifting.

Dr. Michael Murphy, the specialist, testified that he diagnosed Claimant’s condition as spinal stenosis. Spinal stenosis is a condition in which there is a congenital decrease in the cross-sectional area of the canal through which the nerve roots travel in the lower portion of the lumbar spine. Dr. Murphy’s opinion was that the spinal stenosis probably pre-existed the automobile accident of September 11, 1986. As congenital usually means “from birth,” this opinion is well taken.

In response to Claimant’s counsel’s question, “Doctor, do you have an opinion you can state to a reasonable degree of medical certainty as to whether the automobile accident aggravated the pre-existing condition,” the Claimant’s specialist responded, “I think it’s possible that it could have aggravated the pre-existing condition.” Dr. Murphy gave no basis for this opinion. According to Dr. Murphy, Claimant probably had the condition long before the accident. The MRI of July 7, 1987, shows degenerative disc disease at L2-3 and L5-S1 without evidence of herniation.

By February of 1988, Claimant had an 11-month history of claudification. He had extensive stenosis for such a young man. Dr. Murphy performed a laminectomy on Claimant on May 25, 1988. This was to take the pressure off of the nerves in the nerve canal. He did a fusion along with the laminectomy. Dr. Murphy certainly hoped Claimant would not need any further surgery. Dr. Murphy is not sure when Claimant could return to work. When he does return to work, he will not be able to lift over 50 pounds. Dr. Murphy testified Claimant had a temporary permanent disability. Dr. Murphy’s final diagnosis was spinal stenosis and degenerative disc disease. Dr. Murphy made no mention of a herniated disc.

On cross-examination, Dr. Murphy admitted that no one had ever described the accident to him or had shown him any pictures of the Claimant’s vehicle after the accident. Dr. Murphy had no idea as to a percentage of the extent this accident may have aggravated the pre-existing condition. Dr. Murphy had no idea as to whether the degenerative disc disease was a pre-existing condition. He did not know if a rear-end collision which caused a slight dent in the rear of Claimant’s car would cause degenerative disc disease. Dr. Murphy filed a lien for his fees in the sum of $10,895.

Dr. Naguit, the general practitioner, testified that on September 30, 1986, Claimant gave a history of denying any injuries at the time of the accident. On October 8, 1986, Dr. Naguit formed a diagnosis of acute cervical strain. On November 28, 1986, the diagnosis was acute low back pain. This doctor further testified that,

“This condition that he had in May of 1988, whether aggravated or whether it was brought on by the accident, that is the spinal stenosis that he had between L2, L3 and L4 was most likely aggravated by the accident and this herniated disc at L2 and L3 was probably brought on by that accident.”

The specialists testimony and the general practitioners testimony are contradictory. The earlier MRIs did not show a herniated disc. Dr. Naguit relied heavily on the history given by Claimant and the subjective complaints of Claimant. Dr. Naguit had no past medical records of Claimant. Dr. Naguit s testimony and the credibility thereof can best be tested in the light of his testimony concerning advising Claimant to go to the Mayo Clinic for further treatment. Dr. Naguit testified he did advise Claimant to go to the Mayo Clinic for further treatment. His rationale was that he had treated Claimant for three years and Claimant had surgery, all with no relief. It would be Claimants “best bet” to get another opinion and go to Mayo Clinic. Dr. Naguit went on to testify as follows:

° I’ve had patients that I've sent across the river to be seen at Barnes and St. Louis U and they spent all that money and don't get any relief, and then I send them over to Mayo Clinic and in just one visit they get the correct diagnosis and correct treatment, and they’re more happy about it and considering that he has had all the possible treatments, including surgical intervention for him, I think by telling him to go across the river, he’ll probably spend some more money without getting any relief. So I feel that if I want the patient to get the ultimate in treatment and diagnosis after having had no relief for the last three years, it is imperative that I refer him to a clinic which, in my own opinion, is probably superior to anyplace in the country, and that’s why I told him to go to Mayo Clinic.”

This testimony causes this Court to give less weight to the testimony of Dr. Naguit for the reasons set forth in this quoted passage of testimony and for the reason that the specialists’ opinions differ. It is important to note that Dr. Naguit never gave a basis for any of his opinions. The bare opinions standing alone do not support a finding of causation in regard to the back injury and spinal stenosis. A close review of the doctors’ depositions shows that Claimant’s major complaints related to a neck injury on September 30, October 8, October 15, November 7, and November 21, 1986. The very first complaint of lower back spasm was at the hospital on November 28, 1986. There had been no complaints of back pain prior to November 28, 1986, nearly two and one-half months after the accident. The diagnosis on November 28, 1986, was acute low back pain.

In December of 1986, Dr. Murphy thought Claimant had a chronic problem with muscle strain in the paraspinous muscles and in the truncal muscles. On July 7, 1987, an MRI showed degenerative disc disease of Ls-2 and L5-S1 without evidence of herniation. (Emphasis added.) A subsequent MRI on December 14, 1987, showed no significant change from the prior MRI and again was “without evidence of herniation.” Dr. Murphy, the specialist, did not diagnose a herniated disc.

The Respondent called no witnesses and offered no testimony in support of Respondents case. As incredible as the testimony was from Dr. Naguit, it is just as incredible to the Court that the Respondent failed to present any testimony. We must therefore decide the case without the testimony of Claimant s employer, the State truck driver, and an independent medical examination. This Court, however, cannot postulate as to what should have been presented but must and will decide the case on the evidence before the Court.

There are two issues before the Court, namely liability and damages.

As to the question of liability, the only evidence in the record tends to establish that Respondents agent operated Respondents vehicle in a manner that caused it to collide with the rear end of Claimants vehicle, and that the operation of Respondents vehicle was the sole and proximate cause of this accident. There is no evidence in the record from which it can be seriously contended that Claimant did, or failed to do, any act which caused or contributed to cause this collision. (Emphasis added.) Without the testimony of the State truck driver or any other witness to try to establish an unavoidable collision or some comparative negligence, we have only the testimony of the Claimant from which to determine the facts.

While a motorist struck from the rear is not always entitled to judgment as a matter of law and the facts of each case must be considered in resolving rear-end collisions, it is the driver approaching another from the rear who has the duty to maintain a safe lookout and it is he who must consider the possibility of having to stop suddenly. (Economy Fire and Casualty v. State (1984), 36 Ill. Ct. Cl. 214.) While Respondent disputes liability and asks us to look at the facts of the case, it must be stated again that the State failed to call the truck driver or any other witness to the accident to dispute the Claimants version. In the Economy Fire case, both drivers testified and the Court found some comparative negligence. We only have the Claimant’s version in this case and his testimony establishes liability. Claimant bears the burden of proving by a preponderance of the evidence that the State was negligent and that the State’s negligence was the proximate Cause of Claimant’s injury. (Mackowiak v. State (1982), 35 Ill. Ct. Cl. 315; Jager v. State (1986), 39 Ill. Ct. Cl. 21.) Respondent’s driver had a duty to maintain a safe lookout and not drive into the rear end of Claimant’s vehicle. Respondent’s driver’s breach of this duty was the proximate cause of the accident. (Guffey v. State (1987), 40 Ill. Ct. Cl. 179.) If Claimant caused this accident or was comparatively negligent, it does not appear in this record.

