author: Patchett, J.

text:
    (No. 85-CC-2350
    Angela Dawn Owsley, a minor, by her father and next friend, Richard W. Owsley, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 6, 1995.

    Heiligenstein & Badgley (Brad L. Badgley, of counsel), for Claimant.
    Jim Ryan, Attorney General (Chad D. Fornoff, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim arose out of an automobile accident which occurred on December 9, 1993, at the intersection of Illinois Routes 13 and 142 near Equality, Illinois. The Claimants were passengers in an automobile being driven north on Route 142. As the car entered the intersection, it was struck by a pickup truck traveling west on Illinois Route 13. As a result of the accident, the various Claimants sustained a wide range of injuries, some of them very serious. The basis for the claim is that the red flashing lights, which had been placed above the stop signs on Illinois Route 142, were inoperable.

The State of Illinois is not an insurer against all accidents which may occur by reason of a condition of its highways. Gray v. State (1954), 21 Ill. Ct. Cl. 521; Scroggins v. State (1991), 43 Ill. Ct. Cl. 225.

A claimant must show that the State had actual or constructive notice of the defect in order to recover on a negligent highway maintenance claim. Pigott v. State (1968), 26 Ill. Ct. Cl. 262; Scroggins, supra.

In the present case, there was no evidence that the State of Illinois had actual knowledge that the light in question was inoperable. No evidence was submitted as to when the light became inoperable. Therefore, we must look to the issue of constructive notice. Since we do not know when the light became inoperable, the normal means of proving constructive notice are inapplicable. Either the nature and extent of the defect, or the length of time the defect existed, may be used to establish constructive notice. Numerous cases have upheld constructive notice in those situations. Based on the facts at hand, neither the nature and extent of the alleged defect, nor the length of time that the defect existed, are available to the Claimants to prove constructive notice.

The Claimants have made a very strong, somewhat unique argument that the State should be liable for failure to inspect or perform preventative maintenance on the lights. This is despite the fact that the lights were not required to be placed there to begin with, and despite the fact that there is no evidence as to when the lights in fact failed. While the Claimants have done an extraordinary job as attorneys in preparing and advocating this argument, there are simply insufficient facts to warrant the finding of liability on that theory in this case.

Finally, and most important, the driver of the automobile in question ignored numerous other traffic control devices which were present and which were not in defective condition. The presence of the other traffic control devices, including the stop sign in this instance, would preclude a finding of liability against the State.

For the reasons stated, we deny this claim.


source: Caselaw Access Project

author: Sommer, C.J.

license: Public Domain

text:
    (Nos. 86-CC-1644, 86-CC-1645 cons.
    Kim Sutter and Elizabeth Fleming, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 19, 1996.

    Wiseman, Schaikewitz, McGivern, Wahl, Flavin, Hesi, Barylske & Mormino (Mark W. Parker, of counsel), for Claimants.
    Jim Ryan, Attorney General (Nuviah Shurazi, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

On the morning of Saturday, April 21, 1984, shortly before 9:00 a.m., Claimant Elizabeth A. Fleming was operating her 1982 Ford Escort southbound on Illinois Route 3 near the Bissell Street intersection in Madison County. Claimant Kim Sutter was a passenger in the front seat. The drivers sister, Patricia Simpson, was also a passenger. Although it had been raining the night before, Claimant Fleming testified that the weather was fine, although it was misting a bit and was partly cloudy.

The vehicle operated by Claimant Fleming struck water in a southbound lane of Illinois Route 3 and overturned, causing injuries to the Claimants. Claimant Kim Sutter alleges that the accident and her resulting injuries were caused solely by the negligence of the Respondent. Claimant Elizabeth Fleming maintains that the Respondents agents had notice of the dangerous condition created by water on the highway and did not act with sufficient dispatch to correct the condition or to warn users of the highway of the dangerous condition.

There is no dispute that Illinois Route 3 at the location of this accident was under the jurisdiction of the Illinois Department of Transportation (hereinafter “IDOT”) at the time of the accident. Illinois Route 3 at the scene of the accident consists of three 12' northbound lanes and three 12' southbound lanes, both bordered by a 10' stabilized asphalt shoulder. The northbound and southbound lanes are divided by a 6' median with a raised concrete barrier in the middle. From the center of the middle concrete barrier to the outside edge of the stabilized asphalt shoulder the pavement measures 49 feet for both northbound and southbound traffic.

Claimant Fleming testified that as she proceeded south on Route 3 there was nothing obstructing her view, and she was traveling 45 to 50 miles an hour. She testified that she was driving down the road and the next thing she knew the car was out of control and upside down with water pouring through the car. She stated that she never saw the water on the pavement prior to the accident.

The evidence revealed that the Madison Police Department called IDOT at 7:39 a.m. on April 21, 1984, and warned of water on the pavement. Under the heading “Particulars of Communications” an IDOT employee made the following entry as to the communication at 7:39 a.m. from the Madison P.D.:

“WATER ON PAVEMENT IL 3. 300 yards N of Bissell Street in Southeast lane, River Road, highway Route 3 that follows the river at Old Army Depot.”

Traffic Operations Engineer George Huhman was off duty on Saturday, April 21st when he was called by the IDOT dispatcher. Huhmans diary concerning the call recites as follows:

“Received call from Hazel, dispatcher around 7:30 a.m. advising water on pvt. Route 3 in Venice, after talking it over told Hazel did not think it was mine but the City of Venice. Hazel advised would see K. Called back shortly, and I still did not think location was our.
Hazel called back around 8:00 a.m. advised water 1 foot - 2 feet deep on Route 3 near Army Depot, S.B. Lanes. Advised Hazel would (?) would clc. it out.”

Huhman testified that during the first conversation he and the dispatcher, Hazel, discussed the location of the standing water. After the conversation with Hazel, Huh-man said he was not sure if the area where the water was located on the highway was or was not in his area. Huh-man stated that the dispatcher informed him that she would check on the jurisdiction and get back with him. The dispatcher called Huhman back and spoke to him again about the situation. Huhman has no specific memory of what was said in the second telephone conversation. In any event, after the conversation Huhman still did not believe that the area where the water was sitting was his area of responsibility or IDOTs responsibility, but he also was not sure that the area was definitely not in his area of responsibility. Huhman testified that the diary entry after the first entry related to a third call between him and the dispatcher. It was at that time, about 8:00 a.m., that Huhman claimed that the dispatcher told him water was one to two feet deep, and it was near the Army Depot. Huhman stated that when the dispatcher (Hazel) mentioned that it was near the Army Depot, he was convinced that the water was in his area of responsibility. He advised the dispatcher that he would take care of it. Huh-man stated that according to his log he immediately called Kyle Steiner, an IDOT employee, knowing that one to two feet of water on Route 3 would be an unsafe and hazardous condition. Huhman was aware that the speed limit on Route 3 at the subject location was 55 m.p.h.

Huhman contended in his testimony that the radio dispatcher did not give him all of the information recited on her log sheet when she first called him at 7:39 a.m. Huhman admitted that if he had had all the information logged on the radio dispatchers log sheet, he would have deemed it to be an emergency situation within his jurisdiction that required immediate action. Huhman also stated that there were IDOT employees who lived closer to the area than the man he called, Kyle Steiner, and that John Gabriel and Larry Widdows lived closer. Huhman explained that there was a union contract establishing requirements for employees who were called out on overtime pay. Huhman testified that IDOTs “normal chain of command” on a call-out situation was to go to the lead worker, who was Mr. Gabriel, but that he must not have been home.

Huhman testified that Hazel Schooler, the radio dispatcher, had a map as to the jurisdiction of IDOT, but Huhman stated that the dispatcher initially did not tell him exactly where the dangerous condition was. Huhman denied that the entries which located tire water near the Army Depot on the dispatchers log accurately reflected the three conversations he had with the dispatcher. Huh-man admitted that he had power to deviate from the union contract in emergencies; but that his diary did not show that he had called either Mr. Gabriel or Mr. Widdows. Huhman acknowledged that the dispatcher thought that the area was within IDOTs jurisdiction when she called Huhman.

Kyle Steiner of IDOT testified that at the time in question he was a foreman with IDOT. Steiner did not remember who contacted him on the day in question or what time he was contacted, but stated that after he was contacted he called out Tom Butler to assist him. Steiner did not have coffee, but went out as soon as he could. Steiner did not remember how long it took him to get to the accident scene or what time he left home. IDOTs departmental report reflected that Steiner went 10-8 at 8:26 a.m., which meant that he was going in service. Steiner picked up Butler on Liberty Street in Alton, but did not recall the time. Steiner did not remember whether Butler was ready when he got there to pick him up or not. Butlers house was closer to the accident than Steiners house. Steiners guess was that it would have taken maybe 20 minutes to get to the accident scene from Butlers house. When they arrived at the scene they saw the Claimant’s vehicle overturned. There were no warning signs warning motorists of standing water. Steiner and Buder unclogged the drains serving the southbound lanes. Steiner stated that in emergency situations someone could be called who lives closer, and that if he had the information that the dispatcher stated was conveyed to Huhman he would have known that that was within IDOT jurisdiction.

