text:
    (No. 86-CC-1532
    Archibald Copland, Individually and as Special Administrator of the Estate of Scott Copland, Deceased, Mary Ann Copland, and Kathleen Copland, Claimants, v. The Illinois Department of Mental Health and Developmental Disabilities and Howe Developmental Center, Respondents.

      Opinion filed January 19, 1989.

    Robert A. Clifford & Associates (Richard Pullano, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This claim was filed by Archibald Copland, the father and special administrator of the estate of Scott Copland, on behalf of the estate of Scott Copland, deceased, and also on behalf of himself, his wife, Mary Ann Copland, and his daughter, Kathleen Copland Buzen.

Evidence was taken on July 7 and 8, 1988. The record includes a factual stipulation, the testimony of each of the Coplands, exhibits to which the witnesses made reference during the course of the hearing, and certain documents of the Department concerning family visits made to Scott Copland.

The stipulation signed by each party prior to the beginning of evidence included the following facts: Scott Copland was a resident and under the complete care of the Howe Developmental Center in Tinley Park, Illinois, on and prior to April 28, 1985. Scott Copland resided in Quad 3, of the four quads located in Willow Hall at Howe Developmental Center. There were approximately 40 residents living in this quad. Most of these residents were severely mentally and physically handicapped. These residents required 24-hour attention. The technicians assigned to this quad, employees of the Howe Developmental Center, worked eight-hour shifts.

On April 28, 1985, there were six technicians assigned to Quad 3. Each technician was assigned to care for a certain number of the residents. Ms. Mary Ann Townsend was the technician responsible for the care of Scott Copland and several other residents. She had cared for Scott in the past and was familiar with his mental and physical limitations. She knew that Scott was retarded and had the mental capacity of a three year old. She also knew that Scott was an epileptic, could have seizures at any time and that he was on a prescription medication for his epilepsy.

On the morning of April 28, 1985, certain of the technicians decided to have a barbecue for the residents. This would require someone going to the local food store for the food items. At approximately 9:30 a.m., Ms. Townsend took Scott Copland to the bathroom. Scott had been in a wheelchair. She took him out of his wheelchair and placed him on the toilet. She took a bedsheet that was hanging in the bathroom, wrapped it around Scott’s waist, and tied it to the back of the toilet. In effect, Scott was tied to the toilet. She then took Scott’s wheelchair, turned it around and pushed the back of the wheelchair up against his legs. She then left Scott Copland alone. At that time Scott had no injuries or bruises on or about his face. It was approximately 15 or 20 minutes later that Ms. Townsend left for the grocery store with technicians Jesse Balasingame and Frances Wiggins. They would be gone approximately two hours. While out, they also stopped at a flea market.

Three technicians remained at Quad 3 during this time period. They were Rita Jones, Homer Talley and Josephine Evans. After the three technicians left for the store, Ms. Jones took three of her residents into a back bedroom where she fell asleep for approximately one-half hour. She awakened when Ms. Evans called out that it was time for lunch. During this same time period, Homer Talley took approximately 10 to 12 residents outside. The residents were allowed to play kickball while Mr. Talley cleaned and started the grill. Josephine Evans was left to care for the remainder of the residents. At no time while the three technicians were gone did Ms. Jones, Mr. Talley or Ms. Evans ever see or check on the status of Scott Copland.

The three shopping technicians returned to the quad at approximately 12:00 noon. When Ms. Townsend got back to the quad, she went to the dining room and realized that Scott Copland was not there. She then walked to the bathroom to check to see if Scott was there. When she arrived, she found Scott sitting on the toilet with his head hanging over the back of the wheelchair. He still had the bedsheet tied around his waist and to the back of the toilet. She lifted his head up and noticed that his face was discolored. It was at this point that Ms. Townsend realized that Scott Copland was dead. She performed no mouth-to-mouth resuscitation or lifesaving techniques. She placed his head down and ran to the dining room to get help. Ms. Evans and Ms. Jones returned to the bathroom with Ms. Townsend. They removed Scott from the toilet and put him in his wheelchair, took him to his bedroom and put him in his bed. The paramedics arrived shortly thereafter and transported Scott to a local hospital where he was formally pronounced dead.

Further evidence was presented through the stipulation regarding a cover-up which was attempted by the employees of the Howe Developmental Center. The Court does not feel this evidence is relevant in evaluating the damages to be awarded to the Claimants.

Mary Ann Townsend was later indicted by a Cook County grand jury and pleaded guilty to one count of abuse and gross neglect of a long-term care facility resident and one count of official misconduct. She was placed on probation. All of these facts have been stipulated to.

The Department of Mental Health and Developmental Disabilities and Howe Developmental Center concede that their agents and employees left Scott Copland in a totally unattended manner for an excessive period of time after tying him to a toilet with a bedsheet, that they failed to monitor Scott Copland in an appropriate manner and that their negligent acts resulted in the injuries which caused Scott Copland’s death on April 28,1985.

The sole issue remaining for the determination by this Court is the amount of compensation to be paid to the estate of Scott Copland for the survival action and to his remaining family members for their loss as a result of his death. Certain facts are extremely probative on that issue. In order to appreciate the significance, a brief chronology of the deceased’s institutional history must be given.

Scott Copland was two years old when testing at the University of Illinois Research Clinic revealed that he had suffered some type of damage to his brain. Eventually, at the age of five, Scott was placed in the Little Angels Nursing Home in Elgin, Illinois. Before that, he lived with his family in Lombard. At the age of six, Scott had to be transferred from Little Angels because of an age limitation. At that point he was taken by his parents to Hynes School in Delavan, Wisconsin, where he remained for a little less than two years. Because of an absence of medical facilities at the Hynes School, it was recommended that he be transferred to another institution with appropriate medical care. He next stayed at the Powell School in Red Oak, Iowa, in 1967 after being home for the complete summer in 1967. The Powell School was approximately an eight-hour drive from the home of the Coplands in Lombard, Illinois. Eventually Scott left the Powell School and took up residence in the Madden Zone Center in Maywood, Illinois. The number of seizures that he was experiencing had increased and the Powell School could no longer care for him competently. Scott remained at Madden for three months in 1971 until an opening at the Dixon State School allowed him to be transferred there. In 1981 the Dixon State School was turned into a prison by the State of Illinois, and Scott was sent to the Howe Developmental Center in Tinley Park, Illinois, where he resided until the time of his death in 1985.

This history is both relevant and significant in evaluating the loss suffered by Scott’s immediate family members as a result of his death. It might be inferred from these facts alone that the separation of Scott from mother, father and sister would have mitigated that loss. The evidence presented proves otherwise.

From the time that Scott was first committed to an institution at the tender age of five until the time of his death, the Copland family took every opportunity to visit with and show their support for Scott. Each of the Coplands testified to the regular trips the family would make to whatever institution Scott was in, often times driving at night and for great lengths of time in order to be with their boy. No matter where Scott was living, the evidence established that the Copland family would visit him, regardless of difficulties involved. Kathleen Copland’s vivid memories of the activities on these trips is evidence which is very difficult to reject. In observing the testimony of the Coplands, it is fair to say that they impress a neutral observer as being very, very sincere and honest people. The devotion that they showed to this handicapped boy is very admirable. It also, unfortunately, appears to be unusual when compared with the living conditions under which most handicapped people survive or exist. The Coplands went so far as to purchase a piece of property near the Dixon State facility so that they might have a place for their mobile home, a place where they could take Scott away from the institution. The State’s own records establish that the family was very concerned about his well-being and that this manifested itself by frequent visits and calls. Scott’s family contacts and relationships were considered by his therapists to be one of his major assets. Scott’s family loved him very much and they have suffered a significant loss by his death. It is no less of a loss simply because he was handicapped and, under the facts of this case, it would be unfair for this Court to evaluate his life or their loss any differently than evaluating the death of a healthy child.

Lastly, the manner of death which Scott suffered has to be evaluated in determining the value of his survival action. The Claimant called Dr. Shaku Teas who is a board certified pathologist, educated at the University of Illinois hospital in Chicago and who works as a pathologist at the Cook County medical examiner’s office. She has performed over 3,000 autopsies in her career: She performed the post-mortem examination on Scott Copland on April 29, 1985. She initially did not make a determination as to the cause of death after the autopsy, but testified that she wanted to do some additional investigation. She eventually opined that the cause of death was postural asphyxia combined with seizure disorder and mental retardation.

The doctor explained that the asphyxia, meaning lack of oxygen, was related to the positioning of Scott’s body during the time he was tied to the toilet. Her internal examination of Scott’s body revealed hemorrhage around the spinal cord in the cervical area and fresh hemorrhage in the muscle area of the neck. The doctor examined the wheelchair and the toilet and reenacted the sequence of events which led to Scott’s death with the cooperation of David Protrowski of the facility and the Tinley Park police officers who investigated this incident.

Dr. Teas indicated that the injuries which she found and the mechanism which caused these injuries are the same as would be found in someone who has hung himself or who has been strangled. However, in this situation it is the doctor’s opinion that the actual period it took to kill Scott Copland ranged somewhere between 5 to 45 minutes. When asked to be more specific, she indicated it was probably somewhere in between those two figures. In effect, the doctor testified that because Scott’s functional mentality was that of a young child, he was unable to react properly to remove his head from the back of the wheelchair which had been backed up against him. The pressure on his neck and throat from the top of the wheelchair decreased the blood returning to the heart from the brain and also reduced the blood to the brain. Unfortunately, Scott’s sensory system was not impaired in any way and, therefore, the pain that he suffered was not reduced by his handicap. In short, Scott Copland suffered an extremely painful death.