The issue of damages is a very difficult issue for the Court. The Claimant has the burden of proving his damages with certainty and absent such proof, no award may be entered. (Harris v. State (1989), 41 Ill. Ct. Cl. 184.) However, damages are not deemed uncertain merely because they are uncertain as to amount, as distinguished from those which are too uncertain to be recoverable because they are not the certain results of the wrong that has been committed. J.F. Inc. v. State (1988), 41 Ill. Ct. Cl. 5.

For the Claimant to recover, the Court must find that Claimant’s injuries were caused by the Respondent’s negligence by a preponderance of the evidence. There is no question that Claimant had significant medical problems, significant pain and suffering, significant and considerable medical bills, and significant lost wages after September 30, 1986. If we do find that the spinal stenosis and/or the.degenerative disc disease and/or the herniated disc and/or the acute low back pain were either caused or aggravated by the collision of September 11, 1986, then we must take the Claimant as we find him for purposes of finding the amount of damages. Gillmore v. State (1987), 40 Ill. Ct. Cl. 85.

Additionally, pursuant to Chapter 23, Section 11— 22 of the Illinois Revised Statutes, any award must be reduced by $8,943.79 which is the amount proven by the Respondent’s exhibit as the amount paid by the Illinois Department of Public Aid for medical assistance for Claimant from June 1,1987, through March 1,1989.

In determining damages, this Court preliminarily must determine what injuries were more probably than not proximately caused by the collision of September 11, 1986. Claimant claims injuries to both his neck and back as a result of the accident. After careful consideration of all the evidence, and all reasonable inferences to be drawn from the evidence, this Court first finds that the Claimant has failed to prove by a preponderance of the evidence that the back injury complained of was proximately caused by the September 11,1986, accident.

This finding is based upon several factors. First, the impact itself was a low impact collision resulting in only minimal property damage. The Claimant himself admitted that the only damage caused as a result of this collision was a small dent in the rear trunk.

Second, there is no credible medical evidence that the back condition resulting in surgery was more probably than not proximately caused by what occurred on September 11,1986, when this minimal impact occurred.

It is undisputed that Claimant had a pre-existing back condition, namely spinal stenosis and degenerative disc disease. Dr. Murphy, the neurosurgeon, is in the best position to offer an opinion as to the cause of the condition which he surgically treated. When addressing the causation issue, he stated, “[I] think it is possible that it could have aggravated the pre-existing condition.” In fact, Dr. Murphy admits he never had received a history of the accident. He further admits that he could not give any percentage of aggravation caused by the accident since he knew nothing of the accident. Accordingly, this Court finds Dr. Murphys purported opinion on causation to be speculative. It is without medical basis or foundation.

This Court likewise finds Dr. Naguits opinion on causation to lack credibility. While he generally states that the pre-existing back condition was aggravated by the accident, it is only a bare assertion on his part without any medical basis or foundation. This Court has already discussed above why any of Dr. Naguits opinions lack credibility. This includes his continued treatment of Claimant despite his belief that sending him to Mayo would be the best course to take care of his problems and the fact that he talks about a herniated disc when the treating surgeon makes no mention of the same.

Finally, Claimants own actions belie a finding that the back condition is in any way related to any trauma suffered in this minor collision on September 11, 1986. The first time Claimant sought any medical treatment at all was 19 days after the accident. He made no complaints of injury at the scene of the accident. When he went 19 days later, he complained only of neck pain. In the interim, he continued to work at his job as a maintenance person at Steak ’n Shake which included heavy lifting.

He continued to treat with Dr. Naguit after he began treatment on September 30, 1986, and again only mentioned problems with his neck. He admitted in cross-examination that he would tell the doctor all of the symptoms he was experiencing. He saw Dr. Naguit on October 8, October 15, November 7 and November 21, 1986, and made no mention of any back problems.

The first time the Claimant ever mentioned a low back problem was when he was seen at the hospital on November 28, 1986. This was nearly two and a half months after the accident. The diagnosis at that time was acute low back pain. Again, in the interim from the accident until this onset of acute low back pain, the Claimant had continued working as a maintenance person.

This Court cannot speculate as to what transpired to cause the Claimant to go to the hospital emergency room to get treatment for an acute low back condition. Neither can this Court speculate that a minor accident two and a half months before, which caused no immediate symptoms and did not require any medical treatment for a back problem, cause or contribute to cause this subsequent acute back condition. Accordingly, this Court finds that more probably than not the low back condition was not caused by the accident of September 11,1986.

This Court does find that the injuries more probably than not caused by the September 11, 1986, only relate to Claimant’s neck. This Court finds that Claimant has met his burden in this regard and has shown by a preponderance of the evidence that he suffered a cervical strain as a result of the collision. This is the condition for which Claimant first treated with Dr. Naguit. This is the condition which Claimant complained of to the doctor for the first few months. He is entitled to damages for medical expenses reasonably necessary to treat this condition and pain and suffering and disability associated with this aspect of his condition.

In determining the amount of damages to be awarded to Claimant for his neck injury, there is a difficulty in separating out the amount of medical expenses related to treatment of the neck condition alone and the amount of pain and suffering and disability solely associated with the neck condition and not the back condition. However, after a careful review of the evidence and medical bills presented by Claimant, this Court finds that the pain and suffering, disability and reasonable and necessaiy medical expenses relating to the neck injuries and the vehicle damage require an award in the amount of $35,000. This Court does find that the Claimant failed to properly prove any future medical expenses by a preponderance of the evidence as to any medical condition caused by the September 11, 1986, collision.

As previously stated, this award must be reduced by $8,943.79 pursuant to 305 ILCS 5/11 — 23. An award is therefore made to the Claimant, Bemie J. Gildehaus, in the amount of $26,056.21 and the Illinois Department of Public Aid is ordered to be paid $8,943.79 pursuant to 305 ILCS 5/11 — 23.

ORDER

Frederick, J.

This cause coming on for hearing on Claimant’s motion for a new trial or in the alternative, petition for a rehearing, and the Court having reviewed the motion, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That the Court’s opinion is not against the manifest weight of the evidence.

2. That Claimant was given a fair trial with the opportunity to present all relevant evidence.

3. That this Court carefully considered the evidence and the credibility of the witnesses in rendering its opinion.

4. Claimant failed to prove by a preponderance of the evidence that the back injury was causally connected to the low impact collision on September 11,1986.