In recent years, this Court has decided similar cases. In Sallee v. State (1990), 43 Ill. Ct. Cl. 41, an award was made because the State failed to warn of water on a highway even though it had notice of the defect in question. In Sallee, Justice Montana wrote:

“Another difficult issue to resolve in this case, and the one which more often arises in similar cases, is that of negligence. Numerous cases decided by this Court have held that this State is not an insurer as to the safety of motorists or passengers upon its highways. The State is only required to maintain its highways in a reasonably safe condition. In addition, before the State can be held liable for highways which are not maintained in a reasonably safe condition, the State must have notice of the dangerous condition.
This notice requirement has been defined by this Court in numerous cases to be either actual notice or constructive notice. If the State had notice of water standing on the roadway at this location, the State would have been required to either correct that situation or to place warning signs as to the dangerous condition.”

Unlike the Sallee case, there is no serious dispute in the case at bar that (1) a substantial amount of water had accumulated on the southbound lanes of Route 3 as a result of clogged drains, and (2) at 7:39 a.m., the State had actual knowledge of this emergency dangerous condition. Also, there is no dispute that at the time the Claimants in this case approached the scene of the accident on Illinois Route 3 there were no warnings or barricades of any kind to alert the Claimants to the presence of this dangerous condition. However, unlike the fact situation in the similar case of Haggard v. State (1983), 35 Ill. Ct. Cl. 727, 730, the State did not have any knowledge or notice that the area in question was likely to flood in heavy rain, or that the drainage sewers serving that area of Illinois Route 3 would be likely to clog, or had any time in the past clogged or presented any problems or hazards to traffic. In cases where the State was on notice that a particular area of the highway was likely to flood or become impassible or dangerous due to water standing on the highway, this Court has not hesitated to make awards to compensate Claimants victimized by the dangerous condition created by heavy rainfall of which the State had prior notice. Haggard, supra. Also see the exhaustive opinion of Judge Raucci in Scott v. State (1990), 43 Ill. Ct. Cl. 85.

Thus, in appropriate circumstances, this Court has repeatedly sustainéd awards in situations where the State has failed to give warning of dangerous conditions of which it has either actual or constructive notice. Gatlin v. State (1985), 39 Ill. Ct. Cl. 51; Heid v. State (1991), 44 Ill. Ct. Cl. 82, 87.

Thus, it would appear that the narrow issue which the Court is called upon to decide in the case at bar is whether, under the particular facts and circumstances of this case, the Respondent acted reasonably to discharge its duty to give warning to motorists of a dangerous condition of which the State admittedly had actual knowledge. Claimant Fleming cites Judge Patchetts opinion in Shaw v. State (1986), 38 Ill. Ct. Cl. 129, and Justice Holder-mans opinion in Robertson v. State (1983), 35 Ill. Ct. Cl. 643. Both cases awarded damages to the Claimants injured by dangerous conditions on the roadway. In Shaw, the roadway in question had been dangerous and become progressively worse over a period of almost 2 years with no warning signs posted. (Shaw, supra, at 313.) In Robertson, the Claimants were injured when their vehicle struck a hole in the road upon which an attempted repair had been made 5 days before the accident. This repair was done in a manner that was not recommended with a temporary patch that was known by the Respondent to be susceptible to failure within a short period of time. No warning signs of the dangerous condition had been erected by the Respondent. This Court found that the State was negligent in having failed to use recommended procedures to properly repair the dangerous condition and having failed to warn motorists of the dangerous condition of the roadway.

Claimant Fleming also cites Allen v. State (1984), 36 Ill. Ct. Cl. 242. In Allen, this Court denied relief to a motorcyclist who was injured when he lost control of his motorcycle. The motorcyclist contended that a patched area in the highway had caused him to lose control. In Allen, Justice Roe found that the Claimant had failed to meet his burden of proof, and that he had failed to show that the patched area of the highway was so defective and dangerous that it left the highway unfit for the purpose for which it was intended, or that the highway was not reasonably safe. IDOT employees testified that the area in question had been repeatedly examined and repaired using state maintenance standards. Shaw, Robertson, and Allen do little to support the theory of Claimant Fleming in the case at bar.

Claimant Fleming also relies on Haggard and National Bank of Bloomington v. State (1990), 34 Ill. Ct. Cl. 23, which, nearly identical to Haggard, held an award justified where the evidence indicated that a flooding condition over a roadway was a recurring condition and it was the practice of the State to place temporary warning signs whenever water accumulated. In National Bank of Bloomington, there was evidence that the dangerous condition at the site of the accident had existed over a period of 28 years, and that on occasion the State had placed temporary lighted signs to warn motorists, which were not present when the accident happened.

Finally, Claimant Fleming offers Interstate Bakeries v. State (1974), 29 Ill. Ct. Cl. 446. In Interstate Bakeries, it was claimed that the Respondent had failed to remove an accumulation of oil from the highway which caused an accident injuring the Claimant. The evidence indicated that the accident occurred on September 26, and that, as early as September 4 of the same year, the State had been notified by residents of a nearby village that oil was accumulating on the road and creating a dangerous condition. In fact, the Respondent had dispatched a maintenance crew to the site and had previously scraped excess oil off of the road. The condition was caused by oiling of the village roads adjacent to the highway. No warning signs were ever placed at the location where oil accumulated. This court held that the State had actual notice on September 4, 1966, of the dangerous condition prior to the accident on September 26 of the same year. An award was made in the face of evidence that the States maintenance crews had been to the site three to five times. The Respondent knew that the condition was a recurring one, and although the Respondent made efforts to repair the situation, the recurring nature of the situation was found to have placed the State on notice that its maintenance was ineffective and that warnings alerting motorists of a possible accumulation of oil at the intersection should have been posted. Again, Interstate Bakeries offers little support for the proposition that a reaction time of less than 2 hours on the part of the State to a known dangerous condition is unreasonable or negligent.

The two cases cited on behalf of Claimant Sutter, as to the liability issue are not helpful.

In McCoy v. State (1985), 37 Ill. Ct. Cl. 182, 185, the Court denied any award in the situation where the Claimant drove his automobile through a safety zone marked by flares and collided with a tow truck whose flashing lights were revolving. Also present were the flashing blue lights of a police car and a paramedics’ vehicle at the scene of an accident. The Respondent was found free from negligence in attempting to clear away the wreckage of an accident.

In McKee v. State (1978), 33 Ill. Ct. Cl. 58, 61, the Court allowed an award to a motorcyclist whose vehicle had struck a hole in a highway. The evidence revealed that a sewer line had been placed under the highway about a year prior to the accident, and that work had been done in that area almost yearly. State police officers noticed the depressed area where the accident occurred getting worse during the day, but did not believe the situation sufficiently bad to report to IDOT. The State placed no warning signals or barricades at the scene to warn motorists. Additional evidence was adduced that the Respondent had been patching the street in that area over a long period of time. The tendency of the highway to develop holes or dangerous conditions had apparently been caused by an improper auguring process used to install a sewer under the highway. The Court found that the State had continually had trouble with that stretch of roadway requiring repeated repairs and that the State had not properly fulfilled its duty in supervising the auguring under the highway, which created the dangerous condition. This Court concluded that the State had constructive notice of the dangerous condition, and thus, granted the injured Claimant an award.

Both Claimants argue long and hard that the facts in this case justify the conclusion that the State was negligent in failing to properly respond to a known dangerous emergency situation which had developed on Illinois Route 3 when drainage guttering had been unexpectedly blocked by debris. Claimant Sutter complains that, had engineer Huhman acted more quickly or assigned responsibilities to IDOT employees who lived closer to the scene, the accident would have been avoided. It should be remembered that Huhman was contacted by his dispatcher at 7:39 a.m. on a Saturday, and called Steiner who left his home at approximately 8:26 a.m. to pick up IDOT employee Don Butler in Alton and proceed to the scene, arriving sometime shortly after 9:00 a.m. It should be remembered that Huhman testified that he was uncertain from the description he got from the radio dispatcher as to whether or not the problem existed in an area of the highway under the jurisdiction of IDOT. Thus, he did not know whether he had jurisdiction until 8:00 a.m. Huh-man claims that he followed weekend work assignment procedures required by IDOT’s protocol and by union contracts, but did not deny that he had the power to deviate from normal procedure in emergency situations. Claimant Fleming argues that Huhman should have contacted other agencies or emergency personnel to place warning signs or divert traffic.

The arguments of both Claimants hang on a simple question with no simple answer — Did IDOT respond with reasonable dispatch to an unexpected emergency highway condition within its jurisdiction?

Claimant Fleming asserts that she was a 25-year-old woman, pregnant and expecting her third child at the time of the accident. The child was delivered by C-section four months after the accident. She was told by her physician not to work from the time of the accident until the birth of the child. She claims to have missed four months of work at $300 a week; and, as a result of the C-section delivery, she missed an additional month that she would not have missed had her third childbirth been normal. Her vehicle was totaled and had a value of approximately $4,100. She lists damages as follows:

Item Amount

Lost vehicle $4,100.00

St. Elizabeths Hospital 300.00

Ambulance bill 160.00

Dr. Yoder 600.00

Wage loss 6,000.00

Total................... $11,160.00

Claimant Fleming seeks an award of $15,000.

Claimant Sutter contends that she suffers from permanent injuries, and has had “constant middle and lower back pain.” Chiropractor Lawrence Seger diagnosed Claimant Sutter as having suffered an “acute severe sprain of the thoracic and lumbar spine with accompanied ligamentis instability, mild myofascitis and localized evidence of nerve root irritation.” Dr. Seger opined that the injuries were caused by the accident and would last throughout Claimant Sutters life expectancy of 46.3 years. Claimant Sutter lists medical expenses incurred and paid of $4,587 and seeks an award of $54,587.