As a result of Scott’s death, the Copland family paid a $494 hospital bill for the emergency room services and a total funeral bill of $4,307.

Based on the facts of this case, the nature of the relationship between the deceased and his family members, and the type of death which Scott Copland suffered, the Court concludes that Claimants should recover the maximum allowable amount of money from the State of Illinois. Accordingly, the estate of Scott Copland is awarded one hundred thousand dollars for his predeath pain and suffering and hospital and funeral expenses. Archibald Copland, the father of the deceased, Mary Ann Copland, the mother of the deceased, and Kathleen Copland Buzen, the sister of the deceased, are each awarded one hundred thousand dollars for the loss of Scott Copland.


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (No. 86-CC-1899
    J&W Allen Construction Co. and Odum Concrete Products, Inc., Claimants, v. John Kramer, Secretary of the Department of Transportation, Respondent.

      Opinion filed April 19, 1989.

    Robert P. Schulhof, for Claimant.
    Neil F. Hartigan, Attorney General (David D. Crane, Special Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This case has been brought by J&W Allen Construction Company, Inc., and Odum Concrete Products, Inc., jointly as Claimants (hereinafter referred to as Allen and Odum respectively) against Respondent for a “violation” of section 23 of the Mechanics’ Liens Act (Ill. Rev. Stat., ch. 82, par. 23) pertaining to liens against public funds and proceedings for accounting. The ad damnum of the complaint of Claimants seeks the sum of $6,518.50 plus costs of suit.

Claimants’ complaint alleges that on December 27, 1983, Claimant Odum commenced an action in the circuit court of Williamson County, Illinois, under section 23 of the Mechanics’ Liens Act. (Ill. Rev. Stat., ch. 82, par. 23.) The defendants in that case were Claimant Allen and Western Casualty and Surety Company who carried the bond for the general contractor, Three Star Construction Company, under its contract with the State of Illinois, Department of Transportation, No. 33121. The general contractor, Three Star Construction Company, had taken bankruptcy and was initially not joined as a defendant. Claimant Allen joined issue with Claimant Odum in the circuit court of Williamson County by answer and counterclaim praying for the enforcement of their lien against public funds.

Both Claimants Odum and Allen provided statements of claim for lien to Robert Graham, chief of the Bureau of Claims of the Illinois Department of Transportation. On December 6, Graham acknowledged in writing the receipt of Claimant Allen’s statement of claim for lien on November 28,1983, and in the same letter acknowledged the suit of Claimant Odum that had been filed in Williamson County and that prior to the filing of that suit, Claimant Odum had filed a claim for lien with the Department of Transportation and recited as follows:

“It is my understanding that essentially the lien of J & W Allen and the lien of Odum Concrete are the same. In other words, if J & W Allen would receive payment, the funds would be turned over to Odum.”

Approximately two weeks later, Graham acknowledged receipt of the answer and counterclaim of Claimant Allen filed in the Williamson County proceedings asserting a lien against public funds under section 23 of the Act. Copies of both letters of Graham were provided to Bernard Reinert, the attorney for Western Casualty and Surety Company.

Western Casualty and Surety Company participated in the Williamson County court action and filed motions, answers and affirmative defenses which raised various issues.

On June 10, 1985, an initial judgment order was entered by the Williamson County Circuit Court finding that Claimant Allen owed Claimant Odum the sum of $6,518.50 for materials supplied to Allen for work performed by Allen under its contract with the general contractor, Three Star Construction Company on Illinois State Contract 33121. In the findings portion of that order the following appears:

“4. That Odum Concrete Products Company, Inc., moves to dismiss its claim against Western Casualty and Surety Company and said Motion is hereby granted, and Odum Concrete Products action against Defendant, Western Casualty and Surety Company, is hereby dismissed with prejudice.”

The Williamson County Circuit Court thereupon granted judgment in favor of Claimant Odum against Claimant Allen “on accounting had” in the amount of $6,518.50.

Thereafter, Claimants filed an action in Federal court to obtain and lift the bankruptcy automatic stay against Three Star Construction Company which had been in bankruptcy under Chapter 7 of the United States Bankruptcy Code. The automatic stay was lifted by the Federal bankruptcy court and the Williamson County action was amended to make Three Star Construction Company a party defendant.

After Claimants amended their pleadings in Williamson County Circuit Court to add Three Star Construction Company as a party defendant, after having obtained a lifting of the automatic stay in bankruptcy, notice was given to Western Casualty and Surety Company who, on July 3,1985, filed “objections” to the motions of Claimants for leave to file their amended complaints in Williamson County.

Thereafter, a second judgment order was entered by the Williamson County Circuit Court on August 20, 1985 (see Plaintiffs’ Exhibit 9), approximately 70 days after its initial judgment order on June 10,1985, in which the Williamson County Circuit Court found as follows:

“1. This Court takes notice that a Judgment Order against J & W Allen Construction Company and in favor of Odum Concrete Products, Inc., was entered in this cause on June 10,1985, the Court hereby adopts the findings in said Judgment Order by reference.
2. That in compliance with Illinois Revised Statutes, Ch. 82, Sec. 23, Odum Concrete Products Inc., on October 23, 1983, served upon Three Star Construction Company and John Kramer, Secretary of Illinois Department of Transportation a sworn statement of claim for lien setting forth with particularity the basis for the amount owed Odum Concrete Products, Inc., $6,518.50. That said statement of claim for a lien was acknowledged as received on November 18,1983, by the State of Illinois.
3. That in compliance with Illinois Revised Statutes, Ch. 82, Sec. 23, J & W Allen Construction Company, on November 28, 1983, served upon Three Star Construction Company and John Kramer, Secretary of Illinois Department of Transportation a sworn statement of claim for lien setting forth with particularity the basis for the amount owed Odum Concrete Products, Inc., $5,898.00. The said statement of claim for a lien was acknowledged as received on December 6,1983, by the State of Illinois.
4. That at the time the statements of claims for liens were served by Odum Concrete Products, Inc., and J & W Allen Construction Company, respectively, the State of Illinois acknowledged having in its possession funds in excess of the claimed amounts due and payable to Three Star Construction Company against which no vouchers or other evidence of indebtedness had been issued.
5. That within ninety (90) days of the service of said notice for claim of lien, Odum Concrete Products, Inc., instituted an action in the Circuit Court for the First Judicial Circuit of Williamson County, Illinois, Case No. 83-LM-97, in compliance with Chapter 82, Section 23.
6. That Odum Concrete Products, Inc., and J & W Allen Construction Company provided goods, materials and services which were incorporated into a public improvement pursuant to state contract 33121 with the Illinois Department of Transportation in Franklin County, Illinois.
7. That $5,898.00 is due and owing and currently outstanding by Three Star Construction Company and the State of Illinois to J & W Allen Construction Company.
8. That $6,158.50 [sic] is currently due and owing by J & W Allen Construction Company, Three Star Construction Company and the State of Illinois, for materials provided by Odum Concrete Products, Inc., which were incorporated into public improvement pursuant to contract number 33121 with the Illinois Department of Transportation in Franklin County, Illinois.
9. That there has been filed with the Court in this cause an Order executed by the Trustee in Bankruptcy for Three Star Construction Company lifting the stay of bankruptcy for purposes of this accounting.
10. That all claims against defendant, Western Casualty and Surety Company, a corporation, were dismissed with prejudice by Order of this Court on June 21,1985.
11. That pursuant to accounting had and obtained, J & W Allen Construction Company is adjudged to have a lien in the amount of $5,898.00 on all monies, account bonds and warrants due or about to have become due to Three Star Construction Company which were in the possession of the State of Illinois on December 6,1983, the date of State’s acknowledgment of claim for lien filed by J & W Allen Construction Company.
12. Pursuant to this accounting had and obtained, Odum Concrete Products, Inc., is adjudged to have a lien on all monies, bonds and warrants due or about to become due to Three Star Construction Company which were in the possession of the State of Illinois on November 18, 1983, the date the State of Illinois acknowledged claim for lien served by Odum Concrete Products, Inc.
13. That pursuant to the Judgment Order filed in this cause on June 10,1985, it has been determined that J & W Allen Construction Company owes the sum of $6,518.50 to Odum Concrete Products, Inc., therefore, the lien of J & W Allen Construction Company in the amount of $5,898.00 is subsumed by the lien of Odum Concrete Products, Inc., in the amount of $6,158.50 (sic).’’

The Williamson County court ordered as follows:

“WHEREFORE, it is the Judgment, Order and Decree of this Court that pursuant to accounting had that Odum Concrete Products, Inc., is adjudged to have a lien of $6,518.50 on funds held, or previously held, by the State of Illinois, payable to Three Star Construction Company.”

It is not disputed by Respondent that at the time Claimants filed their statements of claim for lien and complaints in the Williamson County Circuit Court that the State had on hand sufficient remaining unvouchered funds to pay this claim. Robert Graham of the Illinois Department of Transportation testified as follows:

1. There was a contract number 33121 for public improvements between the State of Illinois and Three Star Construction Company.

2. He received a claim for lien on public funds from Odum Concrete on 10-31-83.

3. On the same date, Graham received Claimant Odum’s suit for accounting filed in Williamson County.

4. Graham received a statement of claim for lien from Claimant Allen on November 28,1983.

5. Graham received a cross-complaint by Claimant Allen in the accounting suit on December 2,1983.

6. Graham acknowledged in writing the Department’s receipt of the respective liens and acknowledged in writing that the complaints had been filed in accordance with the statute.