5. That the alleged new evidence as to future damages (from the date of the trial) is not sufficient evidence to reinstate a new trial but was taken into account by the Court and previously considered by the Court in granting the award the Court made which included future expenses.

6. The evidence and record before this Court did not establish by credible medical evidence that the back injury and all the subsequent care were the result of the accident.

Therefore, it is ordered that the motion for a new trial or in the alternative, petition for rehearing is denied.


author: Montana, G.J. Montana, C.J. JANN, J.

text:
    (No. 87-CC-2150
    Warren Harris, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 22, 1989.

      Order filed May 25, 1989.

      Order filed March 29, 1994.

    Warren Harris, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Susanne Schmitz & Kimrerly L. Dahlen, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Montana, G.J.

Chief Justice Montana delivered the opinion of the Court.

Claimant filed his claim seeking damages against the Illinois Department of Corrections for loss of his legal transcripts and documents on February 23, 1987. Claimant alleged that in June of 1986, when he was transferred from Joliet to Danville, the Department of Corrections inventoried his legal papers, stored them, but then lost the documents. He claimed $5,000 in damages for loss of his legal papers. The State raised an affirmative defense that a set-off against a crime victims award for $1652.95 must be made against any recovery by Claimant.

Trial was held before the Commissioner on November 5, 1987. The evidence consists of the transcript of evidence, Respondent’s Exhibit “1," the departmental report, Claimant’s Exhibit “1 through 9,” and the crime victim’s award order in Howard v. State, 77 CV 493. This cause has been fully briefed by both parties.

The Facts

In May of 1986, Claimant was an inmate with the Illinois Department of Corrections. Claimant was transported to Chicago to testify in Federal court and was staying at the prison in Joliet. On June 17, 1986, all. of Claimant’s personal property, including his legal papers, were packed for Claimant’s trip to the prison in Danville, Illinois. The personal property was packed by Officer J.H. and inventoried. Claimant received the pink copy of the inventory and the yellow copy went with the property. The inventory record, Claimant’s Exhibit “1,” which was corroborated by the State’s departmental report, shows as inventoried one transcript and one stack of legal papers.

Claimant testified his property consisted of his court transcript, one stack of legal papers in a double garbage bag, some cosmetics, and a suit and shirt.

When Claimant arrived at the Danville prison on June 18, 1986, and was called in to receive his personal property, he noticed his bag of legal papers was missing. The officials at Danville attempted to locate the legal papers, but were unsuccessful. The missing legal papers consisted of about 1300 pages of common-law records. The transcript from Claimant’s trial was 185 pages and he had two depositions from a prior lawsuit. One of the depositions was a copy of the original. The evidence indicated the transcript of depositions would cost $300. The Claimant testified that to replace the lost documents would cost $50 and to replace his trial transcript it would cost $626.

Claimant’s Exhibit “4” is the Department of Corrections review board decision. The decision indicates the legal papers were shipped on the transfer bus but were not received at Danville. The claim was denied because there was no way the prison board could determine what was actually shipped because their employee only wrote down “1” court transcript and “1 stack” legal papers. The form used by the State had room to expand upon the nature of the personal property inventoried but was not filled out in this case by the officer.

The Claimant testified that the State lost an affidavit from a witness which he planned to use in a petition for post-conviction relief. The affidavit was part of the stack of legal papers. The witness cannot presently be located. Additionally, Claimant spent $14 in mailing to the Court of Claims.

The State brought out at the hearing that the Claimant was convicted of murder in 1977 for the killing of Ernest Ellis Howard. The lost papers were mainly related to his conviction. Both his appeal and post-conviction petition of the 1977 conviction were unsuccessful. With the assistance of counsel, Claimant filed a Federal habeus corpus petition in 1980. The petition was denied. His attorney had copies of some of his legal papers and his deposition. The lawyer paid for the deposition and Claimant did not have to pay for his original trial transcript as he was a poor person. He also had never purchased a record in his habeus corpus proceedings. The Court of Claims granted $1652.95 to Arthur E. Howard in cause 77 CV 493 for the funeral expenses of Ernest Ellis Howard as a crime victim’s award.

The Law

The State has a duty to exercise reasonable care to safeguard and return an inmate s property when it takes actual possession of such property, as during the course of the transfer of an inmate between penal institutions, or when the institution receipts for the property. Lewis v. State (1985), 38 Ill. Ct. Cl. 254; Doubling v. State (1976), 32 Ill. Ct. Cl. 1.

In this present case, the Claimant was transferred between penal institutions and received a receipt for his property. His trial transcript and legal papers were not returned. The loss of bailed property while in the possession of a bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. (Moore v. State (1980), 34 Ill. Ct. Cl. 114.) The State has not rebutted the presumptions of negligence and is liable for the loss of Claimant’s transcript and legal papers. There was no proof of due care.

The issue of value is more difficult. The Claimant has the burden of proving his damages or he cannot prevail. (Rivera v. State (1985), 38 Ill. Ct. Cl. 272.) Claimant testified that the cost to replace the depositions was $300, the cost to replace lost documents would be $50, and the cost to replace his trial transcript would be $626. The court has justified such awards at the cost to replace the transcripts. Willis v. State (1980), 34 Ill. Ct. Cl. 242.

However, the State argues that any recovery by Claimant must be off-set by the States prior payment to this crime victims father. (Ill. Rev. Stat (1985), ch. 37, par. 439.24 — 6.) Where the evidence in the case indicates that the Claimant is indebted to the State, then a set-off must be made. Progos v. State (1960), 23 Ill. Ct. Cl. 207; Choiniere v. State (1974), 30 Ill. Ct. Cl. 174.

The Claimant is entitled to $976 for damages, but the State is entitled to a recoupment of the entire amount towards the crime victim’s payment of $1652.95. The Crime Victim’s Compensation Act allows the State to be subrogated to the rights of the crime victim and to be paid back for the award. (Hamilton v. State (1985), 37 Ill. Ct. Cl. 452.) The Respondent properly raised this set-off in its affirmative defense and is entitled to the same. The State, in effect, has a lien for $1652.95 and may reduce an award to recoup that amount. (Gettis v. State (1975), 30 Ill. Ct. Cl. 922.) Where the set-off exceeds the amount the Claimant would recover, it has been the court’s practice to dismiss the claim. Dawson v. State (1983), 35 Ill. Ct. Cl. 874.

Accordingly, the amount due the State by the Claimant exceeds the award for the loss of the legal documents and the Claimant is denied a recovery.

Therefore, this claim is dismissed.

ORDER

Montana, C.J.

Claimant has filed a motion for a new trial. The Court has carefully considered Claimants submission. We find that it does not set forth sufficient grounds for the Court to vacate the order filed February 22,1989.

