author: Frederick, J.

text:
    (No. 93-CC-2602

      In re Application of Roberta J. Medlicott

      Opinion filed May 17, 1996.

    Paul C. Sheils, for Claimant.
    Jim Ryan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim is before the Court by reason of the death of Robert G. Medlicott, Sr., a deputy chief with the City of Berwyn Fire Department. The decedent’s widow, Roberta J. Medlicott, seeks compensation pursuant to the Law Enforcement Officers and Firemen Compensation Act (820 ILCS 315/1-4) (hereinafter referred to as the “Act”). On May 10, 1993, the Court remanded this case to the Commissioner to hold a hearing to determine whether Deputy Chief Medlicott had been “killed in the line of duty” as defined by the Act. The report indicated that Claimant had met the other conditions precedent for an award under the Act.

The facts are as follows: On July 29,1992, at approximately 6:00 a.m., Deputy Chief Robert Medlicott was discovered dead in his bunk at the Berwyn fire house. The cause of death was determined to be cardiopulmonary arrest secondary to dilated cardiomyopathy.

Former Fire Chief Ron Ballard testified that he was the fire chief at the time of Deputy Chief Medlicott s death. Chief Ballard testified that the normal number of work days per month for a firefighter was seven to eight days or 168 to 192 hours, depending on a number of factors, including the number of days in the month and the days on which the shift falls.

Due to a number of injured officers, Deputy Chief Medlicott was required to work overtime. In June, 1992, the decedent worked 290 hours and in July, 1992, up to the date of his death on the 29th, he had worked 264 hours.

Chief Ballard testified that firemen, while on duty, are subject to the stress of answering an alarm and the stress of being cooped up in the firehouse for extended periods of time. The Claimant, Mrs. Medlicott, testified that Mr. Medlicott had to cancel plans to go to Boy Scout camp with his son the last two weeks of July, 1992, due to the overtime he was required to work.

According to the time records in evidence, Deputy Chief Robert Medlicott started his last shift on the 27th day of July, on overtime. The next day, July 28th, was his regular shift. Chief Ballard testified a regular shift is 24 hours, so Deputy Chief Robert Medlicott was working back-to-back 24-hour shifts. Mrs. Medlicott said that when he left for work on the 27th, Deputy Chief Robert Medlicott seemed fine.

The incident reports in evidence show that at 6:45 p.m. on July 28, 1995, the second day of his double shift, the decedent answered a fire call. There was nothing particularly dramatic about the call but Chief Ballard testified, when the alarm sounds, the men don’t know whether they will be involved in a dramatic fire or not. As an officer, the decedent would not have personally fought the fire but would have directed others.

The detail headed by Deputy Chief Medlicott was back in service by 7:30 that evening and there does not seem to be anyone who could say what time he laid down in his bunk for the night. Chief Ballard did say, however, that Deputy Chief Robert Medlicott was on duty, subject to an alarm at any time, until he was discovered at 6:00 a.m. on July 29, 1992.

The medical records of Robert Medlicott were examined by William Brice Buckingham, M.D. who testified as an expert. The records showed that Robert Medlicott had been treated for about one year prior to his death. In August of 1991, a cardioversion was performed by a Dr. Pacold. At that time, Robert Medlicott had a rapid pulse which had failed to respond to beta blockers or Digoxin. The cardioversion successfully re-regulated his heart rate. The doctor advised Mr. Medlicott to abstain from beer. Mr. Medlicott was an ex-smoker, having given up cigarettes ten years before, and he had been treated for the rapid pulse about ten years prior to his death.

Mrs. Medlicott testified that the decedent was following the doctors orders with respect to taking his medications and abstaining from alcohol. She further testified that the decedent was not under any work restrictions from the doctor.

Dr. Buckinghams report stated, “The work hours ***** could be an aggravating or precipitating factor causing this patients death * * * working the number of hours described * * * could interfere sufficiently enough with his cardiac mechanism and add sufficient burden to his cardiac function to precipitate such an event.” Dr. Buckingham further testified that Robert Medlicott had a serious disease and was at risk “virtually any time.” It is important that Dr. Buckingham did not testify that the overtime work caused the death to a reasonable degree of medical certainty.

The Act provides for compensation to the designated beneficiary where the fireman is “killed in the line of duty.” The Act defines “tilled in the line of duty” as “losing one’s life as a result of injury received in the active performance of duties as a * * * fireman * * * if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause.”