7. There were unvouchered funds remaining sufficient to pay the claim of Claimants.

8. Graham knew that the general contractor, Three Star Construction Company, was out of business, not transacting any business and had taken bankruptcy although Graham did not know the status of the bankruptcy.

9. Graham advised attorneys for both Claimants that he was withholding funds for the claim of Claimants.

10. On April 3, 1985, the Department of Transportation paid the unvouchered funds in the sum of $11,993.22 to Western Casualty Insurance and Surety Company in care of their attorney, Bernard A. Reinert in St. Louis, Missouri (also see Plaintiffs’ Exhibit 8).

11. A letter from Robert Graham to Bernard A. Reinert dated August 9, 1983, introduced into evidence as Plaintiffs’ Exhibit 6 contained the following assertions by Graham, to wit:

“Dear Mr. Reinert:
Your letter of July 29, 1983, is a disappointment to me. Your statement that your client (Western Casualty and Surety Company) is no longer willing to pay the Allen Firm (Claimant J & W Allen) any monies be it out of project funds or its own funds is a direct contradiction of your agreement with me and a prior agreement made by Stanley Wilson (owner of Three Star Construction Company).”

12. At the time Graham attended a hearing on the proceedings in the Williamson County Circuit Court in April, he had checked the status of the “account” with the Department of Transportation and found that the funds had been vouchered out to Bernard Reinert and Western Casualty and Surety Company “a month earlier.” As far as Graham knew, there had been no decision made to voucher the money and “it was just one of those things that slipped through.” On December 2, 1985, the Department of Transportation wrote Claimant Odum and stated that the Department was denying Odum’s right to recover the funds with no specific reason being given in the letter. Graham said this was on the advice of counsel David Crane who responded to Claimant on behalf of the Department. On December 2, 1985, Crane (Bernard Reinert’s partner) was acting as special assistant Attorney General for the Department of Transportation.

THE POSITION OF RESPONDENT

The Respondent takes the position that Claimants do not have a lien against public funds for the following reasons:

1. Respondent paid out lienable funds before receiving Claimants’ notice.

2. The retainage paid out by Respondent was nonlienable.

3. Claimants failed to join the general contractor, Three Star Construction Company, at the outset of the proceedings in Williamson County and failed to exercise diligence in petitioning the Federal bankruptcy court to lift the automatic stay against Three Star Construction, and,

4. The suit commenced by Claimants in Williamson County was an improper venue because the road project was located in Franklin County.

Respondent cites Gunther v. O’Brien Bros. Construction Co. (1938), 369 Ill. 362, 16 N.E.2d 890, as support for the proposition that when Claimants filed their claims for lien and suits for an accounting, there were no funds in the hands of Respondent to which the liens could attach. The case cited by Respondent arose out of a situation where subcontractors had provided materials, machinery, etc. to the O’Brien Bros. Construction Company while that company was constructing sewers under a contract with the Galesburg Sanitary District. The contention of the sanitary district on appeal from adverse decisions in the trial and appellate courts was that after the general contractor defaulted, the sanitary district had the right to use the remaining money or portions of it retained out of monthly estimates to complete work on the defaulted project before honoring the liens of subcontractors under section 23 of the Mechanics’ Liens Act (Ill. Rev. Stat., ch. 82, par. 23.) The sanitary district contended that when the general contractor defaulted, the district had the right to use all or any part of the money remaining to complete the work. The lien Claimants contended that the funds so retained should be applied toward discharging their liens before the money could be used to complete the project. The supreme court held in effect that if they adopted the position taken by the Claimants, the sanitary district would be compelled to spend more than the original contract price without any fault on the part of the district. The evidence at trial had shown that the sanitary district had failed to obtain a surety bond, conditioned for payment of claims for labor and materials furnished to the contractor on the project. The supreme court pointed out that a municipality is not liable because of such an omission. The court pointed out that the sureties on the bond that was given were not parties to the suit and the question of liability on the bond was not before the court (369 Ill. 362, 16 N.E.2d 890, 894). The supreme court went on to point out that mechanics’ liens are statutory, and all that may be considered in determining whether they exist or not, is what the statute creating them contains. The court concluded:

“There is no provision in the Mechanics Lien Act to the effect that anyone furnishing labor, materials, etc., shall have a lien in the event a municipality fails to obtain a bond conditioned as required by the local improvement Act.”

In Gunther v. O’Brien, supra, the evidence showed that after the contractor’s default, the district had expended $14,424.44 for attorneys and engineering fees, watchman’s services, keeping sewers and ditches open, building temporary bridges and in protecting the public against hazards occasioned by the unfinished sewer construction, etc. The work was completed under a new contract which was let at a cost of an additional $144,900. The district, after payment of the three amounts listed, retained $38,612.21 in the treasury of the sanitary district out of the original contract price of $692,230.62. The district admitted that Claimants had a lien on $38,612.21 but objected to the allowance of any further sums. The supreme court held in favor of the district because to allow subcontractors’ liens in excess of the amount remaining ($38,612.21), the sanitary district would have been compelled to spend more than the original contract price out of public funds without any fault on its part.

In Brady Brick & Supply v. Lotito (1976), 43 Ill. App. 3d 69, 356 N.E.2d 1126, the Second District Appellate Court cited Gunther v. O’Brien, supra, for the proposition that the Mechanics’ Liens Act was enacted to protect materialmen who, in good faith, furnish materials for the construction of a building and to allow the materialman to collect his bill from the owner via a mechanics’ lien foreclosure suit, when the contractor, subcontractor, and/or owner fail to pay the material-man. Also, as a general rule, the subcontractor’s rights are based upon and limited by the original contractor’s contract with respect to price. A subcontractor whose claims are unpaid may not recover from the original owner a sum which will make the total cost to the owner greater than that specified in the original contract between the owner and the original contractor. (Gunther v. O’Brien Bros. Construction Co., 369 Ill. 362, 368.) In the Brady case, the appellate court affirmed a judgment in favor of Brady on its mechanic’s lien claim against the contention by the defendants that if the judgment in favor of Brady were allowed to stand, the defendants would have paid $26,750 to construct a building which should have only cost $21,000. The court pointed out that ordinarily the owner cannot be compelled to pay more than the original contract price, but there is an exception where the owner makes payments to the original contractor which are in violation of the rights of a subcontractor. Then, as to such person, such payments are wrongfully made and the owner is not entitled, in his controversy with the subcontractor, to any credit for payments wrongfully made. Under such circumstances, the owner may be compelled to make payment to a subcontractor even though he has made payment in full to the original contractor.

In Tison & Hall Concrete Products v. Asher (1967), 86 Ill. App. 2d 34, 229 N.E.2d 137, in a suit to enforce a lien on public funds, the Fifth District Appellate Court cited the holding of Gunther v. O’Brien Bros., supra, for the proposition that the claims of persons furnishing materials to a subcontractor are limited in the assertion of liens to the amount due their immediate contractors at the time notice of their liens is given. In Tison & Hall Concrete Products, a suit was initiated by a subcontractor’s supplier against the general contractor and the subcontractor to enforce the lien on public funds due the general contractor. The general contractor had a contract with the Department of Public Works to construct a prison in Johnson County. A subcontractor, Asher, entered into a subcontract for masonry work. The subcontractor entered into an agreement with the plaintiff under which the plaintiff furnished part of the material needed for the masonry work on the prison. Of total billings of plaintiff in the amount of $29,712.77, only $11,167.15 were paid leaving a balance due plaintiff of $18,545.62. In the contract between the masonry subcontractor and the general contractor, it had been provided that the general contractor should not be required to pay the subcontractor any sums greater than $242,000. The general contractor argued that any claim of the plaintiff to a lien for the full amount should have been limited to the amount of the indebtedness of the general contractor to the subcontractor. Incidental to this argument the general contractor argued that the trial court had erred in refusing to hear evidence concerning the status of the account between the subcontractor and the contractor with respect to the $242,000 limitation, and what monies had been paid by the general contractor to the subcontractor. Payments made to the plaintiff were made directly by the general contractor and under the contract between the general contractor and the subcontractor were to be deducted from the subcontractor’s amount. Further, the contract provided that the general contractor’s responsibility to the subcontractor should not exceed $242,000 and was “firm.” The court held as follows:

“This arrangement implies that Asher (general contractor) would only be required to pay the bills of a supplier if the total amount incurred on behalf of the sub-contractor was less than the contract price.”

The appellate court concluded that it was an error for the trial court to refuse to allow testimony concerning the Asher-Barfield account. The court held that such evidence was clearly relevant in determining the extent of any lien on public funds claimed by a supplier of the subcontractor, Barfield. The Court cited Koenig v. McCarthy Construction Co., 344 Ill. App. 93, 101, for the proposition that “the determination of the existence and extent of a lien depends not only upon the precise wording of the particular lien act ” ” ”, but also upon the specific terms of a Contract before the Court.” The case was remanded for evidence to be heard on the status of the account between the general contractor and the subcontractor. Also see Housing Authority of County of Franklin v. Holtzman (1970), 120 Ill. App. 2d 226, 256 N.E.2d 873, 877.

In the case at bar, the Williamson County Circuit Court found as follows:

“7. That $5,898.00 is due and owing and currently outstanding by Three Star Construction Company and the State of Illinois to J & W Allen Construction Company.
8. That $6,158.50 [sic] is currently due and owing by J & W Allen Construction Company, Three Star Construction Company and the State of Illinois, for materials provided by Odum Concrete Products, Inc., which were incorporated into public improvement pursuant to contract number 33121 with the Illinois Department of Transportation in Franklin County, Illinois.” (See Plaintiffs’ Exhibit 9).