Accordingly, Claimants motion is denied.

ORDER

JANN, J.

This cause comes on to be heard on the Claimants emergency motion to vacate judgment, it appearing that due notice has been given, and the Court being advised, it is hereby ordered that the Claimants motion be, and is, denied.


author: JANN, J.

text:
    (No. 87-CC-3605
    Global Fire Protection Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 23, 1994.

    George A. Hesik, for Claimant.
    Roland W. Burris, Attorney General (Paul Arvites, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This matter came to be heard for trial on or about September 19, 1991. After hearing, both parties were afforded an opportunity to submit briefs, however, only the Claimant submitted a brief.

At trial, the evidence was for the most part not disputed and was received into evidence by way of stipulation. (See Defendants Exhibit 1, which is attached to the trial transcript.) As stated in the stipulation, the construction project which is the subject of this action is what was known at the time as the State of Illinois Center and known as the James Thompson Center (hereinafter “the Center”). The Center was constructed for the use of the State of Illinois by the Capital Development Board (hereinafter “The CDB”). The CDBs project executive for the Center was Mr. Frank Conroy. The architect/engineer for the Center was Murphy-Knight. Murphy-Knight prepared the construction contract documents for the Center, and provided architecture/engineering services during the construction of the Center. Murphy-Knights project manager was Mr. Ed Wilkas who is a licensed architect. Construction of the Center was let in several bid packages. The work in controversy in this lawsuit was bid package number four (4) which was issued on February 1, 1983. On June 2, 1983, Claimant Global Fire Protection (hereinafter “Global”) entered into a contract with the CDB, CDB contract number 83-070943, for the plumbing and fire protection work under bid package number four (4). (Defendants Exhibit 2). The contract stated that Global was to complete its work 450 days from June 2, 1983, which would be August 25, 1984. Global received an authorization to proceed with its work on June 30, 1983, and Global timely completed its work. The contract further provided in pertinent part that if a contractor such as Global failed to diligently execute progress on the contract, the contractor and its surety were to be given three days written notice so that the contractor could remedy the problem. Specifically, section 3.05 of the conditions of the contract states:

“RIGHT TO CARRY OUT THE WORK If the Contractor neglects or Ms to carry out the Work in accordance with the Contract or fails to perform any portion of die Contract, CDB may make good such deficiencies after giving tiiree working days written notice to the Contractor and his surety. This shall be without prejudice to any other remedy CDB may have. CDB may deduct for the payments then or thereafter due die Contractor the cost of correcting such deficiencies, including, but not limited to, the cost of additional Architectural/Engineering and Construction Management Services made necessary by such neglect or failure. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall be liable in such amount to CDB.”

In the course of performing its contractual duties, Global accidentally cored through conduit installed by another contractor, accidentally failed to seal around a riser as called for in the contract and cut holes in the drywall to install the fire protection sprinkler system, but did not patch the holes. As a result of the above contractual failures, the CDB issued three deductive change orders from the Global contract. These deductive change orders involved were numbers 27, 60 and 64. They amounted to $743, $2,949 and $26,763 respectively. (Defendants Exhibit 1.) The charges were the amounts paid to other companies to remedy the deficiencies in Global’s work. (Defendant’s exhibits 10, 11 and 12.) In regards to each of the deficiencies in Global’s performance for which there were deductive change orders, neither Global or Global’s surety was given three days notice by the CDB as required by the contract. The Respondent produced no evidence that Global or its surety were given any written notice of any deficiency in its performance of its contractual duties. In addition, Global was never notified of the deficiencies which were the subject of these deductive change orders. Global produced specific evidence that it attempted to prevent the deficiencies by, for example, seeking access panels for its sprinkler system.

The dispute in this case centers around whether the Respondent was permitted to make the deductive change orders and therefore, could lawfully deprive the Claimant of $30,455. Paragraph 3.05 of the contract clearly states that the CDB must give the contractor and his surety three days written notice before making good on the deficiency. The purpose of giving the contractor and his surety this short period to cure any defect is obvious. The Claimant contractor submitted evidence that he never received the written notice required by the contract. The Respondent submitted no evidence that it had given the required three days written notice which as the language of the contract clearly indicates is a condition precedent to the CDB taking remedial action.

Although given ample opportunity, the Respondent has offered no argument or explanation as to why the plain language of section 3.05 of the contract drafted by the Respondent and its agents should not control and permit Global to recover.

The plain language of section 3.05 of the contract required that the contractor be given three days written notice so that he could cure any deficiency with regard to his performance. No such notice was given and a condition precedent to the CDB s action was not met. The Claimant should be paid $30,455.

On October 1, 1993, an order was entered herein directing that certain details on the funding of the project be filed. That information was submitted May 11, 1994. In its response to the Courts order, the CDB stated that no funds lapsed on the project. The CDB apparently used the money deducted to pay for other aspects of the project. To actually enter an award under such circumstances would be tantamount to making a deficiency or supplemental appropriation. See Graham, O’Shea & Hyde v. State (1992), 44 Ill. Ct. Cl. 175, and line of cases cited therein.

The claim will have to be denied. However, in fulfillment of our responsibilities as an advisory body to the General Assembly and for purposes of possible further consideration of this matter by the General Assembly, if an appropriation is made, the Claimant should be paid $30,455.


author: Sommer, C.J.

text:
    (No. 87-CC-3623
    Karen L. Henning and Robert F. Henning, Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 10, 1993.

    Ariano, Anderson, Bazos, Hardy, Kramer & Castillo (William Castillo, of counsel), for Claimants.

      Roland W. Burris, Attorney General (Peter Bustamante and Elizabeth Looby, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This is an action by the Claimants, Karen L. Henning and Robert F. Henning (hereinafter referred to as Mrs. Henning and Mr. Henning respectively) against the State of Illinois, Respondent, for personal injuries sustained by Mrs. Henning when the vehicle in which she was a passenger was struck by a vehicle owned by the State and operated by a State employee.

Facts

On July 4, 1985, at approximately 8:00 p.m., the Claimants, Mr. and Mrs. Henning, were travelling westbound on Route 20. Mr. Henning was driving the vehicle, and Mrs. Henning was in the right front passenger seat. Route 20 is a divided highway with two lanes for eastbound and two lanes for westbound traffic. The Hennings’ vehicle was travelling westbound in the far right-hand lane.

At the time of the incident, the traffic was heavy and gradually slowing as vehicles approached the McLean Boulevard exit. The Claimant’s vehicle was struck from behind by a State-owned vehicle driven by Leonard Anderson, a State of Illinois employee working at Herrick House in Bartlett, Illinois. Mr. Anderson was driving in the course of his duties.