The Respondent has cited 13 decisions, many of which are of little assistance. Among those cases cited is Pyle v. State (1973), 29 Ill. Ct. Cl. 133. In Pyle, the Court dealt with a problem involving a stop sign that had been knocked down at an intersection. The Claimant brought suit on the theory that the State was negligent in failing to replace the downed stop sign within a reasonable time after having actual notice of the dangerous condition. In a lengthy opinion authorized by Justice Burks, this Court reviewed a number of cases from both Illinois and other jurisdictions on the question of whether the State failed to take appropriate remedial action within a reasonable length of time after having actual knowledge of the dangerous condition on its highway. The evidence in Pyle was not disputed. The dangerous condition was first discovered by an Illinois State trooper 29 hours before the Claimants accident. The Court agreed that, at the time that the Illinois State trooper observed the dangerous condition, the State was chargeable with actual knowledge. The Court then identified the issue which this Court believes is the narrow issue, upon which the present case turns, as follows:

“We turn next to the question as to what length of time constitutes a “failure” on the part of the State to take appropriate remedial measures after receiving notice of a downed stop sign.” (Dangerous condition on the highway). Pyle, at 137.

The Court ruled that the answer to the above question depended on the facts and circumstances in each particular case. The Court held that Respondents failure to repair the condition or to erect warning signs over a period of 29 hours after actual notice could not be ruled to be negligence on the part of the Respondent, primarily because other signs were present.

The issue, exhaustively reviewed by this Court in Pyle, is not materially different than the issue before the Court in this case, even though most of the cases cited in Pyle involved downed stop signs. At least one case involved a hole in the highway. (Caudle v. State (1949), 19 Ill. Ct. Cl. 35.) In Caudle, the State had a four or five day notice that a hole existed in the highway, yet liability was not imposed.

In the present claim, it was a Saturday — a day in which most IDOT employees were off work. At 7:39 a.m., Mr. Huhman received a call from the dispatcher concerning the water on Route 3. It took 20 minutes, until 8:00 a.m., to locate the water within IDOTs jurisdiction. Mr. Steiner was called at 8:00 a.m. He got dressed, but did not drink or eat, and went out at 8:26 a.m. He picked up Mr. Butler directly on the way to the water on Route 3. He did not go to the yard or headquarters first. Mr. Steiner and Mr. Butler arrived at the scene at approximately 9:00 a.m. The accident occurred shortly before 9:00 a.m.

The Claimant argues that, had there not been the confusion between Mr. Huhman and the dispatcher as to the location of the water, and had a closer lead worker been called out, the accident would have been prevented by tire earlier arrival of the IDOT crew.

As we have stated previously, the length of time required to remediate a known dangerous condition depends upon the circumstances.

It is easy to speculate that the radio dispatcher employed by IDOT or the traffic engineer for IDOT could have reacted to evidence of the dangerous condition in a more timely, imaginative, or heroic fashion, but the precedents do not require such. So long as the IDOT employees conducted themselves in a reasonably diligent manner in relation to the known hazard and circumstances, we cannot hold them to a greater duty.

In the present claim, one to two feet of water was reported on Route 3. It was necessary for IDOT to locate the water and locate a crew to be dispatched to the scene. The crew had to prepare themselves to go out and then travel to the scene. All this took one and one-half hours on a Saturday. We find the response of the State to have been reasonably diligent under the circumstances and, therefore, the State did not breach its duty and was, thus, not negligent.

It is the ruling of this Court that the claims of both Claimants are denied.

      George Huhman's name is misspelled as Huemann in the transcript.


author: Patchett, J. Frederick, J.

text:
    (No. 86-CC-1944
    Gertrude Lynch, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 26, 1995.

      Order filed February 26, 1996.

    Chase and Werner, LTD. (Alan D. Katz and David S. Pochis, of counsel), for Claimant.
    Jim Ryan, Attorney General (Kenneth H. Levinson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim is the result of an accident which occurred on January 17, 1985, at the intersection of 143rd Street and Harlem Avenue in Orland Park, Illinois. Lynch was proceeding westbound on 143rd Street. As she passed the top of a hill, she lost control of her car in icy conditions. She veered into the eastbound lane and was hit by another automobile. As a result of this accident, she sustained serious injuries.

The road in question was a down slope and was covered by trees. The trees completely enclosed the roadway and did not allow sunlight to penetrate to any great degree. The Claimant testified that while the road had been clear prior to reaching the crest of the hill, it was extremely slippery on the other side. These facts were confirmed by numerous eyewitnesses.

This case involves the issue of constructive notice. The police officers who investigated the scene indicated that this was a problem area in which numerous accidents had occurred in the past. Many of these prior accidents involved weather conditions. The police officers further testified that copies of the accident reports were forwarded to the State of Illinois. Obviously, there is no way to confirm how many reports there were and whether the reports were in fact received by the State. However, it is clear that the standard procedure is to forward the accident reports to the State, and that at least some of them should have been received. The departmental report, filed herein by the Respondent, stated that a thorough search of the records disclosed one report of an accident due to weather conditions, and that was subsequent to the accident herein. Obviously, the State did not receive notice even of the particular accident in question. Therefore, the Respondents departmental report is suspect, at best.

Edward Zak, an employee of the Illinois Department of Transportation for 24 years, testified at the trial of this case. On the date of the accident, Zak was a maintenance field technician and responsible for the supervision, scheduling, and directing of maintenance activities along State roads in southwest Cook County. He testified that he had driven the road in question on numerous occasions during his career and had never ascertained that there was a problem. He further testified about the amount of equipment available to combat snow conditions during the period of the accident.

Denise Gartland, a bus driver in Orland Park, Illinois, testified that she made numerous trips in the vicinity of 147th Street and Harlem Avenue for ten years prior to the accident. She testified that she avoided the area by going around it during wet or icy conditions because the locale was always slick. Again, the police officers who investigated the accident confirmed the situation.

There is no evidence that the State had actual notice of the slippery conditions on the road in question on tire morning of the accident. Therefore, the issue is one of constructive notice. This is a close case. Obviously, the police officers’ testimony, taken along with that of the bus driver, indicate that some people knew that a dangerous condition existed at the accident scene for a long time prior to the accident. The State, however, produced evidence which showed that it may not have had adequate notice or warning of this condition.

This Court has held on numerous prior occasions that the State is not an insurer with respect to its highways or those who travel upon them. The State does, however, have a duty to exercise reasonable care in the maintenance of its highways, and the further duty to warn of those conditions which the State knows exist, but which they cannot adequately remedy.

The State is not required to keep its highways totally free from ice and snow — an impossible task. The State, however, must use all reasonable care to do so. Because the State could not have been charged with liability based on the failure to adequately correct the icy condition, the issue in this claim involves whether the State should have posted warning signs of the regularly recurring hazardous conditions at this site. Obviously they were not required to have posted a warning sign unless they had constructive notice of the defective condition in the first place.

Both the Claimant and Respondent have cited several prior decisions of this Court in this case. The Claimant has cited Burgener v. State (1964), 25 Ill. Ct. Cl. 6, on the issue of notice, but that case is distinguishable. There the State had notice that several other accidents had occurred at that location in similar weather conditions on the evening before the accident.

In Smith v. State (1984), 36 Ill. Ct. Cl. 5, this Court granted a claim on the basis that the State had constructive notice of a flooded viaduct. There the testimony established that the condition had been recurring regularly after heavy rains for many years, and the State failed to correct the condition or give proper warnings.

The Claimant also cited Kelly v. State (1981), 35 Ill. Ct. Cl. 56. There this Court awarded a claim where an accident occurred as the result of unusual accumulation of ice and water. The State knew of previous accidents at that site. The State failed to warn the public of the dangerous conditions, and that was the basis for liability. However, that case is somewhat distinguishable because there the State had specific notice of the situation and while attempting to warn the public, took insufficient steps in order to do so. However, the factual situation as to the ice at the scene is similar to the one that we face in this case. There, traffic was traveling on an overpass on wet, but not slippeiy pavement which became icy at the crest of the overpass. There, however, four vehicles had previously slid off the pavement on the morning of, and prior to, the accident.

The Respondent cites the case of Slagil v. State (1991), 41 Ill. Ct. Cl. 28, where this Court held that the absence of a warning sign did not create a hazard. However, that case involved a missing hazard sign regarding a curve on the highway. The section of highway was hilly and curvy and had numerous other warning signs and markings. Therefore, it is not particularly helpful in an analysis of the present situation.

Considering all the facts and the applicable law, we make the following findings:

We find that the State had, or should have had, constructive notice of the defective condition existing at 143rd Street and Harlem Avenue in Orland Park, Illinois. While the State is not an insurer of the highways, the State did have a duty to erect a warning sign. In fact, this was done after the accident in question. We therefore find liability of the State on this basis.

The Claimants injuries were very significant. During the trial of this case, the State did not attempt to use the affirmative defense of contributory fault. However, during the briefing of this case, the State did attempt to urge comparative or contributory fault of the Claimant.

This Court faces this situation numerous times in which the State attempts to rely on a defense which it has not previously pled or raised at the trial level. Because this defense was not raised or pled at the trial level, we reject it.

We find that the Claimants medical bills exceeded $200,000. We therefore award the Claimant the sum of $100,000, the maximum statutory amount.

ORDER

Frederick, J.

This cause comes on to be heard following notification that the Respondent will not be filing a motion for reconsideration; it is hereby ordered that this matter is closed.


author: Montana, C.J. Frederick, J.

text:
    (No. 86-CC-2861
    Warren J. Oppe and Theresa D. Oppe, Claimants, v. The State of Illinois, Respondent.