Respondent offered no evidence with respect to the status of the account between Respondent and the general contractor, Three Star Construction Company; nor was any evidence offered with respect to the status of the account between Three Star Construction Company and J & W Allen. Robert Graham, a representative of the State of Illinois, Department of Transportation, testified that at the time Respondent received the lien of Claimant Odum on public funds there was $11,000 remaining on the contract that was not vouchered and that the liens of Claimants J & W Allen and Odum were less than the unvouchered funds on hand. Further, Graham testified that he believed, as Respondent’s agent, that the unvouchered funds belonged to the general contractor, Three Star Construction, or its successor in interest, Western Casualty.

Accordingly, Respondent’s reliance on Gunther v. O’Brien, supra, and its progeny is misplaced. Respondent’s argument that “there were no excess funds after the project was completed” and that there were no funds to which a lien could attach when Claimants gave their section 23 lien notices, must fail. The circuit court of Williamson County found that a valid debt existed between the general contractor, Three Star Construction Company and its subcontractor, J & W Allen; the Williamson County Circuit Court further found that there was a valid debt from J & W Allen Construction to Odum Concrete. Respondent offered no evidence which tended to impugn or dispute the findings of the Williamson County Circuit Court with respect to these matters. Although the burden of proof remains herein upon the Claimants, the evidence adduced through the testimony of Respondent’s agent as well as the findings of the Williamson County Circuit Court would at least shift the burden of proceeding to Respondent to show that the claim of Odum through the subcontractor Allen, was limited to the funds due Allen from Three Star in order to bring into play the ruling of Gunther v. O’Brien. This Respondent failed to do; accordingly, Respondent’s argument that the funds in the hands of Respondent at the time of the filing of Claimants’ liens were not lienable must be rejected.

Second, Respondent argues that Claimants’ claims must fail for the reason that the general contractor, Three Star Construction Company, who had taken bankruptcy under Chapter 7, should have been joined at the outset of the Williamson County court litigation and was a necessary party and that Claimants failed to exercise diligence in petitioning the Federal bankruptcy court to lift the automatic stay and to commence proceedings against the general contractor, Three Star Construction. Thus, Respondent argues that, having failed to join the necessary party (the general contractor, Three Star Construction Company) within 90 days of the filing of their liens, it obviates any claim that the Claimants may have to a lien. Respondent cites no case which is directly in point. Claimant cites Garbe Iron Works Inc. v. Priester (1982), 110 Ill. App. 3d 948, 443 N.E.2d 204, for the proposition that the time for filing a suit for accounting against the general contractor, Three Star Construction, was tolled. In the Garbe Iron Works case, the subcontractor furnished labor and materials under an agreement with the contractor, completing performance on February 2, 1979. On May 2, 1979, plaintiff subcontractor filed a claim for mechanic’s lien. Approximately 15 months later, the general contractor filed a petition in bankruptcy under Chapter 11 which automatically stayed proceedings in State courts under the provisions of 11 U.S.C. section 362(a). Approximately 4M months later, on December 23, 1980, the bankruptcy court entered an order modifying the automatic stay to permit plaintiff, the subcontractor, to file and pursue its suit to attempt foreclosure of a mechanic’s lien. Approximately three months later, on March 16, 1981, plaintiff filed a suit to foreclose mechanic’s lien. Defendants asserted that since the two-year period for filing suit after completion of performance expired February 2, 1981, plaintiff’s suit should be barred as having been filed on March 16, 1981. The First District Appellate Court held that the plaintiff’s complaint should not be dismissed for the reason that during the two-year limitation period, the automatic stay had been in effect from August 11, 1980, through December 23, 1980 (133 days) and that during such period the two-year limitation had been tolled. The court pointed out that under section 362(a)(1) of the Bankruptcy Act it “is unequivocably clear that the Petitioner in Bankruptcy is to be protected from all forms of judicial proceedings including the mere ‘issuance or employment of process * * V” The court concluded:

“We believe Plaintiff had no alternative but to delay filing of suit until the automatic stay was terminated. In our opinion the comparison of a pure statute of limitations to restriction of the time to bring an action by a condition of the right sought to be enforced leads to creation of a distinction without a difference; particularly in the context of the case at bar where we are dealing with a stay of enforcement resulting from the imposition of a binding federal statute.”

Accordingly, the appellate court reversed the action of the trial court in dismissing the plaintiff’s case to attempt foreclosure of its mechanic’s lien.

It is not contested in the case at bar, that at the time the liens of Claimants were filed with Respondent, that Three Star Construction Company was in bankruptcy. Further, Respondent does not argue that Claimants sought and obtained relief from the automatic stay, but only that Claimants were “dilatory” in not joining Three Star at the commencement of the action. Professor Cowan, in his Bankruptcy Law and Practice (1986 ed.), vol. 2, sec. 11.7, discusses the automatic stay under section 362. In this 18-page treatment, it is pointed out that relief from an automatic stay may involve many complex and difficult issues particularly where competing liens and the interest of the trustee are at odds. It does not seem that the joinder of Three Star Construction Company shortly after a lifting of the automatic stay and within nine months of the commencement of the suit was such “dilatory” conduct as to deprive Claimants of their right to enforce their lien.

Finally, Respondent argues that Claimants failed to file their suit in an appropriate forum since the public improvement into which the goods, materials and services of Claimants were included was located in Franklin County, Illinois, and the Claimants’ suit was commenced in Williamson County, Illinois. Thus, Respondent argues, the Williamson County court lacked “subject matter jurisdiction” to establish a lien against public funds. Respondent cites no case directly in point. However, Respondent cites Village of Crainville v. Argonaut Insurance Co. (E.D. Ill. 1976), 469 F. Supp. 11, which involved a case filed under the Illinois statutes which require that public construction contracts be bonded (Ill. Rev. Stat., ch. 29, pars. 15,16).

In that case, the subcontractor filed suit in St. Clair County for recovery under the Illinois Bond on Public Works Act, instead of Williamson County where the project was located. The court held that such an action can only be brought in the circuit court where the contract was to be performed. In its opinion, the court pointed out that the legislative intent in passing the Act was to restrict litigation to the circuit court in the county where the work was performed. From this, Respondent argues, that the “policy considerations” for administering competing claims to a single fund in cases on public works bonds applies with equal force to cases under the provisions of the Illinois Mechanics’ Liens Act for establishing a lien on public funds. Respondent fails to point out that the statutory provisions pertaining to recovery on construction bond for public works provides specifically as follows:

“Such action shall be brought only in the circuit court of this State in the judicial circuit in which the contract is to be performed.” (Ill. Rev. Stat. 1987, ch. 29, par. 16.)

Section 23 of the Mechanics’ Liens Act contains no such provision. Section 23(c) applies to this case. This section provides only that the lien claimant’s complaint “for an accounting” be filed within 90 days after giving notice of lien. No mention is made of the required forum. Respondent asserts that section 9 of the Mechanics’ Liens Act under the heading “Suit to Enforce Lien — Joint Suit — Counterclaim—Dismissal—Continuance—Limitation” applies with respect to the “complaint for an accounting” which is applicable procedure under section 23. Section 9 provides a means to “the contractor having a lien by virtue of this Act” with the mechanism for enforcement. It provides in part, as follows:

“If payment shall not be made to the contractor having a lien by virtue of this Act of any amount when the same becomes due, then such contractor may bring suit to enforce his lien in the circuit court in the county where the improvement is located 0 0 (Ill. Rev. Stat., ch. 82, par. 9.)

Thus, Respondent argues as follows: “The Act does not merely allow venue in the county where the project is located: it confers exclusive subject matter jurisdiction on the circuit court of the County where the project is located.” (see Respondent’s brief, p. 12). Respondent asserts that there is no reported decision where an action has been commenced under section 23(c) in a county different than that in which the improvement exists; similarly, it should be observed that there is no reported decision holding that the claim of a lien claimant to public funds under section 23(c) should be defeated because his complaint for an accounting is initiated in a county different than that where the project is located. It appears that a major issue in this case exists with respect to whether or not the provisions of section 9, setting forth the mechanism for enforcement of an existing mechanic’s lien on private property, is applicable to the complaint for accounting which is required by the section governing hens against public funds.

Illinois courts have held that only section 23 “governs liens on public improvements” and the “other sections of that Act have no application to public hen funds.” Anderson “Safeway” GR Corp. v. Champaign Asphalt Co. (1971), 131 Ill. App. 2d 924, 929, 266 N.E.2d 414, 418; see also Alexander Lumber Co. v. Coberg (1934), 356 Ill. 49, 190 N.E. 99.

In the Anderson “Safeway” case, supra, a material supplier, having provided material to a subcontractor of the general contractor on a highway project, filed a complaint for accounting under section 23 of the Mechanics’ Liens Act. The general contractor filed a motion for summary judgment on the ground that it had paid its subcontractor in full, to whom the lien claimant had supplied materials. The motion for summary judgment contended that the lien of a material supplier to a subcontractor under section 23 against public money due or to become due a general contractor is limited to the amount owed by the general contractor to the subcontractor at the time the notice of lien was filed. The motion for summary judgment was granted by the trial court. The lien claimant’s complaint for an accounting did not allege that at the time the materials suppliers’ notice of lien was served on the State that there was any money owed by the general contractor to the subcontractor for whom the materials were supplied.