Mr. Henning testified that he remained in the far right-hand lane the entire time he was travelling on Route 20. He further stated that he was travelling about five miles per hour when he noticed the vehicle driven by Anderson rapidly approaching from the rear. Mr. Henning described the impact as a “very powerful, very dramatic, high impact,” other witnesses described the impact in similar terms.

Mr. Anderson, on the other hand, testified that the Hennings’ vehicle was travelling westbound in the left lane of traffic when it moved into the right lane, cutting off Mr. Anderson’s vehicle. Anderson testified that he was unable to stop, and he struck the Hennings’ vehicle.

Anderson was issued a citation for failure to reduce speed to avoid an accident, and he subsequently appeared in Court and pled guilty to the offense.

Mrs. Henning seeks damages against the Respondent for medical bills, pain and suffering, disability, and lost earnings as a result of the accident. Mr. Henning seeks damages for loss of consortium.

Liability

It is undisputed that on July 4, 1985, Leonard Anderson was employed by the State of Illinois Department of Children and Family Services and that he was within the scope of his employment at the time of the incident. It is also undisputed that the Claimants vehicle was struck from behind by the State-owned vehicle operated by Anderson and that Anderson was issued and pled guilty in court to a citation for failure to reduce speed to avoid an accident.

Operators of State vehicles are charged with the same duty of care as other drivers and are liable for damages proximately caused by their negligent acts. (Hewitt v. State (1981), 35 Ill. Ct. Cl. 288, 289; Santiago v. State (1977), 31 Ill. Ct. Cl. 322.) Where a case involves a rear-end collision, that fact does not automatically create an inference that the driver of the rear car was negligent. It is for the trier of fact to determine whether the rear driver was acting reasonably under the circumstances. A drivers duty of reasonable care includes keeping a proper lookout and keeping his vehicle under control so as to avoid collisions. In addition a driver is required to maintain reasonable speed so that his vehicle may be safely stopped within the distance that objects may be seen ahead. Hewitt v. State (1981), 35 Ill. Ct. Cl. 291.

The courts have also repeatedly held that an admission of guilt in a criminal proceeding is an admission against interest on that issue in a subsequent civil proceeding. People v. Chavez (1985), 89 Ill. Dec. 525, 480 N.E.2d 1268.

In this case the facts strongly support the conclusion that Anderson failed to act reasonably under the circumstances. It is our finding that Anderson was negligent, and his negligence was the proximate cause of the resulting injuries. It was a clear, dry summer evening and the traffic was heavy. Anderson failed to maintain a proper lookout and a reasonable speed for the heavy traffic conditions. There was no evidence to support Anderson’s testimony that the Claimant “cut him off.”

It is undisputed that the traffic was heavy and slowing, and even if the Claimant’s vehicle had changed from the left-hand lane to the right-hand lane in front of Anderson, Anderson should have been able to reduce his speed and avoid the collision instead of creating a high impact collision. The fact that Anderson appeared in Court and entered a plea of guilty to the traffic offense further supports the Claimant’s contention of Anderson’s negligence.

Damages

Mrs. Henning testified that the night after the accident she suffered from a headache, stiff neck, and a stiff back, and was unable to hold her head up by the next morning. On July 5, 1985, she went to Sherman Hospital Emergency Room where she was fitted with a cervical collar. After the emergency room treatment, Mrs. Henning made an appointment with Dr. Edward Kinn, an osteopath, and saw him on July 8, 1985. At that time, Mrs. Henning was experiencing weakness and tingling in her neck, headaches, tightness and pain in her entire back. Dr. Kinn gave Mrs. Henning an osteopathic manipulation to loosen her muscles and realign the bones in her back, and a dynawave. Mrs. Henning treated with Dr. Kinn two to three times a week for the remainder of 1985.

Mrs. Henning testified that throughout 1985, although her neck became better, she was having increased pain in her lower back and left leg such that on some days she could not walk and experienced sharp shooting pains in her legs. In March 1986, Dr. Kinn hospitalized Mrs. Henning for the severe pain in her lower back and legs. Mrs. Henning testified that the pain severely limited her normal activities. At her discharge, Dr. Kinn diagnosed her with left sciatic neuritis secondaiy to a herniated disc.

From April 15, 1986, through approximately October 22, 1987, Mrs. Henning treated with Dr. Carey B. Dachman, a board certified specialist in rheumatology, a specialty which covers all disorders of the muscles and skeleton including arthritis. Under Dr. Dachman’s care, Mrs. Henning was subjected to hundreds of trigger-point injections and seven or eight epidural steroid injections into the lower lumbar area and physical therapy, consisting of heat packs, massage, and electrical stimulation. From April 1986 through October 1987, while under Dr. Dachmans care, Mrs. Henning noticed that the pain in her muscles, joints, lower back and legs improved intermittently for short periods of time. Dr. Dachman noted that the results of an MRI performed on Mrs. Henning on March 15, 1986, were consistent with a herniated disc located in the lower lumbar spine. Dr. Dachman performed an EMC on Mrs. Henning in April 1986, which confirmed that the disc in question was pinching a nerve. After treating Mrs. Henning in April 1986, Dr. Dachman diagnosed her as having a herniated disc and a secondary problem called fibrositis, which is an inflammation of all of the soft tissues, which manifests itself through tissue tenderness and is brought on by trauma. Treatment includes physical therapy and muscle relaxers. Dr. Dachman also diagnosed Mrs. Henning as suffering from facet disease, which is similar to fibrositis except that the inflammation is in the joints, rather than the soft tissues. The treatment for facet disease is identical to the treatment for fibrositis. During the latter part of the summer of 1986, Dr. Dachman prescribed epidural injections for Mrs. Henning. In late August 1986, Dr. Dachman diagnosed Mrs. Henning as suffering from severe facet disease. Dr. Dachman also testified that both fibrositis and facet disease can become chronic, meaning long-standing and permanent. Dr. Dachman continued to treat Mrs. Henning through 1986 and late 1987 on approximately 40 occasions.

After November 1987, Mrs. Henning discontinued treatment with Dr. Dachman until August 1991; during this period Mrs. Henning resumed treatment with Dr. Kinn. Dr. Kinn prescribed osteopathic manipulators, dynawave, and medications. Dr. Kinn’s testimony substantially concurred with Dr. Dachman s regarding Mrs. Henning’s condition and the causal connection of the auto accident to the injury. Dr. Kinn also offered unrebutted testimony that in his opinion, based upon a reasonable degree of medical certainty, Mrs. Henning suffered from severe chronic pain syndrome which is permanent in nature and will require additional medical treatment in the future.

On August 7, 1991, Mrs. Henning returned to Dr. Dachman with the same complaints for further evaluation. Dr. Dachman ordered an MRI and CAT scan, and Dr. Graham performed an EMC in late August 1991. Both the EMC and the CAT scan showed a bulging disc in the lower lumbar spine.