      Order filed November 29, 1990.

      Order filed May 13, 1996.

    Elmo E. Koos, Sr., for Claimants.
    Jim Ryan, Attorney General (Claire G. Taylor, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause is before the Court on Claimants’ motion to vacate order and to reconsider and Respondents responses thereto.

On July 3,1986, this Court entered an order dismissing this claim on the grounds that the complaint was not filed within the two-year period required by section 22(f) (now section 22(g)) of the Court of Claims Act. (705 ILCS 505/22(f).) Section 22(f) provided:

"All other claims must be filed within 2 years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues, in which case the claim must be filed within 2 years from the time the disability ceases.”

That decision was based on the record existing in the file in the Office of the Clerk of the Court of Claims at that time which consisted of a complaint, a notice of personal injury, and a motion to dismiss filed by Respondent. The complaint alleged that Claimants were injured on March 25, 1984. A circular stamped date on the front of the complaint indicated the date of receipt by the Court of Claims was April 2, 1986. (The Court did not see a square stamp on the back side of the last page of tire complaint dated March 25, 1986.) Respondents motion to dismiss asserted that Claimants’ complaint was filed beyond the two-year requirement of Section 22(f) of the Act. Claimants failed to file a response to the motion to dismiss. The Court, agreeing with Respondent’s assertions, dismissed Claimants’ complaint.

Claimants then timely filed a motion to vacate order and to reconsider. Claimants stated in the motion that the complaint was in fact filed on March 25, 1986, and not April 2, 1986. In support of this assertion, Claimants attached a copy of a complaint bearing a Court of Claims file stamp date of March 25, 1986.

Respondent then filed a motion to strike Claimants’ motion to vacate order and to reconsider. Shortly thereafter Respondent filed a motion to withdraw motion to strike Claimants’ motion to vacate order and to reconsider and objection to Claimants’ motion to vacate order and to reconsider. This document, in relevant part, states:

“4. It has come to Respondent’s attention that the facts in this case, pertaining to the time of the filing of the complaint, as set out in full in the attached affidavit (Exhibit A, attached hereto and incorporated herein by reference), present an issue not discussed heretofore.
5. The issue to be decided is what, under these circumstances, is a proper filing of a complaint. The pertinent documents are attached hereto as Exhibits B and C, and are incorporated herein by reference. Exhibit B is the first page of a complaint against the State of Illinois bearing a square stamp of the Court of Claims dated March 25, 1986. Exhibit C is a complaint against the State of Illinois with the same allegations, but with a round, red and blue stamp of the Court of Claims dated April 2, 1986, and a stamp showing case #86-2861. Exhibit C has an original signature and notary seal on the last page. [Note: Respondent’s file copy of Exhibit C is filed herewith as the Claimants’ original.]
6. Reference to the filing of complaints and assessment of fees for same, is found at Ill. Rev. Stat., ch. 37, sec. 439.21, entitled Fees. Section 21 states that the court is authorized to impose, by uniform rules, certain fees for the filing of petitions.
Court of Claims Rule #27 fixes the fees the legislature authorized in Section 21, by using the mandatory language of ‘* * * the following fees shall apply “ ”
Court of Claims Rule #4, entitled Procedure, at subsection A., entitled Filing, provides in pertinent part as follows:
‘Cases shall be commenced by the filing of a verified complaint with the Clerk of the Court * * *. The Clerk will note on the complaint, and each copy, the date of filing, and deliver one of said copies to the Attorney General or to the legal counsel of the appropriate State agency * ° V
Thus the Court of Claims rules set out what fees shall apply (shall being mandatory language), and what constitutes the filing procedure. Payment of fees is a condition precedent that the Claimant must meet.
7. Because the Affidavit (Exhibit A) establishes that no fee accompanied Exhibit B, actual and proper filing of the complaint took place on April 2, 1986 when Exhibit C was submitted with a fee and duly processed by the Clerk of the Court of Claims.
8. Therefore, as originally set out in Respondent’s Motion to Dismiss, Claimants' complaint is not timely, and should be dismissed.”

The affidavit referred to as Exhibit A is signed by Richard N. Rozarth and, in pertinent part, states:

“I, RICHARD N. BOZARTH, being first duly sworn upon oath, depose and state, that I am over 21 years of age and if called upon to testify, I could competendy testify as follows:
1. I am employed as a Docket Clerk of the Clerk of the Court of Claims, 630 South College, Springfield, Illinois, and I was so employed during April and May of 1986.
2. As a Docket Clerk of the Court of Claims, it is part of my duties to duly file complaints and other pleadings submitted to tire Court of Claims, and to act as custodian of the pleadings so filed.
3. On March 25, 1986, Mr. Elmo E. Koos, Sr., Attorney for Claimants in this case, came into the office building of the Clerk of the Court of Claims at 630 South College, Springfield, Illinois. Mr. Koos presented a complaint, and it was taken from him by Sandy Szkutnik, who was seated at a desk near the door. Ms. Szkutnik stamped the complaint with a stamp which states Tiled, Court of Claims, Mar. 25,1986.’ Mr. Koos tiien left the clerk’s office.
4. After Mr. Koos left, the complaint was handed to me for filing. Because I determined that no filing fee was included with the complaint, I did not assign it a case number, or send a copy to the Attorney General's office, or otherwise complete the fifing procedure.
5. On April 1, 1986, I telephoned Mr. Koos to inquire about the fee, and advised him to send it in immediately.
6. On April 2, 1986 I received by mail a check for the fee. The complaint which had been previously brought in had the square stamp (described above in paragraph 3) on the back side of the last page. I stamped the front page with a round dial-type stamp that said ‘Received, Court of Claims, 4-2-86.’ I also assigned the case the #86-CC-2861, and completed the required steps in the fifing procedure, including the sending of a copy of the complaint to the office of the Attorney General, and sending a letter to the Claimants attorney acknowledging filing.”

We note that while Claimants’ motion to vacate and to reconsider has been pending, Claimants have been involved in another suit in the Circuit Court of Woodford County and the Fourth District Appellate Court arising out of the same set of facts alleged in Claimants’ complaint in this Court.

The information contained in Claimants’ motion to vacate order and to reconsider and Respondent’s responses was not present when this Court originally determined that this claim should be dismissed. After reviewing that information and relevant case law, it is the opinion of this Court that the decision should be reversed for the following reasons.

Respondent asserts that, as the Court of Claims rules set out what fees shall apply for filing claims and what constitutes the filing procedure, payment of fees is a condition precedent that Claimant must meet before a claim can be deemed as filed. This is contrary to the Fourth District Appellate Court decision in Hanks v. Floyd (1977), 51 Ill. App. 3d 1048, 367 N.E.2d 483, wherein the court determined that a complaint for personal injuries was timely filed within the statute of limitations even though the filing fee had not been paid on the filing date and, when the filing fee arrived two days later and the clerk himself discovered that the fee had not been paid until that date, the clerk changed the file stamp date to reflect the date of fee payment. In reaching its decision the court stated at 51 Ill. App. 3d at 1050, 367 N.E.2d at 484:

“Although by statute the fees of the clerk of the circuit court shall be paid in advance’ (Ill. Rev. Stat. 1973, ch. 53, par. 31), this language has been interpreted to be merely directory, not mandatory. In Elies v. Industrial Comm. (1940), 375 Ill. 107, 30 N.E.2d 615, the plaintiff sought to appeal a decision of the Industrial Commission to the circuit court. However, the plaintiff did not pay the filing fee. The clerk of the circuit court filed the action even though a statute provided that fees of the clerk ‘shall be paid in advance.’ The supreme court held that the statute was merely directory to the clerk and that the failure to pay the filing fee did not deprive the circuit court of jurisdiction.”

The situation in the claim at bar is similar to that presented in Ayala v. Gold (1988), 176 Ill. App. 3d 1091, 531 N.E.2d 1040. In Ayala plaintiff was injured on January 28, 1985. Plaintiffs attorney sent a complaint with a cover letter dated December 30, 1986, addressed to the “Clerk of Kane County, Geneva, Illinois.” The letter indicated the complaint was being sent “along with our check in the sum of $52.00” and requested the clerk to forward stamped copies and forms to issue summons. It was undisputed that the circuit clerk received the letter and complaint and stamped the complaint as filed on January 5,1987, and assigned the complaint a case number. It further appeared that sometime after the initial filing of the complaint an unknown employee of the circuit clerks office crossed out the January 5, 1987, filing date and re-stamped the complaint as having been filed on March 25, 1987, at 2:51 p.m. and a different case number was assigned by the circuit clerk.

At the hearing of the defendants motion to dismiss, the circuit clerk testified that a courtesy policy had been developed to notify attorneys who filed complaints by mail if the filing fees were not enclosed. A telephone call was made to the attorney the day a complaint was received advising of that fact and that paperwork would be held five days for submission of the fee. The circuit clerk further testified it was the clerks policy to file stamp a complaint when received and, if payment was not received, to scratch out or otherwise remove the filing notation from the complaint.

A deputy circuit clerk testified he had received the cash receipt records of the clerks office and could not locate any record of money received from plaintiff for filing on January 5, 1987, but did find a copy of a check corresponding to the revised filing date of March 25, 1987. Another deputy circuit clerk testified that her handwriting and signature appeared on the front of the cover letter sent by plaintiffs attorney when the complaint was mailed to the clerks office. Her signature followed a notation on the letter regarding service of summons, but no mention was made of a missing filing fee. She further testified she had no personal recollection concerning whether a filing fee was included with the complaint.