One of the arguments made by the lien claimant on appeal was that sections 4, 21, 22, and 27 of the Mechanics’ Liens Act required the general contractor to obtain evidence from his subcontractor that the subcontractor had paid its material suppliers prior to the payment from the general contractor to the subcontractor; or that in lieu thereof, the general contractor should have obtained a statement under oath regarding identity of the materials suppliers and the amounts due each. The lien claimant argued on appeal that a failure of the general contractor to follow these steps, under the quoted sections of the Mechanics’ Liens Act, constituted a wrongful payment by it to its subcontractor for which it would not have been entitled to credit. In responding to this argument, the Fourth District Appellate Court replied as follows:

“These contentions are to be wholly rejected, as the language of Section 23 of the Mechanics Lien Act (Ill.Rev.St. 1969, Ch.82, Sec.23) is clear that only that Section of the Act governs liens on public improvements. The other sections of that Act have no application to public fund liens. Alexander Lumber Co. vs. Coberg, 356 Ill. 49, 190 N.E. 99 (1934).”

The only occasion that the Illinois Supreme Court has had to consider this matter is represented by the case of Alexander Lumber Co. v. Coberg, supra. In that case the supreme court was called upon to construe section 23 of the Mechanics’ Liens Act in connection with the claim of a materialman furnishing material to a subcontractor. The case was decided before section 23 was amended to permit such claims. The court observed as follows:

“Section 23 only has to do with the establishment of liens upon specific funds of municipalities. The other sections of the Mechanics Lien Act do not deal with municipalities and liens upon their funds, consequently there is an absence of relationship between Section 23 and the rest of the Act (Alexander Lumber Co. vs. Farmer City, 272, Ill. 264).
Invoking the cited rules of construction, this Court has held that Section 23 affects the contractor who owes money to the person furnishing materials, and that the lien given by Section 23 is solely against the funds due from the municipality to the contractor (Standard Oil Co. vs. Vanderboom, 326 Ill. 418; McMillan vs. Casey Company, 311 id. 584; Alexander Lumber Co. vs. Farmer City, supra). Other sections of the Act having to do with remedies for the enforcement of liens do not apply to a lien created by Section 23. National Bank vs. Petterson, 200 Ill. 215.”

The court went on to hold that the Act in effect at the time that decision was rendered did not extend to materialmen who furnished materials to a subcontractor and recited that the language used by the legislature was such that it applied only to contractors and persons furnishing material, apparatus, fixtures, machinery or labor to any contractor having a contract for public improvement.

Respondent would have us read into section 23 the requirement that the complaint for accounting be filed only in the county where the public project is located. As stated by the Illinois Supreme Court in Alexander Lumber Co. v. Coberg, supra, “the language used by the legislature is plain, specific and not all-inclusive. Under the authorities cited, and the well-known rule that the expression of one thing is the exclusion of all others, this Court has no right to read into this Section words not found therein.” (356 Ill. 49, 55).

Scholarly commentators on the Illinois Public Mechanics’ Lien statute have commented about the care required in distinguishing between a lien on public funds and the other provisions of the Mechanics’ Liens Act. In an article by G.A. Finch entitled “A Primer on Illinois Public Mechanics Liens,” Illinois Bar Journal, vol. 75, no. 9, 500, the author stated:

“The claimant must remember not to confuse the provisions for mechanics lien claims on private improvements with those for public improvements. The failure to note and remember these differences will increase the likelihood of failure to recover under the statute.”

With respect to the question of what provisions of the statute are applicable to the section 23 public funds lien, the author states as follows:

“The liberal construction provision of Section 39 (of the Act) applies to provisions relating to private mechanics liens but probably does not extend to Section 23. Illinois Courts have held that only Section 23 ‘governs liens on public improvements (and the) other sections of that Act have no application to public lien funds.’
Nevertheless, two early Illinois Decisions held that the Public Lien Act is a remedial statute meant to provide a remedy for sub-contractors and materialmen who, in good faith, perform labor or furnish materials and that the statute should be liberally construed. The 1980 Decision in Davenroy Plumbing and Heating vs. Earnest Inc. 87 Ill. App.3rd 1047, 409 N.E.2d 372 (1980), suggests that substantial compliance might be sufficient, although the Court held that the Plaintiff had not substantially complied.
Some Courts appear to have followed a strict construction approach in requiring adherence to the procedural requirements of Section 23 in order to perfect a lien. In Wagoner Equipment Rented and Excavating Co. vs. Johnson, 33 Ill.App.3rd. 358, 363 (rehearing denied), 342 N.E.2d 266, 270 (1975), the Court held that ‘in view of the failure of Plaintiff to follow procedure in Section 23 no duty devolves upon the officials charged. . .’
Thus the law on whether the procedural requirement must only be substantially complied with or strictly followed is unsettled. ‘The lien claimant would do well to exercise caution and strictly comply with the provisions of the Statute.’ ”

A strict and literal compliance with the stated provisions of section 23 dealing with public funds liens does not permit the inference that any requirement exists that the complaint for accounting. must be filed in the county wherein the public project is located. To read such a requirement into section 23 when the plain, strict, literal interpretation of the provisions of section 23 does not so provide, would do substantial violence to the rules of construction applicable to the Mechanics’ Liens Act.

Therefore, the position of Respondent that Claimants’ claim must fail due to the fact that they filed their complaint for an accounting in Williamson County instead of Franklin County, where the public project was located, must be rejected.

CONCLUSION

The funds remaining unvouchered in the hands of the Illinois Department of Transportation at the time Claimants’ claims for lien and complaints for accounting were filed were lienable funds; Respondent made no attempt to show that the subcontractor to whom Claimants provided materials and supplies had been fully paid. Indeed, the evidence supports the conclusion that J & W Allen had not been paid; and further, that the unvouchered sums in the hands of the Department of Transportation were sufficient to cover Claimants’ liens.

Claimants were not bound to join the general contractor, Three Star Construction, when their complaints for accounting were filed in the Williamson County Circuit Court for the reason that Federal law mandated the stay of all proceedings against Three Star Construction, which included any proceedings upon which process would be required to issue. Upon the lifting of the automatic stay, Claimants joined Three Star Construction in the complaint for an accounting with due diligence.

There is no requirement that Claimants file their complaint for an accounting under section 23 in the county where the public project was located.

Accordingly, the Williamson County Circuit Court had jurisdiction of the parties and the subject matter at the time of the entry of the Williamson County order of August 20,1985.

Accordingly, Respondent should not have paid over the funds retained to Three Star Construction or its successor in interest when it did so on April 3, 1985. It was the duty of Respondent under section 23(c) of the Mechanics’ Liens Act (Ill. Rev. Stat., ch. 82, par. 23(c)) “to withhold payment of a sum sufficient to pay the amount of such claim” until the final adjudication of the suit of Claimants. The failure on the part of Respondent to perform the obligations of Respondent under the statute damaged the plaintiffs in the sum of $6,518.50.

It is therefore ordered, adjudged and decreed that the Claimants be awarded the sum of $6,518.50 in full settlement of this claim.


author: Burke, J.

text:
    (No. 86-CC-2271
    Samuel Stewart, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 12, 1989.

    Samuel Stewart, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

This cause coming to be heard upon the report of the Commissioner, after hearing before said Commissioner and this Court being fully advised in the premises,

Finds that on January 10, 1986, Claimant was an inmate at Pontiac Correctional Center. Claimant was assistant cook. He was burned on his arms by hot grease while he was attempting to loosen trays of meat which had become stuck in the oven.

On the above date, while cooking for the noon meal, Claimant placed some trays of chicken into the oven. The procedure was to place the meat to be cooked on trays, and the trays were then placed into the oven on shelves that rotated while the meat was being cooked. While Claimant was washing more chicken in preparation for cooking, another inmate placed some trays of hamburger into the oven. One of the trays was not properly placed, so that, while the shelf rotated, the tray caught on the oven door and caused the other trays and pans to jam up and stop the rotation, which is designed to operate in a vertical direction similar to a ferris wheel. Claimant was ordered by the kitchen supervisor to open the oven door and fix the problem. When Claimant opened the door, several trays of chicken fell onto the floor. Some trays remained jammed in the shelves above the door. Claimant’s supervisor directed him to clean up the floor and remove the jammed trays. Claimant cleaned the floor first. He then reached into the oven to try to release the jammed trays. He was dressed in a white tee-shirt and white pants. He was furnished with hot pads and heavy mittens to protect his hands, but he had no apron or other protective wear. He shook the trays to loosen them, and the entire shelf came loose. The grease which had gathered into the bottom of the trays spilled out onto Claimant’s arms. Claimant was treated in the prison infirmary for his burns. He was not hospitalized. His wounds were treated with mild salve. He sustained two small round scars on his right arm and testified to discomfort that lasted two days.

The State owes a duty to the inmates of its penal institutions to provide them with safe conditions in which to perform the work assigned to them. (Hughes v. State (1984), 37 Ill. Ct. Cl. 251.) The supervisory personnel of the kitchen should have known that the oven presented a dangerous condition to Claimant, and because of the supervisor’s order to remove the jammed trays in spite of the potential danger, Claimant was free from contributory negligence. Reddock v. State (1978), 32 Ill. Ct. Cl. 611.

It is therefore ordered that an award of $250.00 is hereby entered in favor of the Claimant, said award being in full and complete satisfaction of Claimant’s complaint.


text:
    (No. 86-CC-2799
    James Byrd, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 19, 1988.

    James Byrd, pro se, for Claimant.

      Neil F. Hartigan, Attorney General (Kimberly L. Dahlen, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant seeks $100.63 in lost property which he claims was stolen from his prison cell on August 17,1985, through the negligence of the State. The cause was tried before the Commissioner on November 5, 1987. The evidence consists of the transcript of testimony, the departmental report, and Claimant’s Exhibits 1, 2 and 3. Both parties have filed briefs.