Finally, Dr. Dachman testified that based upon a reasonable degree of medical certainty, the condition with which he diagnosed Mrs. Henning in 1986 and again in August 1991, and for which he has rendered treatment to her, bore a causal relationship to her automobile accident of July 4, 1985. Dr. Dachman testified that the car accident in 1985, and the trauma she sustained, were the proximate causes of Mrs. Henning’s condition. Dr. Dachman gave unrebutted testimony that Mrs. Henning’s conditions were permanent, and that Mrs. Henning would require further treatment, consistent with the treatment she is receiving now, for years to come. Dr. Dachman also testified that based upon a reasonable degree of medical certainty it was his opinion that Mrs. Henning would not be able to engage in full-time employment which would involve any lifting.

The Respondent did introduce evidence of a prior existing back complaint. Mrs. Henning had been treated by Dr. Kinn on November 2, 1981, for strain in the cervical spine, and was treated with osteopathic manipulation and dynawave. Mrs. Henning was again treated by Dr. Kinn on November 5, 1981, for lumbar-sacral and sacroiliac back pain. These strains and back pain were attributed by Dr. Kinn to Mrs. Hennings carrying her infant and were stated to be common among mothers with young children and were not permanent.

From the evidence presented, this Court finds that the proximate cause of Mrs. Hennings injuries was the auto accident of July 4, 1985. Additionally, this Court finds that Mrs. Henning’s injuries were proven to be objective by the testimony of Drs. Kinn and Dachman and the fact that Mrs. Henning underwent literally hundreds of injections during the 1986-87 period in an attempt to relieve her condition. The Court believes that Mrs. Henning would not have undergone such if she were not genuinely in distress.

The Claimants have requested damages in the following categories: past and future medical bills, past and future pain and suffering, disability and lost earnings, and loss of consortium by Mr. Henning. .

In the matter of Mrs. Henning’s medical bills, we find that at the hearing that certain medical bills were stipulated to, others were testified to by Dr. Kinn and Dr. Dachman as being necessary and reflecting reasonable and customaiy charges, and incurred as a result of the injury complained of. The Claimant, Mrs. Henning, testified to other bills indicating that they had been paid. The State did not object to Mrs. Hennings testimony, but did by agreement exclude portions of the bills offered by Dr. Dachman as not being incurred as a result of the injury complained of.

The Claimants brief indicates that the total of the medical bills admitted into evidence was $45,000. The State did not object to this amount in its brief. The Court, upon detailed examination of the transcript and the voluminous bills, finds the sum of $45,000 is substantially accurate.

Mrs. Henning can certainly anticipate future medical treatment for her condition. To this point, Mrs. Hennings treatment has been conservative. There was no testimony in the record concerning possible surgical intervention. On the other hand, Dr. Dachman testified that Mrs. Henning may require a conservative treatment of therapy, medication by injection, and anti-inflammatory drugs for many years. At the trial longevity tables were introduced which showed that Mrs. Henning could expect on the average to live another 43.3 years. Dr. Dachman and Dr. Kinn testified that her condition was permanent, but whether conservative treatment would be necessary throughout Mrs. Hennings life was not stated. We find that an award discounted to present cash value of $20,000 for future medical treatment is proper. If surgery is undertaken that amount would be adequate for both the surgery and recovery, and if conservative treatment is chosen, she would have available to her sufficient funds for said treatment.

In a claim such as this, we find that though disability and pain and suffering are two separate bases for recovery under the law, they are intertwined. But for the pain, there would be no disability, and to the extent the pain is relieved, the disability would diminish.

In the claim for disability, we find that the Claimant has suffered injury which has diminished the quality of her life. Mrs. Henning was previously quite active, but now many activities that Mrs. Henning engaged in before the injury are not presently possible because of her disability. Such activities include gardening, normal maintenance work around the house and yard, sports and school activities. Both physicians testified that Mrs. Hennings condition was both permanent and chronic. Therefore, for both past and future disability, we award the Claimant $100,000.

In the claim for pain and suffering, we find that the Claimants pain and suffering was substantial after the accident. She was in such pain that she could not walk and had to be hospitalized. After her hospitalization, in order to reduce her pain, she underwent hundreds of injections. Finally, she was able to return to Dr. Kinn’s care for osteopathic manipulations, dynawave treatments, and medications. Later she went back to Dr. Dachman just prior to trial and had further tests. Both doctors testified that Mrs. Hennings condition was chronic and permanent and that further treatment would be necessary for many years to come. We find that Mrs. Henning was in great pain for the first year or so after the accident, but after being in the care of Dr. Dachman until October of 1987, she returned to Dr. Kinn who continued his conservative treatment of manipulation, dynawave, and medication. Whether Mrs. Henning’s pain had subsided when she returned to Dr. Kinn is not in the record. We do note that she had no further hospitalization between October 1987 and 1991, nor were substantial medical tests performed on her in that period. We conclude that though the Claimant had pain, the treatments of Dr. Dachman and Dr. Kinn alleviated the pain somewhat. Mrs. Henning reported at the time of the trial that she had difficulty sleeping because of pain. She testified that she sleeps on the couch three nights a week in order to get sleep, but her sleep is disturbed eveiy three or four hours because of pain. Therefore, for both past and future pain and suffering, we award Mrs. Henning $100,000.

The Claimant has made a claim for lost earning capacity. The test is whether the Claimant is able to perform meaningful work for which she is qualified. There is nothing in the record to indicate that the Claimant had any particular training or educational background. Mrs. Henning testified that it was her desire to become a nurse. She had taken introductory courses in nursing the year prior to her accident and had worked at doctors’ offices and hospitals. She was not working at the time of the accident nor was she taking nursing training. This Court finds that whether Mrs. Henning would have become a nurse is speculative. Dr. Dachman testified that the Claimant could do sedentary work but could not work as a nurse as such would require lifting. The Claimant introduced no other evidence of her desire to return to work, and was not working at the time of the accident, but she did have a work history. No evidence was introduced to show a diminution of her earning capacity because of her condition if she were to return to work which she had previously done or for which she was qualified. Therefore, we find that Mrs. Henning has not proven her claim for lost earning capacity. We will make no award for lost earning capacity.

As for the claim of loss of consortium, there was very little testimony on the matter. The Claimant’s post-trial brief does not cite consortium as an element of damages sought, though the reply brief does. Mrs. Henning testified that she and her husband previously engaged in extensive social activity including bowling together often, but since the injury the couple’s social activity has declined to almost nothing. Mrs. Henning also testified that there was a drastic decline in the couple’s sexual activity since the injury. No claim was made for loss of services, nor was any value established for any loss of services. The Court finds that the Claimants have proven a minimal loss of consortium, for which we will award to Mr. Henning the sum of $5,000.