An employee of the circuit clerks office testified she entered plaintiffs complaint in the computer on January 9, 1987, but deleted it seven minutes later. She further testified she had no independent recollection of the matter, or of advising plaintiffs attorney of the missing filing fee; but her initials and terminal number appeared on the computer printout.

The trial court ruled that receipt of the filing fee by the circuit clerk was a condition precedent to the filing of a complaint and since plaintiff offered no direct evidence that a check had been sent with the complaint it was not taken into custody of the circuit clerk until the March 25, 1987, filing date which was after the limitations period had run.

The Second District Appellate Court, citing Hanks, supra, reversed the trial courts decision. In so doing the court stated at 176 Ill. App. 3d at 1694, N.E.2d at 1042, 1043:

"Our supreme court has considered the circumstances which will be regarded as tlie filing of a document, as follows:
‘[T]o file a paper in a cause it must be placed in the hands and under the control of the clerks. It must pass into his exclusive custody and remain within his power. s * * [T]he purpose and object is to render it a part of the records of his office, and that object must be communicated to him in some manner capable of being understood.’ Brelsford v. Community High School District No. 36 (1927), 328 Ill. 27, 34, 159 N.E. 237, 240. Hamilton v. Beardslee (1869), 51 Ill. 478, 480.
The file mark on a paper constitutes prima facie evidence that it was delivered to tlie proper officer for filing on the date indicated by the file mark. (Gage v. Nichols (1890), 135 Ill. 128, 133, 25 N.E. 672, 673; see 1 C. Nichols, Illinois Civil Practice §380 (1984).) After the clerk has put his mark on it and docketed tlie case, the papers in a cause become the files of the court and cannot be withdrawn without leave of the court. (Coles v. Terrell (1896), 162 Ill. 167, 169-70, 44 N.E. 391, 392.) More recently, this court has stated that the actual filing date of a petition (like a complaint) is when it is received and stamped by the circuit clerk’s office. Wilkins v. Dellenback (1986), 149 Ill. App. 3d 549, 553-54, 102 Ill. Dec. 799, 802-03, 500 N.E.2d 692, 695-96, appeal denied (1987), 113 Ill. 2d 586, 106 Ill. Dec. 57, 505 N.E.2d 363."

The court further stated at 176 Ill. App. 3d at 1095, 531 N.E.2d at 1043:

"We point out that the clerk may refuse to accept a document unless the fee is paid (Ill. Rev. Stat. 1987, ch. 25, par. 27.1); however, where the clerk has accepted a document for filing without the fee, file stamps it and assigns a docket number, as occurred in the present case, the circuit court nevertheless acquires jurisdiction of the case. Where the fee has not been paid, it may properly order the fee paid before proceeding with the matter, but the harsh remedy of dismissal with prejudice should be considered only upon plaintiffs noncompliance with an order for payment. See generally Ganja v. Johnson (1972), 6 Ill. App. 3d 701, 286 N.E.2d 775, 777.”

Based on the foregoing, we find that the complaint in the claim at bar was filed on March 25, 1986, the date Claimants’ attorney in person presented the complaint to an employee of the Office of the Clerk of the Court of Claims and the employee accepted the complaint, file stamped it as being received on March 25, 1986, and returned a file stamped copy to the attorney even though payment of the filing fee may not have been tendered at the time. It is on that date that the complaint came into the exclusive custody of the Office of the Clerk of the Court of Claims and became a part of its records. We further find that since Claimants’ complaint was filed on March 25, 1986, it was timely filed within the two year period required by section 22(f) (now section 22(g)) of the Court of Claims Act.

Wherefore, it is hereby ordered that this Court’s order dismissing this claim dated July 3, 1986, be vacated and that the cause be assigned to a Commissioner for further proceedings.

ORDER

Frederick, J.

This cause comes before the Court on the Court’s own motion, and the Court having reviewed the court file, and the Court being fully advised in the premises, Wherefore, the Court finds:

1. That the Court has reviewed this case in the Court’s continuing review of all cases that were filed prior to 1990.

2. That this claim was filed on April 2,1986.

3. That there has been no activity in the case noted on the docket sheet since November 29,1990.

4. That there have been no pleadings filed and no hearings held in this case in more than five years.

5. That this Court will not hold a case open indefinitely.

6. That the Court may dismiss a case for want of prosecution where the Court finds a Claimant has failed to make a good faith effort to prosecute the claim.

7. That Claimants herein have failed to make a good faith effort to prosecute their claim where there has been no activity in the case for more than five years.

Therefore, it is ordered that this claim is dismissed for want of prosecution.


text:
    (No. 86-CC-3577
    Patrick Powell, Administrator of the Estate of Michael Powell, Deceased, and Patrick L. Powell, Jean M. Powell, Thomas P. Powell, Nancy J. Powell, James L. Powell, and William A. Powell, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1996.

    O’Callaghan & Waller, for Claimants.
    Jim Ryan, Attorney General (Diann K. Marsalek, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This is a claim arising under section 8 of the Court of Claims Act, 705 ILCS 505/8. It is a wrongful death claim involving the death of Michael Powell.

On June 29, 1985, Michael Powell, 19 years of age, was a passenger in a motor vehicle being operated by Darrell L. Holmes, age 21 years. The car was proceeding in a northbound direction upon Illinois Route 78 approximately five miles north of Mt. Carroll, Illinois. Michael Powell was last seen by his father, Patrick Powell, on June 28, 1985, when he left home to assist Darrell L. Holmes in the building of a garage on a farm in Stockton, Illinois. Thomas Holmes, father of Darrell L. Holmes, testified at the coroner’s inquest that both Darrell L. Holmes and Michael Powell had been pouring a foundation for a garage on the Holmes’ farm, two miles north of the accident scene. The boys had changed clothes and left the farm at approximately 9:30 p.m. on the night of June 28, 1985, to go to either Thompson, Illinois, or Clinton, Illinois. The boys never returned.

The Holmes’ vehicle was found on June 29, 1985, at 3:10 p.m. by Deputy Sheriff Mike Weber. Both Holmes and Powell were dead. Rigor mortis had already set in for both occupants.

Deputy Weber testified that the vehicle left the roadway prior to the guard rail at the curve on Route 78. The time of the accident was unknown, but the motor of the vehicle was cold when he discovered it. The weather had been warm and sunny. The car traveled straight off the curve, a distance on the shoulder of the roadway, down an incline, and into trees which had broken down over the car. The car landed approximately 12 feet from the roadway, which included a six-foot earth shoulder. There was one faint scuff mark on the edge of the roadway, but not enough to obtain a drag factor to indicate speed. Photographs were taken of the scene as the rescue squad arrived. There were no eyewitnesses. No one knew anything about the activities of Holmes or Powell immediately prior to the accident.

The boys were pronounced dead at the scene by the coroner. Blood samples were drawn on both decedents. Blood levels indicated alcohol in both Holmes and Powell.

Death was instantaneous for both Holmes and Powell. Holmes died of a massive skull fracture, and Powell died of massive leg, internal, chest, and stomach injuries. The coroner’s jury determined that both deaths were accidental but recommended that the guard rail be extended on Route 78 at the scene of the accident.

The Powells instituted a lawsuit against the estate of Darrell L. Holmes. This lawsuit was settled for $50,000, the amount of the available insurance coverage. The Pow-ells had exhausted all other remedies prior to filing this lawsuit.

The Claimants herein, Patrick Powell and Jean Powell, the parents, brothers, Thomas, James, and William Powell, and a sister, Nancy Powell, proceeded with this claim for wrongful death as a result of alleged negligence on the part of the Department of Transportation.

The Powells produced testimony from Robert Lippman, a civil engineer and an expert in accident reconstruction. Lippman concluded that the approximate cause of the accident was a surprise factor from the lack of positive guidance and delineation on the roadway. Lippman compared five curves on the roadway in question. This included the curve at the accident site and the four preceding curves. Lippman identified the accident site as curve #5 and testified that curve #3 was very similar. He noted that curves #3 and #5 had the same radius and concluded that they should have had the same speed limits and advisory signs.

Lippman stated that curve #3 had a speed limit of 40 miles per hour as compared to curve #5s speed limit of 45 miles per hour. Curve #3 had 13 chevrons, which are black and yellow signs placed at the outer edge of the curve. Curve #5 had no delineators. Lippman therefore concluded that the driver had a reasonable expectation of consistency in the roadway. He concluded that a lack of positive guidance and increased advisory speed resulted in an unsafe roadway that created an element of surprise. This caused the driver to miss the curve.

Lippman further testified that the tree struck by the vehicle was approximately 12 feet from the roadway. He testified that the State should have removed the tree, thereby providing an area of safe recovery of at least 18 to 30 feet. Lippman concluded that the physical evidence indicated that the driver was not impaired at the time of the accident. He testified that the physical evidence of crossed tire tracks indicated that the driver was attempting to return to the roadway after missing the curve. Lippman concluded that the drivers actions were entirely consistent with normal reaction times. Lippman testified that he did not reach a conclusion as to the speed the vehicle was traveling prior to the accident. He disputed the conclusion of the Respondents expert that the vehicle was traveling at 89 miles per hour. Lippman stated that this conclusion was not supported by the evidence, and that a vehicle traveling at that speed would have flipped over and knocked down the tree it struck.