On August 17, 1985, Claimant, James Byrd, was a prisoner at Pontiac Correctional Center serving a total sentence of 18 years for robbery. About 8:00 a.m., Claimant left his cell to go to breakfast and then out to the yard. At about 11:00 a.m., he returned to his cell and found it open. He never leaves his cell door open; he always leaves it locked, and he had no cellmate. He made an immediate complaint to an officer on the gallery and gave a statement to the sergeant as to the property missing from his cell.

Claimant was missing an am/fm tape player he purchased on October 10, 1984, for $59.26, a TV converter he purchased on January 16, 1985, for $26.37, $15 worth of coupons, and some jeans. Claimant exhibited proof of his ownership and cost of the tape player, converter and coupons through his Exhibits 2 and 3.

After the theft, Claimant spoke to Officer Jennings. Officer Jennings wrote “It is a possibility I opened Byrd’s cell 431 WCH because I don’t work that gallery but once every so often,” on Claimant’s Exhibit 1.

Claimant admitted his cell was not deadlocked when he left and he had not asked the officer to deadlock the cell. He did not see his cell door opened but believed that officers were opening cell doors to allow inmates to shower. This had happened in the past when inmates weren’t in the cells. He further believes his property was taken by other inmates and he was not accusing the officers of taking his property.

This is not a bailment or constructive bailment case. This is not a case where the Respondent took exclusive control and possession of Claimant’s property. (Doubling v. State (1976), 32 Ill. Ct. Cl. 1.) There was no duty on the State to exercise reasonable care in returning Claimant’s property since the State did not take actual physical possession of the property. (Owens v. State (1985), 38 Ill. Ct. Cl. 150.) If Claimant is to recover, it must be based on a theory of negligence by the State in failing to relock the cell if, in fact, the State failed to lock the cell and not that Claimant just failed to lock his own cell. Claimant’s reliance is in the theories espoused by the Court of Claims in Blount v. State (1982), 35 Ill. Ct. Cl. 790, and Walker v. State (1986), 38 Ill. Ct. Cl. 286. These two cases and particularly Walker indicate that an inmate can recover for lost property where very specific evidence is presented by the Claimant that he had no cellmate, that the stolen property was outside the reach of passersby, that the cell door was locked when Claimant left the cell, that there was a lot of traffic in the gallery, and that Respondent was in complete control of the cell doors. Under these circumstances, the Respondent can clearly anticipate that property can be stolen from an inmate’s cell in the absence of an inmate if an officer would unlock the cell and let it remain unlocked.

The Claimant in the present case did not testify with such particularity. The sparse evidence in this case is more like the evidence in Dungleman v. State (1979), 33 Ill. Ct. Cl. 154, where the claims were denied. Also Claimant indicated the property was stolen by other inmates and not by the guards. There is no general duty on the part of the State of Illinois to safeguard an inmate’s property from theft by other inmates when the property is in the inmate’s cell. Edwards v. State (1986), 38 Ill. Ct. Cl. 206; Bargas v. State (1976), 32 Ill. Ct. Cl. 99.

Based on the foregoing and because Claimant did not request the cell be deadlocked, and did not present with specificity the location of the property in the cell and the amount of traffic in the gallery, the claim must be denied.

It is ordered, adjudged and decreed that this claim is dismissed, with prejudice.


author: Hillebrand, Montana, C.J.

text:
    (No. 87-CC-0041
    Federated Insurance Company, as Subrogee to the Interests of Fanning Oil Company, Inc., Claimant, v. The State of Illinois, Respondent.

      Order on motions for discovery and production filed March 31, 1987.

      Order on motion to dismiss filed January 17, 1989.

    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, for Claimant.
    Neil F. Hartigan, Attorney General (Gregory Condon, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTIONS FOR DISCOVERY AND PRODUCTION

Hillebrand,

Commissioner

This matter comes before the Commissioner on the various motions and responses filed relating to discovery and production. The issue involves production of statements of employees of the State of Illinois during the investigation by the departmental agency of the incident involved in this claim. Claimant has requested production of the statements, and Respondent has objected on the grounds that the statements are privileged. Respondent’s claim of privilege is based upon the self-insurance provisions for the State of Illinois for property and casualty insurance exposures pursuant to the provisions of Ill. Rev. Stat., ch. 127, par. 63b4.

The general rule, whether made within a corporation or to an insurance carrier, regardless of whether there is separate insurance or self-insurance, is that certain statements made by an employee of a corporation will in fact be privileged. The test to determine privilege when statements are made by an employee relative to pending or potential litigation is whether the employee falls within the “control group.” (Day v. Illinois Power Co., 50 Ill. App. 2d 52.) The “control group” test requires that, for the privilege to apply, the employee making the communication must be in a position to control or even to take a substantial part in a decision about the claim which the corporation may take upon the advice of counsel for the corporatiqn or that the employee be an authorized member of a group which contains that authority so that in effect the employee personifies the corporation when the employee makes his disclosure or statement regarding the facts involving the claim. Otherwise, the privilege does not apply. (Gulminas v. Fred Teitelbaum Construction Co., 112 Ill. App. 2d 445.) The burden is upon the person claiming the privilege to prove that the privilege applies to the statement’s request.

It is therefore ordered:

A. The motion to strike the Respondent’s pleading is denied.

B. The objection of the Respondent contained in paragraph 1 of the Respondent’s answers for production is overruled.

C. The Respondent shall produce a statement of all employees of the Respondent unless Respondent believes said employees fall within the “control group” test. In the event Respondent believes any statements were made by an employee within the “control group,” Respondent shall submit an affidavit as to each such employee, which affidavit shall contain facts to support the position of Respondent. Thereafter, if necessary, the Commissioner will hold a pretrial hearing on discovery.

ORDER ON MOTION TO DISMISS

Montana, C.J.

This cause coming on to be heard on the request of Claimant to dismiss the above captioned matter and the Court being fully advised in the premises;

It is hereby ordered that the request of Claimant be, and is hereby granted, and the case is accordingly dismissed.


text:
    (No. 87-CC-0131
    Charles S. Terry, Sr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 19, 1988.
    Charles S. Terry, Sr., pro se, for Claimant.

      Neil F. Hartigan, Attorney General (James Majors, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a prisoner personal property case. Claimant seeks recovery for personal property of Claimant allegedly removed from his possession on May 7, 1986, by Respondent’s agents. The property consisted of a 14-karat gold chain, a silk tee-shirt and a torn sheet. The amount claimed is $195.81.

We cannot reach the merits of this claim. This matter was first called for hearing on July 17, 1987, at Menard Penitentiary. On that occasion, Claimant acknowledged that he sought no relief from the administrative review board. Claimant also stated that he had failed to address any grievance to the institutional inquiry board. The case was continued generally in order to allow Claimant to pursue his administrative remedies.

This matter was again called for hearing before the Court of Claims August 26, 1988. The record revealed that Claimant had received a decision of the institutional inquiry board. Claimant contends that he “wrote Springfield, the Administrative Review Board.” Claimant contended that he had not heard from the administrative review board. Claimant kept no copy of his correspondence with the administrative review board. Interrogation by the State revealed that Claimant had not had a hearing before the administrative review board in Springfield. Thus, it appears that Claimant did not exhaust his administrative remedies in accordance with section 790.60 of the Court of Claims Rules (74 Ill. Adm. Code 790.60).

In light of the fact that Claimant has sought final determination of this claim without exhausting administrative remedies, this claim must be denied.

It is ordered, adjudged and decreed that this claim is dismissed.


author: Dillard, J.

text:
    (No. 87-CC-0322
    Frank T. White, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 25, 1989.

    Bernard A. Puglisi, for Claimant.
    Neil F. Hartigan, Attorney General (Gregory Thomas Patrick Condon, Assistant Attorney General, of counsel), for Respondent.
   Dillard, J.

Claimant, Frank T. White, filed his complaint in the Court of Claims on August 25, 1986. He alleges that on January 4, 1986, while an inmate of the Illinois Department of Corrections, his right knee was severely injured while he performed certain physical labor at the direction of a prison guard. Claimant seeks $100,000 in damages.

The case was tried before a Commissioner on November 6, 1987. The evidence consists of the transcript of testimony, certain admissions pursuant to a demand to admit facts, trial exhibits, the departmental report pursuant to section 790.140 of the Court of Claims Rules (74 Ill. Adm. Code 790.140) and a supplemental departmental report. Both parties have filed briefs and Claimant’s counsel has advised he would not be filing a reply brief.

The Facts

On January 4, 1986, one day after his arrival at the Vienna Correctional Center, Claimant was directed to buff the floor and mop the lobby of the prison wing in which he resided. This assignment was made by a sergeant of the Department of Corrections. Claimant testified that he had to follow the orders of the sergeant. Claimant completed the floor buffing in about 45 minutes. After he made a telephone call, Claimant alleged he was ordered to mop the stairwell down from the third floor to the first floor. No one supervised him during the mopping work. The mop weighed about two pounds and the bucket and ringer weighed 15 to 20 pounds. The mopping took about 40 minutes. He mopped down the three flights of stairs and then walked up three flights to put the mop and bucket away. After he mopped, Claimant felt pain in his right knee. He had no pain in his knee prior to the stair mopping and his knee had been “fine” in the six months prior to being assigned to Vienna. The pain was allegedly a grinding pain and very severe.