The sole issue before this Court is whether the decedent was tilled in the line of duty. In addressing this issue, the Court has previously stated:

“Cases involving heart attacks are among the most difficult presented to this Court. The Court recognizes that police work involves stress and strain which can lead to heart attacks. In deciding whether an award should be granted, an effort is made to determine whether the activities the decedent was performing precipitated the heart attack. In cases where a decedent is performing strenuous physical activities at the time the attack is suffered, the court has consistently granted awards. However, in cases where tire decedent was not performing strenuous physical activities when the heart attack was suffered, the Court must closely examine whether the circumstances surrounding the decedent’s performance of duties prior to the time the fatal heart attack was suffered may have precipitated tire attack.” In re Application of Smith (1990), 43 Ill. Ct. Cl. 183.

In this case, Deputy Chief Medlicott had worked a substantial amount of overtime in the two months preceding his death and he did respond to a fire call on July 28, 1992, but the record indicated that it was not a serious incident. Claimant urges this Court to conclude that the cumulative effect of working overtime and the daily stress of waiting for the fire alarm were the cause of the decedent’s heart attack.

Claimant strongly relies on the Court’s opinion in In re Application of Feehan (1980), 34 Ill. Ct. Cl. 293. The facts in Feehan, however, are clearly distinguishable. Terry Wayne Feehan was a sheriffs investigator. He was found unconscious on a third floor bathroom of a county courthouse. The circumstances leading to Investigator Feehan’s death were that he put in an extraordinary amount of overtime in the active performance of stressful police duties prior to his death. The work he performed consisted of investigating crimes committed and about to be committed, making arrests, performing searches, and conducting surveillance and stakeouts in connection with a burglary and drug dealing. On the date of his death, he traveled to deliver evidence to a crime lab. Upon his return, he was called to testify at a hearing in a burglary case. Investigator Feehan was unaware he would have to testify. He began his testimony at 11:35 a.m. and testified for approximately 30 minutes. He left the courtroom and was found dead in the restroom shortly thereafter. Investigator Feehan was in the active performance of stressful duties just prior to his death.

Clearly, obligation and rigors faced daily by our firefighters result in stress for them. However, the evidence in the instant case is too remote to establish a causal connection between the employment and the death. At the time of death, Claimant was not involved in any strenuous activity. He was not responding to a call, and in fact he had long returned from the last call. The decedent apparently went to sleep and then died.

The overtime and the daily stress of his duties as a fireman are too remote to establish a causal connection between his duties and his death. There is simply not enough evidence to establish that the circumstances surrounding decedents performance of duties prior to the time the fatal heart attack was suffered precipitated the heart attack.

The Court must acknowledge the decedents contributions to the public during his career and the tragedy of his untimely death; however, there is not enough evidence to establish that Deputy Chief Medlicott was “killed in the line of duty.”

We are not unsympathetic to the loss of Claimant. However, as a Court, we must follow the law. We have stretched the statutory definition of killed in the line of duty to its extreme in many cases but the facts of this case are well beyond that limit.

Deputy Chief Medlicott was a fine fireman, but he was not killed by violence or other accidental cause. He had a serious disease and died of that disease.

For the foregoing reasons, it is the order of the Court that Claimants claim be and hereby is denied.


source: Caselaw Access Project

author: JANN, J.

license: Public Domain

text:
    (No. 93-CC-2848
    Donald Anderson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 1, 1995.

    Mark E. Wohlberg, for Claimant.
    Jim Ryan, Attorney General (Joel Cabrera, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This cause arises from an incident on June 17, 1991, at approximately 8:00 p.m. at the Vienna Correctional Center. Claimant, an inmate at the time, was working in the ethanol plant as a still operator when a pipe burst. Claimant received first and second degree bums on several areas of his head, left eye and left arm. Claimant asserts that Respondent was negligent in the maintenance of the ethanol still, failed to make necessary repairs after notice of a defective or unsafe condition, failed to inspect the work area and failed to warn Claimant of the unsafe condition of the pipe and work area. Claimant seeks $25,000 in damages for his injuries, lost time, pain and suffering, and permanent disfigurement.

Claimant testified that he had worked in the ethanol plant as a still operator on the 3:00 p.m. to 11:00 p.m. shift for approximately eight months prior to his injury on June 17, 1991. Claimant advised his supervisor that the still was running “kind of hot” approximately one to one and one-half hours before the pipe broke. Claimant was instructed to follow routine procedures involving adjustment of valves to attempt to lower the temperature of the still. Claimant stated a maintenance man was summoned, but he was also unable to rectify the overheating. When tire temperature had failed to lessen within an “hour or so,” Claimant was told to shut down the still by his supervisor, Ralph Childers. As Claimant attempted to shut down the still, a pipe carrying hot liquid burst and sprayed the left side of his face, head and left arm. Claimant was taken to the medical unit for treatment.