The Respondent produced evidence from a reconstruction consultant. The consultant, Terry Shanafelt, a former State trooper, concluded that the subject vehicle was traveling at 89 miles per hour when the brakes were applied. He further concluded that the vehicle began to rotate counterclockwise and continued to skid an additional 84 feet down the shoulder. Shanafelts conclusion was that, at the end of the skid, the vehicles right tires dug into the turf and the vehicle vaulted and became airborne for 53 feet until the right portion of the drivers door impacted the tree in question. Shanafelt believed the vehicle was traveling about 71 miles per hour at the time of the impact.

Shanafelt further noted that the roadway had the proper signs. He also concluded that there was no evidence of roadway defect and no documented history of accidents in the area for five years prior to the incident. He noted the drivers excessive speed and blood alcohol level. Shanafelt concluded that the accident was the result of the drivers negligence.

The Respondent called Ronald Kucharik, chief toxicologist for the Illinois State Police Lab Division. In 1985, he was working at Great Lakes Forensic Laboratory doing contract work for the State of Illinois. Kucharik personally performed an analysis of the blood samples of Holmes and Powell. He indicated that the test demonstrated that Darrell L. Holmes had a blood alcohol concentration of 0.152%. The legal limit for operating a motor vehicle was 0.10%.

The Respondent called John Wegmeyer, a studies and plans engineer for the Illinois Department of Transportation. Mr. Wegmeyer testified that he initiated an investigation of the accident site. He determined that the advisory speed at curve #5 northbound was 45 miles per hour, but the advisory speed at curve #5 southbound was 40 miles per hour. He determined the advisory speed at curve #3, as indicated earlier, to be 40 miles per hour in each direction. His results confirmed the findings of a study of advisory speeds done on those curves in 1980. Wegmeyer testified that curves #3 and #5 are similar and that they have the same radius or degree of curvature. They are also significantly different because drey have a different length and depth of the angle. He stated that the differences between the curves accounts for the five mile-per-hour difference between the posted advisory speed.

Wegmeyer also concluded that all the advance warning signs at the curve were properly placed, met all requirements, and were consistent with the other signing along the entire route. He testified that there was sufficient positive guidance in advance of curve #5 and no apparent necessity to extend the guard rail at that point. He testified that the tree struck by the vehicle was not in the clear zone.

One allegation of purported negligence by the State was a failure to remove trees adjacent to the highway. The Claimants allege this failed to create a safe recovery area as required. Mr. Wegmeyers testimony established that the applicable standard at the time of the accident required a ten-foot clearance zone at the location of the accident. The current standard is 18 feet. Wegmeyer clearly testified that the tree was not in the clear zone which existed at the time of the accident.

This Court concluded in Wilson v. State (1989), 41 Ill. Ct. Cl. 50, 55, that the State had no legal duty to remove a tree that was outside the ten-foot clearance zone. This Court held as follows:

“The State was within compliance of recommended standards. There is no duty upon the State to clear every possible source of injury from areas in the more remote proximity of the roadway. A legal duly requires more than the possibility of occurrence, and the State, like any other person is charged with such a duty only when harm is legally foreseeable. The issues of ‘foreseeability’ and ‘duty’ involve a myriad of factors, including the magnitude of the risk involved, the burden of requiring the State to guard against the risk, and consequences of placing such a burden on the State * * * The fact that removal occurred after the accident, for unknown reasons, is not evidence of negligence.” Wilson, at 55-56.

In the present case, there was no evidence presented that the tree was inside the recommended clearance zone. For the reasons stated, this Court concludes that the Respondent did not have a legal duty to remove the tree in question.

The Claimants also contend that the Respondent was negligent for failing to mark and maintain the roadway at the scene of the accident. This Court has consistently held that the State of Illinois is chargeable only with designing and maintaining roads in a reasonably safe condition for the purpose for which they are intended. Claimants must, in order to prevail, prove by a preponderance of the evidence that the Respondent breached its duty and that the breach proximately caused the injuries to the Claimant. Calvert and Williams v. State (1985), 38 Ill. Ct. Cl. 104; Louis v. State (1983), 35 Ill. Ct. Cl. 741.

In Slagel v. State (1990), 42 Ill. Ct. Cl. 28, 32, the Claimant alleged that a vehicle accident was proximately caused by a missing sign which would have warned the driver of an approaching curve. The Court found that roadway was hilly and contained many curves. Other warnings or markings existed preceding the accident site. The Court found that the absence of the sign in question would not have created a hazard for a driver exercising due care and caution. Therefore, the absence of the sign was not the proximate cause of the accident. Slagel, at 32.

In this case, signs were appropriate and complied with mandatory sign provisions. It appears clear that the driver could have driven through the curve without incident if he had exercised due care, was not under the influence of alcohol, and not driving at an excessive speed. For the reasons stated, we have concluded that the Claimants have failed to meet their burden of proof that the State was negligent in this case. We therefore deny this claim.


author: Raucci, J. Raucci, J.

text:
    (No. 87-CC-0070
    Edward Cooper, Claimant, v. The State of Illinois and Illinois Department of Corrections, Respondents.

      Opinion filed July 3, 1995.

      Order on petition for rehearing filed February 7, 1996.

    Steinberg, Polacek & Goodman (Maricarol Lacy, of counsel), for Claimant.
    Jim Ryan, Attorney General (Richard J. Krakowski, Assistant Attorney General, of counsel), for Respondents.
   OPINION

Raucci, J.

This claim is brought by Edward Cooper, former inmate of Vandalia Correctional Institution, for injuries he sustained on July 17, 1984, while performing his work in the prison kitchen. A hearing was held before the Commissioner.

The facts adduced at trial are as follows:

Claimant, Edward Cooper, appeared and testified that, in July, 1984, he was an inmate at Vandalia Correctional Center. On the evening of July 17, 1984, at approximately 10:45 p.m., Claimant reported to the kitchen for his work assignment as head cook. The Claimant described a large kitchen area and dining room with an adjacent dish-washing room. The dish-washing room was approximately 12 feet by 18 feet.

As the inmates evening work began, other members of the kitchen crew removed the left-over potatoes and gravy from the steam table and brought the trays into the dish-washing area. At the same time Claimant was engaged in the preparation of the breakfast meal.

Some time later, as Claimant was preparing to put out tire breakfast food, Claimant removed two pans from the steam table.

He described the pans as three feet wide and two feet high. He stacked the pans one inside the other and carried them in front of his body to the dish-washing room. The Claimants actions were part of his regularly assigned duties.

As Claimant entered the dish-washing room, he was unable to see the area directly in front of him because the view was blocked by the pans. Claimant did, however, observe that the floor to both his left and right was clean. Claimant approached the slop sink and slipped and fell in what he described as greasy, soapy water with potatoes in it.

Claimant testified that he injured his right biceps and the little and ring fingers on his left hand. Claimant was transported to the hospital infirmary where he was treated with physical therapy and a splint was applied to his finger. Claimant testified that the supervisor on duty the evening of the incident was Eddie Dean, a member of the Illinois Department of Corrections personnel. Claimant stated that during all relevant times, Dean was seated at a table at the far end of the dining room from the dish-washing room. He further stated that, from where the supervisor was seated, it would have been impossible for Dean to see into the dish-washing room.

Approximately two or three weeks following the incident, Claimant returned to work on “light duty.” He was restricted from lifting any pots or pans.

Following his release from Vandalia Prison, he was examined and treated by Dr. Treister.

Claimant testified that he still has limited ability to use his right arm and experiences pain. He further testified that he cannot close his left hand all the way and he experiences discomfort in his hand when he tries to use it.

Eddie Dean was called to testify. He stated that he was employed as a food service manager at Vandalia Prison on the date of the incident. He testified that his responsibilities included inspection of the kitchen area and, in the event he discovered a mess, he would instruct an inmate to clean it up. He also testified that, in the normal course of business, the food service manager typically inspected the work areas every 30 minutes and a failure to inspect that frequently would be a violation of his job responsibilities.

Dean testified that he did not have any recollection of whether or not he was working at the time of the incident and offered no testimony in regard to the specific details of the incident.

Despite Deans inability to recall the incident, the State admitted that he was the food service manager at the time of the Claimants accident and that he was the party responsible for inspecting and removing any dangerous conditions in the area of the prison kitchen.

The parties stipulated to the use of the evidence deposition of Galen Smith. Smith testified that, on the date of the incident, he was employed as a kitchen supervisor at Vandalia Prison. He confirmed that the kitchen supervisor was responsible for makng a regular visual inspection of the kitchen area at least every 30 minutes and that it was the sole and exclusive responsibility of the ktchen supervisor to correct any dangerous condition he discovered.

Smith testified that he had no recollection of the specifics of the incident and did not recall whether or not he was working at the time.

The parties also stipulated to the use of the evidence deposition of orthopedic surgeon Dr. Michael Treister, M.D., dated July 7, 1994. Dr. Treister’s examination of the Claimant on May 23, 1985, revealed a ruptured right biceps tendon which resulted in a loss of right arm strength and a 50 percent loss of range of motion, in addition to a cosmetic deformity, a small concavity or hole in the biceps. The doctor described the biceps injury as causing significant loss in moderate to heavy lifting and also as causing limitations in holding utensils and performing personal hygienic functions. The injury was classified by the doctor as painful and permanent.

The doctor also observed a fracture to the left small finger and a dislocation of the joint in the left ring finger. The finger injuries have resulted in limitation of his ability to close his hand completely. The doctor described nuisance and stiffness.

The doctor testified that he believed all three of the injuries were causally related to the Claimants fall on July 17, 1984. He further determined that there is no available treatment for any of the injuries. Claimant’s medical charges totaled $166.