Claimant had a history of knee problems and testified that he explained this to the sergeant prior to the work. Claimant went to the medical unit and explained his knee pain to a medical technician. He was given pain killers and then was sent back to his living unit. The pain continued the evening of the physical activity and there was swelling around the joint. He went back to the medical unit on Sunday, January 5,1986, for pain killers and received a lay-in slip which kept him off work details. On Monday, January 6, 1986, he saw a doctor. The doctor had Claimant transferred to a lower living unit so he would not have to climb stairs and prescribed Tylenol. X rays were also taken on January 6, 1986. The next time Claimant received any treatment was February 26, 1986, when the knee was still swollen and Claimant had considerable pain. In April of 1986, Claimant was taken to Lourdes Hospital in Paducah, Kentucky.

He told a physician at Lourdes Hospital that he had a history of knee trouble for the past four years but had not experienced problems since his last surgery. The doctor diagnosed that excessive weight on the knee made the top bone pierce the muscle tissue and the joint was grinding bone-to-bone. Arthroscopic surgery was recommended and performed on April 18, 1986, on an outpatient basis. The swelling remained and Claimant continued to take medication. As Claimant still experienced pain, he saw the doctor again in May of 1986. The doctor prescribed Claimant a brace, exercise equipment and continued his medication until January 11,1986, when Claimant was released from prison.

The brace helped give the knee stability and Claimant used it daily. If he does not wear the brace, the knee gives out and he also experiences pain. After leaving prison, Claimant received treatment in Danville, Illinois. He had the knee drained and received a cortisone shot in August of 1986. In June of 1987, he had the knee X-rayed at a veterans hospital and was told no more surgery could be performed on the knee. He was advised by doctors that in five to six years he would need a reconstructed knee or to stay off of it altogether. The knee continues to swell and he has considerable pain from the knee whenever he walks or climbs stairs. Prior to the injury in question, Claimant walked and climbed stairs without pain. He had no problems with his knee since November 1981 when the arthroscopic surgery was first performed on the knee for bone chips.

Additionally, the Claimant testified that on the day he arrived at Vienna he had assisted an older inmate carry his boxes upstairs. On January 4, 1986, after buffing the floors, he got into an argument with the sergeant. Claimant testified that he informed the sergeant that he was in no condition to carry the weight of the mop and bucket on the stairs. Allegedly the sergeant told the inmate to do the chore or face disciplinary action.

On cross-examination, Claimant admitted that he originally had injured his knee in 1980, while he worked as a painter. A ladder broke and he fell six feet, tearing ligaments and causing bone chips. His first surgery followed two months later. He did not participate in sports after the 1980 incident. Between 1980 and 1984, he had three major surgeries and three arthroscopic surgeries on his knee.

Additionally, Claimant testified that his workers’ compensation claim for the 1980 injury as a painter led to a settlement of 40% to 60% loss of the right knee. At the time of hearing, Claimant had pending a claim for social security disability.

The departmental reports indicate that Claimant filed a grievance against the Respondent which complained of the work he was forced to do. The investigation found no staff negligence. The grievance dated January 4, 1986, only mentioned sweeping and buffing but significantly fails to mention mopping of stairs. In the sergeant’s report, he indicated that Claimant was to buff all the front areas of the wing and the center core. However, Claimant did only one wing and quit because the buffing was too much for him and he wanted to make a telephone call. The sergeant explained to Claimant that if he had not been on the phone so long, he would have completed the work. Finally, the reports indicated that at the medical unit, Claimant made no statement that his knee was injured while he worked and did not inform his physician of a re-injured knee. The reports indicated that the State paid for all Claimant’s medical treatment while incarcerated, totaling $2,910.86. Importantly, Dr. Lopansri’s departmental report stated, “I do not feel that the assignment of buffing the floor had any adverse effect on his knee.”

The Law

The Court of Claims must not unduly interfere with the large amount of discretion which must be accorded the Department of Corrections officials in handling the day-to-day affairs of operating its institutions. (Petrusak v. State (1987), 39 Ill. Ct. Cl. 113.) Inmates do, however, have a right to safe and adequate work tools and the State has a duty to properly supervise the work of inmates. (Davis v. State (1987), 39 Ill. Ct. Cl. 1985.) The State of Illinois is required to exercise the same standards of care and safety required of private industry. (Burns v. State (1982), 35 Ill. Ct. Cl. 782; McGee v. State (1977), 31 Ill. Ct. Cl. 326; Hoskins v. State (1965), 25 Ill. Ct. Cl. 234.) As an inmate, Claimant was required to take orders and carry them out. He did not have the same independence as a person outside the penitentiary. To refuse work would subject him to disciplinary action. Goodrich v. State (1984), 36 Ill. Ct. Cl. 326; Moore v. State, 21 Ill. Ct. Cl. 282.

The argument of Claimant is that he advised a guard of his knee condition, that he could not perform this heavy work, but did so because of the potential disciplinary action. He was, therefore, severely injured. The alleged notice to the guard would give notice to the State of a dangerous condition and a possible recovery. (Burns v. State (1982), 35 Ill. Ct. Cl. 782.) Only the notice would be a basis for recovery since there was no proof of an inherently dangerous condition or that the tools provided were not proper for their use. Robinson v. State (1984), 36 Ill. Ct. Cl. 298; McCahee v. State (1977), 33 Ill. Ct. Cl. 326.

The case turns on the credibility of the Claimant. The Claimant testified the floor buffing was not a problem for his knee. The injury occurred because of the mopping of the stairs. The Department’s Rule 14 report indicated no orders to mop the stairs and Claimant’s original grievance — the day of the occurrence— said nothing about mopping stairs. Dr. Lopansri’s report from the health care unit indicated no complaint of mopping stairs and further stated that the assignment of buffing the floor had no adverse effect on Claimant’s knee.

Since the State of Illinois is not an absolute insurer of Claimant’s safety and if this chronically-injured knee just “gave out,” the Respondent is not liable. If the Claimant only buffed the floor and not mopped the stairs, then his testimony is an attempt to defraud the State. The guard’s report and Claimant’s failure to address stair mopping as the cause of his injury in his original grievance filed on January 4, 1986 — the day of the occurrence — lead to a credibility gap. If so, his testimony at trial was false and his claim must be denied. Cotton v. State (1986), 39 Ill. Ct. Cl. 167.

All of the cases cited by Claimant as to breach of duty have factual situations showing an inherently dangerous job, insufficient training for a particularly difficult or dangerous job, or that the State had knowledge of a dangerous condition. Hoskins, supra; Reddock v. State (1978), 32 Ill. Ct. Cl. 611; Scott v. State (1973), 28 Ill. Ct. Cl. 373; West v. State (1976), 31 Ill. Ct. Cl. 340; and Adler v. State (1977), 31 Ill. Ct. Cl. 326.) Such is not the case here before the Court.

Mopping, even assuming Claimant mopped stairs, would not be an inherently dangerous condition nor would it require special training. There was no believable evidence the State had any knowledge (hat mopping would be an inherently dangerous condition to Claimant. As to buffing, the Claimant’s testimony and the doctor’s report indicate it was not a dangerous condition. The only danger would have been if Claimant advised the sergeant he could not mop the stairs because of a chronic knee ailment. This he did not do. The original grievance of Claimant, in his own handwriting, belies his argument. In that grievance, he states he was told to sweep and buff one wing. He grieved that he was ordered to do the remaining three wings. No mention at all was made of mopping three flights of stairs.

There was no negligence by the Respondent or its agents. Therefore, be it ordered that this claim must be, and is, denied.


text:
    (No. 87-CC-0424
    William Jamison Bey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 5, 1989.

    William Jamison Bey, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Kimberly L. Dahlen, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant is a prisoner in the custody of the Illinois Department of Corrections. In this case Claimant seeks damages from Respondent based on his claim that Respondent is liable for the loss of Claimant’s black and white Panasonic television set. Claimant seeks damages in the sum of $77.05.

Claimant’s testimony at trial revealed that on March 17,1986, Claimant owned and was lawfully possessed of his black and white Panasonic television set. On that date Claimant was placed in segregation by Department of Correction guards. In the process of placing Claimant in segregation, all of his personal property and clothing were taken to the personal property room. Thereafter, on March 27, 1986, Claimant “departed” from segregation and went back to the personal property room where he received his television and the rest of his personal property. When Claimant returned to his cell he found that the television set was damaged. Ten days later, Claimant was again taken to segregation, but was not afforded any opportunity to place his personal property in the personal property section. Claimant was released from segregation on July 29,1986, and when he received his personal property back, the television set was “totally damaged.” Claimant’s television was not functioning at all. Claimant’s damages are alleged to be in the sum of $77.05 which was the purchase price. The television set was two years old.

We do not reach the issue of Claimant’s claim for loss or damage to his personal property in this case for the reason that it does not appear that Claimant exhausted his administrative remedies prior to filing his claim with the Court of Claims. Section 790.60 of the Court of Claims Rules (74 Ill. Adm. Code 790.60) requires that Claimant must, before seeking final determination of his claim before the Court of Claims, exhaust all other remedies whether administrative, legal or equitable. This rule is based on section 25 of the Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.24 — 5) which imposes an identical obligation on the Claimant.

Claimant testified that he was aware that he had the right to file a grievance with the “Adjustment Committee” at the institutional level. Claimant testified that it was his own choice to speak directly to a chief administrative officer of the prison, which he did. Claimant testified that he did not write a grievance to the Institutional Inquiry Board but that the institution officials were well aware of Claimant’s complaint. Claimant testified that in light of the fact that officials of the institution were aware of the problem, and did nothing, the filing of a grievance to institutional authorities would have been fruitless.

Notwithstanding Claimant’s belief that a formal grievance to the Institutional Inquiry Board would have been fruitless under the circumstances, this Court can not finally adjudicate a claim until the Claimant has exhausted possible administrative remedies.