Claimant testified that no routine maintenance was performed on the still during his tenure at the ethanol plant. He stated that repairs were made on an as-needed basis by inmate repairmen. Claimant further stated that the pipe in question had leaked about two weeks prior to the incident. He stated that leaks were common and repairs made in a “makeshift” manner. However, Claimant admitted that he was not an expert as to plumbing matters.

Claimant stated he was in severe pain from the burns for two to three weeks following his injury. He also suffered constant itching of the affected areas for several months and blurred vision in his left eye. Claimant presently complains of continued itching four to five times per month, a discoloration of the skin on his shoulder and occasional blurred vision in his left eye. Claimant sought no further medical treatment for his injuries after he was allowed to return to work in September, 1991. No medical evidence was introduced as to Claimants condition and prognosis following his release from prison in December, 1991.

Claimant seeks recovery of $135 as lost time. No evidence was admitted to support the claim as to dates of the lost time and compensation. Medical records indicate Claimant was injured again on September 11,1991, while lifting a bucket in the ethanol plant. He apparently returned to work on or before September 11,1991.

Claimant introduced no evidence of proper maintenance standards applicable to an ethanol still operation. No witnesses to the incident testified or submitted statements to corroborate Claimants assertions of negligence and Respondents notice thereof. No evidence was presented as to previous incidents of injury from similar circumstances at the ethanol plant.

Randall McClellan, farm supervisor at Vienna for the last ten years, testified on behalf of Respondent. Mr. McClellan was in charge of the supervisors who ran the ethanol plant and major maintenance therein. Mr. McClellan is on premises from 8:00 a.m. to 4:00 p.m. The ethanol plant is a 24-hour, three-shift operation with State employee supervisory staff and inmate employees. Mr. McClellan stated that the Department of Corrections has institutional directives which mandate daily checks of equipment. Maintenance routine cards are kept in a daily log and initialed by a supervisor on duty during the 7:00 a.m. to 3:00 p.m. shift. The maintenance cards for the date in question were produced and indicated inspection had been made. No records of actual repairs were introduced. Mr. McClellan testified that records of routine or minor repairs are not generally kept. Mr. McClellan testified he has knowledge of Claimants injury and subsequent repair of the pipe in question. Claimant also stated the pipe was repaired after his accident.

Unfortunately, Mr. W. H. Taylor, the supervisor who made the inspection of the equipment on the day of the incident, is deceased. No incident or repair reports from the day in question were presented. Mr. Ralph Childers, the supervisor on duty at the time Claimant was injured did not testily nor were any statements or reports made by Childers presented.

Mr. McClellan described the workings of the ethanol still in some detail. He explained that relatively low pressures of two to three pounds are normal in the distillation procedure and that internal temperature of the liquid mash does not exceed 220°. Although the liquid could certainly cause burns to exposed skin, McClellan explained that Claimants contentions that the pipe exploded due to excess pressure and temperatures well in excess of 220° were not possible. He further stated that he would have been routinely notified of any obvious defect in the machinery requiring the plant to be shut down. McClellan received no such notice on the day in question.

Claimant contends that his injuries resulted from the negligence of the Respondent. Such contention must be proven by Claimant by a preponderance of the evidence and that Respondent has actual or constructive notice of the dangerous condition which caused the injury. Secor v. State (1991), 44 Ill. Ct. Cl. 215.

Claimant argues that the State owes a duty to provide an inmate with safe working conditions and proper safety equipment, citing Branch v. State (1994), 45 Ill. Ct. Cl. 102, wherein the Claimant, an inmate of a penal institution, was ordered to clean the ceiling of the kitchen and had requested a ladder to enable him to do so. However, his request for the ladder was refused and he was directed to stand on a chair which was piled with paper. Whereupon, he stood on the chair, slipped and fell which caused his injury. This Court held that the State breached its duty to provide a safe work area and proper equipment for Claimant. These facts are directly contrary to the case at bar. There was no evidence submitted that the Respondent did not provide Claimant with a safe work area and proper conditions. Claimants own testimony which was often conflicted, self-serving and uncorroborated, indicated that in his opinion, the procedure for shutting down the still was safe. The evidence indicates that routine procedures were followed to safely lower the temperature of the still. No evidence beyond Claimants speculation was provided as to the cause of the broken pipe.

The Claimant testified that he believed the still was dangerous, yet he worked on it and exposed himself to danger for eight months. Such action on his part is not an exercise of reasonable care on the part of the Claimant. Albers v. Continental Co. (1955), 220 F.2d 847.