In summary, we award:

$ 45,000 — past medical

20,000 — future medical

100.000— past and future pain, suffering

100.000— disability

5,000 — loss of consortium $270,000 — Total

Furthermore, a lien in the amount of $3,791.38 has been filed by a medical insurer, ANPAC. We will deduct this amount from the Claimant’s award.

Therefore, it is ordered that ANPAC be awarded $3,791.38 in satisfaction of its lien, and Karen Henning be awarded the sum of $261,208.62 in full and complete satisfaction of her claim, and that Robert Henning be awarded $5,000 in full and complete satisfaction of his claim.


text:
    (Nos. 87-CC-3636, 87-CC-4231 cons.
    Ruth Crowell, Everett Steele, and John Herron et al., Claimants, v. The State of Illinois, Respondent.

      Order filed January 6, 1994.

    John Herron and June Ann Trosper, pro se, for Claimants.
    Creswell, Fares & Rayn (David J. Fares, of counsel), for Claimants Crowell & Steele.
    Roland W. Burris, Attorney General (Colleen McCloskey von Ohlen, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This cause coming to be heard on Respondent’s motion for summary judgment, due notice having been given and the Court being fully advised in the premises, the Court makes the following findings:

These two lawsuits arise from the collision of two automobiles on June 26, 1986, at the intersection of Illinois Route 17 and Stateline Road. On June 26, 1986, Claimant Everett Steele was driving his car westbound along Illinois Route 17. Steeles sister, Ruth Crowell, was a passenger in Steeles car. The weather was good.

Claimant John Herron was travelling southbound on Stateline Road, a gravel road. His father, Raymond Herron and brother-in-law Joseph Horvath were passengers in Herrons car. At approximately 8:30 a.m., Steeles car collided with Herrons car at the intersection of Route 17 and Stateline Road.

Both the “Steele parties” and “Herron parties” filed suit against the State in this Court, and these two cases have been consolidated. However, in addition to the present action, this accident instigated other litigation as well. On May 18, 1989, the “Herron parties” settled the circuit court action with the “Steele parties,” paying $11,000 and $4,000 to Steele and Crowell respectively.

In this action, Claimants allege that the State is liable for their personal injuries resulting from the accident because the stop sign that was supposed to control the traffic on Stateline Road at its intersection with Route 17 was down. The accident occurred in Kankakee County, Illinois. The area in which the accident occurred is maintained by District 3 of the Illinois Department of Transportation (IDOT). District 3 covers approximately 2200 miles of State highway, encompassing 11 counties.

Route 17, a paved State highway, is maintained by IDOT’s District 3. Stateline Road is not maintained by IDOT. According to Edmund Wallens, the District 3 traffic engineer for IDOT, Stateline Road appears to be a county road to the south of its intersection with Route 17. To the north of its intersection with Route 17, Stateline Road is gravel and appears to be a township road. Stateline Road is also a “country road,” which does not have a center line because it consists of gravel, which cannot be painted.

It is not disputed that at the time of the accident, there was not a stop sign at the intersection at issue. It is also undisputed that although Stateline Road is not maintained by IDOT, the Department does maintain the stop sign at the intersection of its Route 17 with Stateline Road, on the northwestern comer. IDOT sign maintainer Richard Arnold testified at deposition that the last time he patrolled the intersection at issue before the accident was sometime between May 20, 1986, and June 6, 1986. Arnold did not testify that during this patrol of the intersection at issue he noticed that the stop sign was missing. Department policy mandates that when a downed stop sign is reported directly to the field office, a temporary sign is to be erected within four hours and a permanent sign is put up within two days of the notification.

There is no firm evidence concerning the date which the stop sign went down. Yet, it is clear that after the accident, when IDOT had notice that the stop sign was down, it immediately erected a new one. Specifically, IDOT sign maintainer Arnold erected a brand new stop sign on the day after the accident.

IDOT is notified of missing or malfunctioning traffic devices by a variety of means. First, every IDOT worker, whether they are with the Bureau of Maintenance or Traffic, looks for downed signs during the daily course of their duties. Second, members of the Departments Bureau of Traffic make routine sign inspections as well. IDOT also receives notice from the State Police if a stop sign is down or missing. Additionally, IDOT receives telephone calls from citizens concerning complaints about the signs.

The facts at bar clearly indicate that IDOT did not have notice of the missing sign before the accident. Stanley Martin, an IDOT field supervisor, testified at deposition that “it (the stop sign) was never reported to the Department as being down.” Mr. Martins testimony that the Department did not have notice that the stop sign was down is corroborated by Edmund Wallens, District 3 s traffic engineer. Wallens testified that besides the telephone call that sign maintainer Arnold received after the accident, the Department never received any complaints about the stop sign at issue. Furthermore, in Respondents answers to Claimants’ interrogatories, A. Thomas Muraro, chief of IDOT’s Bureau of Claims, answered under oath that IDOT never received any complaints about the traffic controls at or near the accident site prior to the accident.

Conclusions of Law

Summary judgment is to be granted if the “pleadings, depositions, admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ill. Rev. Stat. 1991, ch. 110, par. 2—1005.

Although the State has the duty to maintain its highways in a reasonably safe condition, it is not the “insurer against all accidents which may occur by reason of the condition of its highways.” (Scroggins v. State (1991), 43 Ill. Ct. Cl. 225, 226-27.) A defective condition on a State highway is not in itself negligence on the part of the State. (Id. at 226.) This Court has also stated that the State has no absolute duty to discover and remedy all defects, and it would be unreasonable for the State to be held liable for every possible defect in its highways. Furthermore, a defect must be substantial enough and exist for such a length of time that reasonable persons would conclude that immediate repairs should be made or warning signs posted. Stege v. State (1972), 27 Ill. Ct. Cl. 399, 403.

This Court has consistently held that in order to prevail on a negligent highway maintenance claim, a claimant has the burden of proving that the State had either actual or constructive notice of the dangerous condition. Scrog-gins at 226-27, citing Stills v. State (1989), 41 Ill. Ct. Cl. 60, 62.

As evidenced by the deposition testimony of Stan Martin and Edmund Wallens, in addition to the departments response to interrogatory number 11, the State did not have actual notice that the stop sign at the intersection of Route 17 and Stateline Road was down. There were clearly no reports or complaints made to the Department concerning the missing stop sign.

Just as Claimants cannot prove that the State had actual notice of the downed stop sign, nor can they prove that the condition existed for a long enough time to put the State on constructive notice of its existence. Constructive notice is imputed to the State where a condition by its evident nature, duration and potential for harm should necessarily have come to the attention of the State so that the State should have made repairs. Scroggins at 227-28.