It is therefore ordered, adjudged and decreed that the Claimant’s claim be denied for the reason that Claimant has sought final adjudication of his claim in this Court without complying with section 790.60 of the Court of Claims Rules (74 Ill. Adm. Code 790.60).


author: Patchett, J.

text:
    (No. 87-CC-0962
    Pinckneyville Medical Group, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 21, 1988.

    Don Johnson, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause coming on for the Court’s consideration on Respondent’s motion to dismiss, due notice having been given and the Court, being fully advised, makes the following findings:

This claim, the caption of which identifies the Claimant as Pinckneyville Medical Group, a medical group practice, in fact presents the vendor-payment claims of Dr. Fozard and Dr. Shanbhag, who are affiliated with that group. In its departmental report, the Illinois Department of Public Aid (IDPA) notes that the individual physicians, rather than the medical group, were enrolled participants in the Department’s Medical Assistance Program (MAP) when the subject services were rendered; and the claim was therefore investigated and reported by IDPA as if filed by the two physician-participants. Because only the individual physicians, and not the group practice, are MAP enrollees, and because group practices as such are not permitted to enroll in IDPA’s program, only the two physicians would have standing to bring the instant action under section 11 — 13 of the Public Aid Code (Ill. Rev. Stat. 1985, ch. 23, par. 11 — 13). See this Court’s opinion filed in Canlas v. State (1987), 39 Ill. Ct. Cl. 150.

As indicated in IDPA’s report, the claim seeks section 11 — 13 vendor payments by the two physicians on four patient accounts, namely, Dr. Fozard’s services for patients Hammond and Huggins, and Dr. Shanbhag’s services for the same two patients. The Department has accepted liability, to the extent of the maximum dollar amounts authorized by its pricing schedules and policy, for patient Hammond’s services; and denies all payment liability for patient Huggins’ services.

This claim was filed on November 14,1986. Patient Huggins’ services, for which Claimants seek payment, were rendered on June 6, 1983, more than three years prior to Claimants’ commencement of this action. In fact, Claimants initially billed Huggins’ services to IDPA in invoices received by the Department on September 18, 1986, more than three years after they had rendered such services. Their invoices were disallowed, and payment, refused by IDPA, due to the tardiness of these invoices.

In responding, IDPA challenges Claimants’ claim for payment of Huggins’ services on the ground, inter alia, that Claimants’ individual causes of action in respect to such services had already been barred, when filed with this Court, under the provisions of section 11 — 13, and of section 22(b) of the Court of Claims Act. (Ill. Rev. Stat., ch. 37, par. 439.22(b).) We find that challenge to be valid.

Section 11 — 13 establishes a one-year limitation on the filing of claims by vendors seeking State payment for goods and services furnished to or on behalf of IDPA recipients. A vendor’s cause of action “accrues” and the running of the one-year limitation period begins on the date of specified events; and the statute provides for alternate accrual dates, depending upon when IDPA received the vendor’s initial invoice. If the vendor proves that its initial invoice was received by IDPA within six months following the date of service, and if IDPA refused payment of that invoice, then the one-year limitation period begins to run on the date of IDPA’s notice to the vendor of such refusal. If, on the other hand, the vendor cannot prove that IDPA received its invoice within six months after the date on which the services were rendered, then the cause of action as to such services accrues six months following the date of service, and the limitation period runs from that date. Under this alternate situation, the vendor must commenee its action in this Court within 18 months following the date of service, i.e., within one year following the date of accrual, if it is to avoid the bar of the limitation period in section 11 — 13.

In this case, although Claimants provided patient Huggins’ services in June 1983, the record which they present indicates that their initial invoices were not submitted to IDPA for over three years thereafter. While Claimants attempt to attribute their delay to the patient’s tardiness in supplying them with information that she was an IDPA recipient, that fact cannot excuse Claimants’ own inaction. As IDPA notes, Claimants do not allege that they themselves made any effort, from June 1983 through September 1986, to contact the local IDPA office in an attempt to determine whether Huggins may in fact have been eligible, as of June 1983, for MAP benefits under IDPA’s program. Such lack of diligence by Claimants cannot excuse them from complying with the deadlines imposed by IDPA Rule 140.20 (89 Ill. Adm. Code 140.20) and by Federal regulations (see Title 42, Code of Federal Regulations, §447.45(d)(1)). See Rock Island Franciscan Hospital v. State (1987), No. 83-CC-1956, and prior decisions therein cited.

This Court has previously observed

“that the Federal government’s continuing participation in the funding of Illinois MAP program is dependent upon IDPA’s regular enforcement of these regulatory requirements. Applicable here are the requirements: 000 that correctly-prepared invoices be timely received by IDPA.” Methodist Medical Center v. State (1986), No. 83-CC-1572.

It is apparent here that Claimants could have complied with the above regulatory deadlines as to Huggins’ patient accounts, and thereby helped avoid the risk of a denial of Federal government funding in IDPA’s payments for such services.

With respect to Huggins’ June 6,1983, services, we find that Claimants’ causes of action accrued, within the meaning of section 11 — 13, on December 7, 1983; and that said causes were barred as of December 8,1984, one year following such accrual.

It is therefore hereby ordered:

That Claimants receive and be awarded the following sums in full payment of patient Hammond’s medical services: $76.00 to J. Gregg Fozard, M.D. (SSN [ XXX-XX-XXXX ]), and $412.00 to Madhukar Shanbhag, M.D. (SSN [ XXX-XX-XXXX ]), in accordance with IDPA’s acceptance of liability for said services; and

That Respondent’s motion to dismiss the complaint and the underlying action herein as to patient Huggins’ services, pursuant to paragraph 2 — 619 of the Illinois Code of Civil Procedure, on the ground that Claimants’ causes of action as to said sérvices were already barred by section 11 — 13 of the Public Aid Code (Ill. Rev. Stat. 1985, ch. 23, par. 11 — 13) and by section 22(b) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.22(b)) when this action was commenced, is hereby granted; and this action, as to Huggins’ services, is dismissed with prejudice.


text:
    (No. 87-CC-1701
    Mark L. Crossland, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 19, 1988.

    Mark L. Crossland, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

This cause coming to be heard upon the report of the Commissioner, after hearing before said Commissioner, and this Court being fully advised in the premises:

Finds that on August 11, 1987, Claimant, Mark Crossland, was an inmate at Menard Correctional Center. On that date and while at work in the prison hospital, he learned from an Officer Bower that his cell was shaken down by correctional officers looking for contraband. Claimant received a pass to return to his cell and upon arrival observed his cell door open about eight inches. When he looked in the cell, he saw his fan laying on the floor and both his bed and his cellmate’s bed messed up. When he left in the morning to go to work, his cell was deadlocked. This means that the cell was double locked with two separate locks.

Claimant found his cellmate and checked with a sergeant who advised them to go into the cell to check and note missing items. The following items belonging to Claimant were missing or damaged:

(a) One wedding ring valued at $175.00, no receipt.

(b) One Panasonic radio — returned.

(c) Twelve packs of cigarettes valued at $12.00, no receipt.

(d) Two pairs of Maverick jeans and one pair of Dickey jeans valued at $24.00, no receipt.

(e) One broken fan purchased 5/21/86 for $22.97, receipt produced.

Claimant complained to the officers at that time in the cellhouse about his loss and broken fan. Since his initial complaint, Claimant’s Panasonic radio was returned from another inmate. Claimant valued his lost and damaged property at $240.01. Claimant testified that he was unable to obtain receipts or personal property contracts for the lost articles because he was told by prison officials that his file could not be found.

Claimant further testified that he did not know who took his property and his cellmate was working with him at the time of the theft. The departmental report indicates Claimant exhausted his administrative remedies through the Department of Corrections where his claim was denied based upon a finding of no substance to the complaint and a lack of staff negligence. The captain believed to have searched Claimant’s cell could not recall doing so and the sergeant was unable to corroborate Claimant’s allegations because he was unable to recall the incident or searching of Claimant’s cell.

The facts of the instant case are similar to the facts in Owens v. State (1985), 38 Ill. Ct. Cl. 150. In Owens, an inmate was taken to the infirmary. His cell was deadlocked. When he returned to his cell, his personal property was damaged or stolen.. Claimant did not know what happened to his personal property and he too had a cellmate. The Court, under those circumstances, refused to find a presumption regarding the State’s responsibility for Claimant’s property and did not require the State to come forward with proof of due care as in Doubling v. State (1976), 32 Ill. Ct. Cl. 1. The Claimant in Owens did not know what happened to his property and could not show that it came into the exclusive control of the State, and his claim was denied.

Claimant in the present case produced no evidence as to where the property was located in the cell, there was no evidence that persons could not reach in the cell and take the property, there was no evidence as to traffic in the gallery and no evidence as to control of the cell doors, and the departmental reports indicated the guards could not recall searching Claimant’s cell, but if they did, the cell door was not left open. This sparse evidence in the present case is similar to the facts in Dungleman v. State (1980), 34 Ill. Ct. Cl. 212, wherein the claim was denied. A similar claim was also denied in Jarrett v. State (1979), 33 Ill. Ct. Cl. 154.

The Claimant did present evidence that his missing Panasonic radio was returned by an inmate. This Court has laid down the general rule that there is no general duty on the part of the State of Illinois to safeguard an inmate’s property from theft by other inmates when that property is in the inmate’s cell. Edwards v. State (1986), 38 Ill. Ct. Cl. 206; Barges v. State (1976), 32 Ill. Ct. Cl. 99.

It is therefore ordered that this claim is denied and Claimant’s complaint is dismissed with prejudice.