The Court has repeatedly held that the Department of Corrections owes a duty to inmates of its penal institutions to provide them with safe conditions under which to perform their assigned work. (Hammer v. State (1987), 40 Ill. Ct. Cl. 173, 175; Reddock v. State (1978), 32 Ill. Ct. Cl. 611.) The State also has a duty to supervise the work of inmates. Lee v. State (1992), 44 Ill. Ct. Cl. 246, 249.

On the evening of the incident, the Claimant was acting within the scope of normal procedure when he carried the pans from the steam table into the dish-washing area.

The testimony of correction employees Dean and Smith established that the kitchen supervisor is required to visually inspect the work areas at least eveiy 30 minutes. The Claimants undisputed testimony was that Dean was the kitchen supervisor on the date of the incident. Claimant stated that Dean sat at a table in the dining room from approximately 10:45 p.m. until the time of the incident, approximately one to two hours later, without making any inspections of the dish-washing areas. Claimant further testified that it was not possible to see into the dish-washing area from Dean’s position in the dining room.

The Respondent stipulated that Dean was the kitchen supervisor at the time of the incident and that he was the person responsible for inspecting and directing clean up of any of the kitchen staff’s work areas. Dean testified that he had no recollection of the incident. The respondent did not offer any testimony or evidence to establish that any inspections of the dish-washing area had been made.

The Respondents’ failure to visually inspect and provide for the clean up of the dish-washing room floor clearly establishes a breach of their duty to Claimant to provide a safe workplace.

The Claimant’s undisputed testimony further established that the spillage from the dish-washing staff was the cause of his fall and that fall was the proximate cause of his injuries.

The testimony of both Claimant and Dr. Treister established that Claimant suffered injury to his right arm and his left hand’s small and ring fingers. The injury to his right arm has resulted in permanent loss of strength, limited his lifting ability, and caused a physical deformity in the form of a small hole in his biceps. Claimants left hand was in a splint for several weeks. The injury has limited the strength in his hand and resulted in his inability to make a fist. Dr. Treister testified that Claimants injuries could not be treated and are permanent.

The facts, however, do not support Claimants request for an award in the amount of $100,000.

The Claimant received medical bills in the amount of $166. Considering the Claimants pain and suffering and the permanency of the injury, Claimant should be awarded $6,000 in addition to his medical expenses for a total award of $6,166.

It is therefore ordered, adjudged and decreed that Claimant is awarded $6,166 in full and complete satisfaction of this claim.

ORDER

Raucci, J.

This cause coming to be heard on the Respondents petition for rehearing, the Court being fully advised in the premises, finds:

1. On July 3, 1995, we entered an opinion awarding Claimant $6,166.

2. On August 22, 1995, Respondents petition for rehearing was filed.

3. Our Rule 220 (74 Ill. Adm. Code 790.220) provides that a petition for rehearing shall be filed within 30 days of the filing of the opinion.

4. The Respondents’ petition for rehearing is not timely filed.

ORDERED: The Respondents’ petition for rehearing is denied.


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

text:
    (No. 87-CC-0495
    Jane Doe, a minor by her Mother and Next Friend, Joan Doe, and Joan Doe, Individually, Claimants, v. The State of Illinois, Respondent.

      Order filed December 19, 1988.

      Order filed May 20, 1996.

    Mary G. Gorski, for Claimants.
    Neil F. Hartigan and Jim Ryan, Attorneys General (Guy Studach, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause comes on to be heard on the Respondent’s motion to dismiss and the Claimant’s response thereto, due notice having been given, and the Court being advised:

On May 19, 1986, a notice of intent to commence a personal injury action was filed on behalf of Jane Doe, a minor. The notice stated that the incident giving rise to the action occurred May 18, 1985. Also on May 19, 1986, a similar notice was filed for a cause of action on behalf of Jane Doe’s mother, individually. The mother’s actual name was stated on the notice. A third notice, also on behalf of the mother, was filed the same day but stated that the incident occurred a day earlier, May 17, 1985. On May 21, 1986, another notice was filed on behalf of Jane Doe wherein the incident giving rise to the potential claim was alleged to have occurred on the May 17, 1985 date. Also on May 21, 1986 another notice of intent on behalf of the mother was filed, giving May 18, 1985 as the date of the incident. Then, on June 5, 1986, four amended notices of intent were filed, two for each party, alleging July 17 and July 18, 1985 as the dates of the occurrences. On September 25, 1986, a four-count complaint was filed with two counts for Jane Doe and two counts for her mother, alleging July 17 and 18, 1985, as the dates of the incidents giving rise to the claims. In none of the notices or the complaint was Jane Doe’s real name provided. In all of the notices, Jane Doe’s mother’s real name was provided and she was identified as the mother. In the complaint, the mother was named Jane Doe and identified as the mother, but her real name was not stated.

On December 8, 1986, the Respondent moved for dismissal of the complaint on several grounds, all of which pertain to inadequate information in the notices and the complaint. First, Respondent alleges that the notices are not in compliance with section 22 — 1 of the Court of Claims Act, Ill. Rev. Stat., ch. 37, par. 439.22 — 1, in that they fail to state the name and residence of the person injured, the name of the person to whom the cause of action accrued, and the place or location where the incident giving rise to the claim occurred, and therefore, the claim should be dismissed pursuant to section 22 of the Act.

As for Jane Doe, this Court has held that the time for filing notices of intent for minors does not begin to run until majority is reached. Woodward v. State (opinion filed January 21, 1987), No. 83-CC-1438. The filing of a complaint within the time required for filing a notice has been held to obviate the need for filing a notice. (Johnson v. State (Opinion filed March 26, 1987), No. 87-CC-0105; Crosier v. State (Opinion filed February 17, 1988), No. 87-CC-2187.) One of the primary reasons for the holding in the latter two cases is that once a complaint is filed, all the information required to be stated in the notice, and more, is discoverable by the opposing party. The record does not indicate that the Respondent has undertaken any discovery to date. The minor Claimant was stated to be under the age of 13 years in 1987. For the reasons stated above, we are not going to strike her claim, and grant her leave to refile to cure the alleged defects complained of in the notice.

The mothers situation is more difficult. Her notice contained her actual name, but as pointed out by the Respondent, neither her residence nor location of where the incident giving rise to the claim occurred was stated. The amended notice provided a post office box number in a city and state, but that is not a residence as is required by the Act. Only the county and state were provided to indicate where the incident occurred. Claims have been dismissed for inaccurate or vague descriptions in notices of where incidents have occurred. (Katrein and McKnight v. State (1982), 35 Ill. Ct. Cl. 340; Seaton v. State (1966), 25 Ill. Ct. Cl. 291.) The rationale for dismissal for such reasons is the inability of the Respondent to “promptly and intelligently investigate the claim and prepare a defense thereto, and to protect governmental bodies from unfounded and unjust claims.” Byrne v. State (1980), 34 Ill. Ct. Cl. 248.

However, this Court has also held that substantial compliance with the notice provision as to content will suffice to meet the statutory requirement. (Bodine v. State (1983), 35 Ill. Ct. Cl. 777.) The failure to include certain details will not necessarily vitiate the notice. The sufficiency of the notice is an issue of fact. The absence of location of where the incident occurred is a serious deficiency. It would likely cause dismissal in a highway defect claim. The issue here is whether there was other information contained in the notice which would be sufficient to enable the Respondent to investigate the claim. We find that there was. The description of the incident was as follows:

“4. The injuries were incurred and continue as a result of criminal sexual assault on claimants minor daughter, Jane Doe, by Robert E. Woods who, on or about (May 17 and 18,1985) was an escapee from the Adolph Myer Mental Health Center and on (May 17 and 18,1985) sexually assaulted Jane Doe, claimants minor daughter.”

Elsewhere in the notice, it was stated that the incidents occurred in Champaign County, Illinois. With the name of the mother, the dates on which the incidents occurred, the name of the escapee and perpetrator, the name of the state institution from which he escaped, the county in which the incident occurred and, in particular, the specific nature of the incident, we think that the Respondent had sufficient information to investigate the incident and prepare its defense.

The Respondents next objection related to verification of the complaint. Section 11 of the Court of Claims Act and rules 4 and 5A of the Rules of the Court of Claims require that complaints shall be verified. Respondent points out that the complaint filed herein was signed “Joan Doe” which is not a true signature and argues that thus the complaint is not properly verified. In her response to the motion, Claimant points out that section 11 of the Act allows for verification by an attorney and that her attorney also signed each count of the complaint. However, upon review of the complaint we find no verification at all. A mere signature is not a verification. Claimants are granted leave to amend the complaint by interlineation by the filing of a verification within 21 days of the date of this order.

Respondent also urges dismissal on the grounds that the complaint does not properly identify persons who are owners of, or who are interested in, the claim as required by rule 5A.4. As pleaded, the complaint stated that Jane and Joan Doe are those persons. While the Court does not know at this time who Jane Doe is, we think that the parties have been sufficiently identified to meet the pleading requirements when the record is reviewed as a whole.

Respondents final grounds for dismissal raised are the lack of a bill of particulars as for the damages, and inadequate description of damages in the body of the complaint. A bill of particulars is required by rules 5.A.9 and 5.R. In response, Claimant argues:

“1. ° * “ This is not a contract case or a property damage case. The greater part of the injuries suffered by the Claimants herein are psychic injuries
2. It is reasonable and proper for both Claimants to allege damages arising out of both medical expenses and mental injuries. In any case sounding in tort a claimant is entitled to damages for past and future medical expenses, and past and future pain and suffering. It is reasonable to believe that both Claimants may have future medical expenses arising out of the negligence of the Respondents, including, but not limited to, the cost of future psychiatric treatment.”