In Webee v. State (1985), 38 Ill. Ct. Cl. 164, this Court was presented with a downed stop sign case. In that case, two cars collided at an intersection where the stop sign that was maintained by IDOT was down. As in this case, there was no evidence that the State had actual notice of the missing stop sign.

Thus, the determinative issue before us is whether the State should be charged with constructive notice of the defective condition. In the Webee case, we found that “the evidence at trial indicated that the sign was missing for a period of a month, possibly as long as six weeks.” Id. at 168.

As already noted, IDOT sign maintainer Richard Arnold testified that he patrolled the intersection at issue sometime between May 20, 1986 and June 6, 1986. Thus, giving a liberal interpretation which yields the greatest possible benefit to Claimants, it is clear that because of Arnolds inspection of the site in May/June of 1986, the stop sign could only have been down since May 20, 1986 at the latest. This would have been five weeks before the accident. Although in Webee v. State we found that the absence of a stop sign for four to six weeks is a long period of time, we also found that “it should be noted that the absence of a stop sign on a rural, gravel-topped road is not likely to be noticed as quickly as on a major thoroughfare.” Id. at 168-69.

Similarly, the stop sign at issue controlled traffic on Stateline Road, a gravel road maintained by a township and a county. Stateline Road is a country road, not a major thoroughfare, and because of its nature, a missing stop sign would not be as noticeable on it as it would be on a busier road. Just as we found in Webee v. State that the State should be allowed a longer period of time before it is charged with constructive notice of a downed stop sign on a country road in a small town or village, so too we find that the State should be granted a longer period of time before it is charged with constructive notice of the missing stop sign on the gravel-topped Stateline Road. Thus, we hold that in the case at bar the State did not have constructive notice of the missing stop sign at issue.

Conclusion

The law is clear that in order to prevail on a claim that the State was negligent in the maintenance of its highways, a claimant must prove that the State had notice of the alleged defect. As outlined above, it is clear from the deposition testimony and sworn interrogatory answers of the Department’s employees that the State did not have actual notice of a defective condition at the accident location. No calls were ever received by IDOT from the State Police or citizens informing IDOT that the sign was down.

Similarly, the State cannot be charged with constructive notice of a defect. The last inspection of the intersection occurred sometime between May 20, 1986, and June 6, 1986. The accident occurred on June 26, 1986. Consequently, even giving the benefit to the Claimants that IDOT did not inspect the intersection before the accident since May 20, 1986, and the stop sign went down immediately thereafter, this is not enough time to put the State on notice of a downed stop sign on a rural, gravel-topped road. Therefore, because the State cannot be charged with constructive notice of the missing stop sign, there is no genuine issue of material fact, and the State is entitled to judgment as a matter of law.

It is hereby ordered that Respondent’s motion for summary judgment is granted, thereby terminating this case.

      Raymond Herron died on April 4, 1987, of cancer. (Exhibit “B” p. 39.) A claim for Raymond Herron’s personal injuries has been brought by his administrator, June Ann Trosper.


author: Mitchell, J.

text:
    (No. 88-CC-0342
    Kimberly White, Claimant, v. The Board of Governors of State Colleges and Universities and Louis V. Hencken, Respondents.

      Opinion filed October 15, 1993.

    Pedersen & Houpt, for Claimant.
    Dunn, Goebel, Ulbrich, Morel & Hundman (Helen E. Ogar, of counsel), for Respondent.
   OPINION

Mitchell, J.

Kimberly White was a student at Eastern Illinois University “EIU” residing from August, 1983 to December, 1984 in Lawson Hall. In January, 1985 she moved to room 429 in Taylor Hall. In anticipation of her junior year, she signed a housing contract dated April 8, 1985, with the university. The cost of $1,074 per semester can be proportioned to 57% ($612.18) for food costs and 43% ($461.82) for room costs.

Meeting with Lou Hencken, housing director for EIU, in mid-November of 1985, she told him of her wish to move into Sigma sorority house in January. There was no mention by her of any health problems. Hencken replied that university policy would not allow her to cancel the contract, but she could live in a different dorm or a different room in her current dorm. White declined the two alternatives and in December of 1985 she paid $1,074 for her second semester, remaining in room 429 at

Shortly after Whites meeting with Hencken, her father, Robert White, phoned John Flynn (a fraternity brother and director of financial aid at EIU) to ask how his daughter could cancel the contract. Flynn stated that unless she met one of the circumstances specifically set forth in the contract she could not be released. There was no mention of any health problems but only her wish to move into the sorority housing.

In early December, Robert White called Hencken and talked about the possibility of Kimberly White moving into off-campus housing. Once again, no mention of health problems was made.

During this period, EIU had conducted a survey and issued a press release stating that there was “asbestos containing material” in certain university buildings; however, Kimberly’s dorm room was not listed. In January of 1986, a memo to the residents from Hencken was distributed stating that “asbestos containing materials” were found in Taylor Hall. On or about January 17, 1986, Kimberly advised Hencken by letter that she would be moving out of Taylor Hall and that she was requesting a refund of the payment for the semester. She subsequently paid approximately $1,074 for off-campus room and board.

After the university did not refund her money, she filed suit for breach of contract, seeking actual damages and attorney’s fees (Count I), and breach of implied warranty of habitability, seeking punitive damages, interest and attorney’s fees (Count II). On December 28, 1987, the Court of Claims dismissed Count II for failure to state a cause of action. Count I was tried before Commissioner Michael E. Fryzel on July 14, 1990.

Prior to her January 17,1986, letter to Louis Hencken, there is no documented evidence that Kimberly White advised any person at the university or a doctor of any health problems (other than her allergies and childhood asthma). On the contrary, her physical for the swim team found she was healthy. In her several conversations with coach Ray Padovan wherein he expressed concern that she was missing practices (due in his belief to her time being taken up with sorority matters), she never mentioned any health problems that were causing her to miss practice. Kimberly White produced no witnesses (other than her father) or evidence of her complaints about her health during the time period before she moved out of Taylor Hall.

There is no proof that her dorm building contained asbestos. Per Jack Richie, even if the material around the elbow pipe was asbestos, it was well “encapsulated,” with “no punctures, nothing friable that would indicate there would be any cause for any human concern.” The air samples they took showed figures well below EPA/OSHA action levels. There is no evidence that any unreported health problems Kimberly White may have had were caused by her living conditions. Even if she believed such to be the case, she knew she had the options of moving to another room in that dorm or an entirely different dorm and declined both options.

The university contracted to provide Kimberly White with room and board for the academic year 1985-86. There is no evidence that they did not meet those contracted requirements — there is no breach of contract by the university. There is no statute, rule of law, stipulation or agreement which would allow Claimant payment for attorneys fees and costs of litigation. Therefore, the reasonableness of such fees (which could be proven at a later date) is moot. Therefore, judgment is for the Respondent and against the Claimant.