We understand the Claimants’ inability to state with great specificity every item of damages. We do however find that Respondent is at least entitled to that information required to be stated in personal injury cases by rule 5R.2. Claimant should also provide a statement containing a brief description outlining special damages incurred to date to the best of her ability. Claimant is granted leave to file such information in a bill of particulars within 45 days of the date of this order. Claimant is also directed to comply with any discovery requests which may be forthcoming relating to details of the special damages.

At this point we think a few comments on court policy are appropriate. We understand that the incident giving rise to this claim is of a highly sensitive and personal nature and that protecting the identity of the Claimants was the reason for using the fictitious names. We have, in the past, directed the clerk’s office to substitute fictitious names throughout the record in similar cases after the cases have been decided. (Jane and John Doe v. State (1986), 39 Ill. Ct. Cl. 12.) The potential for problems with the approach taken by the Claimants in this case is obvious and our decision today is not to be construed as condoning it. Our holding today is limited to the facts of this specific case. We do think a sufficient amount of information was provided the Respondent to investigate. Although it was not relevant to this decision we do note that Claimant’s counsel has represented to the Court that a proposal to Respondent’s counsel was made that pseudonyms be used only in court documents which are a matter of public record and did offer, after the motion to dismiss was filed, to disclose to Respondent’s counsel the actual names of the Claimants, together with any medical records and other information, on the condition that confidentiality be preserved. This should have been done within the time for filing the notice. In the future it is suggested that leave of the Court be sought to proceed under anonymity. Leave is granted in this case to use pseudonyms in matters of public record, but we will entertain any subsequent motions from the Respondent should problems develop.

Accordingly, it is hereby ordered that the motion to dismiss is denied consistent with the above. It is further ordered that this claim is put on general continuance subject to rule 7 pending the outcome of the workers compensation claim.

ORDER

JANN, J.

This cause comes on to be heard on the joint stipulation of the parties for dismissal with prejudice and joint stipulation for settlement. The Court being fully advised in the premises finds:

1. Counts III, IV, IX, X, XII and XIII of the complaint filed by Joan Doe, are hereby dismissed with prejudice.

2. Claimant Jane Doe has agreed to a settlement with Respondents in the amount of $50,000 in full and final satisfaction of the claims herein. Claimant has reached legal majority during the pendency of this claim. Both parties have waived hearing, further taking of evidence and briefs.

3. The parties have stipulated and signed releases for an award in the amount of $50,000 to Jane Doe.

4. Although the Court of Claims is not bound by the parties’ joint stipulation (See Moore v. State (1987), 40 Ill. Ct. Cl. 212), we find the record herein supports an award of $50,000 to Claimant Jane Doe and the joint stipulation for settlement filed February 28, 1996, is hereby adopted by the Court.

Therefore, it is ordered: Claimant Jane Doe is awarded $50,000.


author: Epstein, J.

text:
    (No. 87-CC-1753
    Donald E. Willis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 16, 1996.

    John R. LeComte, for Claimant.
    Jim Ryan, Attorney General (Lino Menconi, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This personal injury claim arises out of a vehicular accident that occurred January 23, 1985, two miles south of Milledgeville, Illinois on State Route 88, a hilly two-lane road.

The accident occurred when the Claimant skidded his 1975 Volkswagen Rabbit into the rear of a State snowplow which was blocking or partly blocking the roadway while engaged, appropriately enough, in snowplowing operations — “crumbing” a snowbank away from the roadway— but whose State crew, inappropriately, was not utilizing the traffic warning signs or methods mandated by the operations manual of the Department of Transportation (“IDOT”), their employer, as well as by common sense.

The Claimant had been driving south on Route 88 for some time and was aware, or constructively aware, of ongoing snowplowing operations in the area, as he had admittedly passed another slow-moving State snowplow on the same road approximately 15 miles before his forceful encounter (and more than 15 minutes earlier according to his claimed rate of speed). Claimant acknowledges that light-blowing snow was prevalent and that approximately 1/4 inch of accumulated, but dry, snow was on the roadway. He insists, however, that the road was completely dry as he traveled at the legal 50 m.p.h. speed limit.

Claimant first saw the offending snowplow (which was with an endloader that was also blocking part of the road) as he came over a rise 300 feet (i.e. 100 yards or one football field length) before striking it. Claimant braked his Rabbit but was unable to stop on the dry but snowy and hilly road, which he attributes to snow placed in the immediate vicinity of the State vehicles by their plowing efforts. Claimant acknowledged that upon seeing the snowplow (and endloader) in the roadway, he forcefully hit the brakes, rather than pumping them. We take notice that Claimant was driving a vehicle which was built well before ABS brakes were available on automobiles in this country.

Claimant filed his negligence complaint against IDOT in this court in 1987, and the cause was tried before former Commissioner Turner in August of 1992. The parties ultimately submitted post-trial briefs, which largely frame the issues for our determination.

The sole disputed issues in this case are the negligence of IDOT, the negligence of the Claimant and, if any, their comparative negligence and the allocation of causation and fault for the accident. The Respondent has not disputed the claimed damages.

As this Court has held, claims against the State adjudicated in this Court that arise after our supreme courts decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, are governed by the comparative negligence doctrine adopted in that case. (Peterson v. State of Illinois (1984), 37 Ill. Ct. Cl. 104, 108-109.) However, for cases arising after the November 25, 1986 effective date of the statutory modification of Illinois’ comparative negligence doctrine, codified at section 2 — 1116 of the Code of Civil Procedure, the modified comparative fault doctrine of the statute applies. As this case arose post-Alois and presec. 2 — 1116 (since this 1985 accident occurred after June 8, 1981, and before November 25, 1986), it is governed by the pure Alois form of comparative negligence, as the modifying statute is not retroactively applicable.

In this case, it is apparent and hardly disputable that the IDOT snowplow crew was negligent in failing to give due and proper warning of their dangerous presence in the roadway. It is undisputed here that the IDOT crew failed to comport with the warning requirements set forth in the IDOT Worksite Protection Manual, which is a relevant, and here dispositive, standard of protection for the traveling public to meet the State’s duty to give adequate warning of dangerous conditions. (See, Hout v. State (1966), 25 Ill. Ct. Cl. 301; Smith v. State (1990), 42 Ill. Ct. Cl. 19.) Claimant has cited, and we find persuasive, the recent case of Wade v. City of Chicago Heights (1991), 216 Ill. App. 3d 418, 159 Ill. Dec. 228, in which the court approved the submission of a jury instruction containing language from an IDOT regulation relating to warnings to be given to motorists approaching work sites on roadways.

The more difficult issue is assigning a degree of comparative negligence to the Claimant. Despite Claimant’s contention that his driving on the day in question was impeccable, we are convinced that he was significantly negligent in his driving and was a substantially contributing cause of the ultimate accident. As the Respondent cogently argues, Claimant’s admission that he forcefully hit the brakes rather than pumping them, while cresting a hill at 50 m.p.h. is itself an admission of less than competent driving.

Moreover, given the conditions of (1) a winter day, (2) blowing snow present, (3) accumulated snow on the roadway present, (4) snowdrifts along the way that can, and did, sometimes extend onto the roadway, and (5) snowplowing operations ongoing that day on that road, all of which were observed by, and known to, the Claimant, we are compelled to conclude that driving on that two-lane, undulating road at the 50 m.p.h. speed limit that day was neither prudent nor safe, and was negligent. Snow on a roadway, however dry when left alone, does not remain dry and does reduce traction when traversed by weight-bearing tires, particularly when, as here, they are put into a skid. Snow on a roadway reduces traction and lengthens stopping distance. Claimant is presumed and obliged to know this.

We have reviewed the three negligence factors in evidence that have been shown to have contributed to this accident — the State’s lack of warning, the Claimant’s excessive speed for the conditions, and his improper braking technique — and are constrained to conclude that Claimants negligent driving was a dominant cause of the accident. The Court has concluded that a 60% comparative fault assigned to the Claimant’s negligence in this cause is a fair and just measure.

The Claimant has shown actual out-of-pocket damages of $11,448, which consist of $1,000 of property damage to his Rabbit and $10,448 in medical, hospital, ambulance and drug expenses incurred as a result of his injuries. Claimant also demands $30,000 as compensatory damages for his permanent knee and back injuries, and $30,000 for pain and suffering. The Respondent has not contested these demands, and has not substantially disputed Claimant’s evidence of permanent damage or pain and suffering. We are not inclined, in this circumstance, to give strict scrutiny of these claim amounts on our own motion. However, noting that we have concluded that Claimant was the predominant cause of this accident we are inclined not to be so expansive on the pain and suffering award as Claimant’s three-times-actual-personal damages prayer requests. Accordingly, we conclude that a gross award of $1,000 in property damages, $10,448 in compensatoiy personal damages, $30,000 for compensation for permanent injury, and $15,000 for pain and suffering, totaling in gross $56,448, is the appropriate measure of damages in gross.

Applying the comparative fault ratio of 60% Claimant fault and 40% State fault that we have determined per the Alvis standard, the court will award Claimant $22,579.20.

Accordingly, judgment is entered for Claimant and against the State, and Claimant Donald E. Willis is awarded $22,579.20 as his full and just damages herein.