Claimant contends that an inmate of a penal institution is not ordinarily free to refuse to perform a task even if he considers his working conditions unsafe, citing Reddock v. State (1978), 32 Ill. Ct. Cl. 611, which is inapplicable to the case at bar. Claimant Anderson was regularly employed in the “still” area involved for eight months and there were no accidents that occurred during that period until the accident involved herein. Based on this record, this area could not be classified as a hazardous area. Additionally, Claimants assertion is defeated by his own testimony wherein he returned to work at the still sometime in September 1991 and complained to the supervisor that it was unsafe. He was reassigned by the supervisor to another area in the ethanol plant.

Further, this Claimant has not shown any evidence that Respondent did not exercise reasonable care in maintaining the “still” or the pipe that connected the “still” to the electrical pump. To the contrary, evidence submitted by Respondent indicates that routine maintenance checks were being made every day and that such a maintenance check was made on June 17, 1991, just prior to the pipe burst involved in this cause. No obvious defects were found.

In addition to Claimant not meeting his burden of proof as to the negligence of Respondent being the cause of his injury, if such negligence were present and proven, Respondent, to be held liable, must have had notice of the defect. (Rosario v. State (1992), 43 Ill. Ct. Cl. 283.) The evidence indicates that steps were taken to lower tire temperature of the still in a routine manner upon Claimant s notice to his supervisor. Claimant did not notice leales in the burst pipe or other defects in the pipe on the day in question.

We hereby find Claimant has failed to meet his burden of proof and this claim is hereby denied.


author: Mitchell, J.

text:
    (No. 94-CC-0459
    J. Bradley Young, Claimant, v. The State of Illinois, Respondent.

      Order filed May 7, 1996.

    Joseph L. Racine, for Claimant.
    Jim Ryan, Attorney General (Jon McPhee, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

The Claimant, J. Bradley Young, filed his complaint with the Court of Claims on September 1, 1993, seeking damages in the amount of $5,200 from the State of Illinois for property damage as a result of an automobile accident in which Claimants vehicle collided with a Department of Transportation salt truck. The Claimant contends that the Respondents employee was negligent in the operation of the salt truck and that negligence was the proximate cause of the collision.

A hearing was held before this Court on September 22, 1994. The evidence consists of testimony by the Claimant and the driver of the salt truck. The filing of briefs was waived by the parties.

FACTS

On January 20, 1993, at approximately 6:15 p.m., the Claimant was operating his 1987 Audi 4000S in the left lane of Interstate 55 near Litchfield when he attempted to pass another vehicle and an IDOT salt truck. Both vehicles were traveling northbound in the right lane. It is uncontroverted that the roadway was icy, and it was sleeting at the time. The Claimant was traveling at approximately 25 mph while the salt track, driven by IDOT employee, Steven Voegele, and the other vehicle, a Ford Pinto, driven by an unknown motorist, were traveling between 15 and 20 mph.

The Claimant testified that he was driving in the left lane a car length or two behind the salt track when the salt track, without signaling, turned from the right lane, across the left lane and into a U-tum lane on the left that connects the northbound and southbound lanes of Interstate 55. The Claimant testified that he attempted to apply his brakes, but the icy road conditions made it impossible for him to stop. Claimant then attempted to drive onto the U-turn lane. The rear of his vehicle fish-tailed and collided with the left rear side of the salt truck. The Claimant testified that the car was totaled and that 30 days later he purchased a vehicle of identical make, model and year for $5,200.

Voegele admitted that he was acting in the scope of his employment with tire Department of Transportation when the collision occurred. Voegele testified that he signaled his turn between 200 and 300 feet before the U-turn lane, and that he checked his mirror for vehicles traveling in the left lane prior to changing lanes and saw no vehicles. He testified that he had gotten into the left lane 100 feet before the U-turn lane.

LAW

In cases involving negligence in an automobile accident, the trier of fact must determine that it was the duty of the Respondent at the time of the occurrence to use ordinary care for the safety of the Claimant, and that his failure to do so caused the injury or property damage to the Claimant.

Regarding the exercise of reasonable care, operators of State vehicles are charged with the same duty of care as other drivers upon the highway, and the State is hable for damages proximately caused by the operators negligent acts. Marquis v. State (1985), 37 Ill. Ct. Cl. 221, 222.

The duty of care with which the Respondent is charged is to see that which he clearly should see. (Id. at 223.) In addition, testimony of a driver that he looked but did not see will not absolve him of a charge of negligence occasioned by failure to look. (Grass v. Hill (1981), 94 Ill. App. 3d 715, 418 N.E.2d 1137.) Regardless of whether Voegele executed a lane change before turning into the U-tum lane or whether he signaled his lane change or turn, he had a duty to see a vehicle overtaking him at a relatively slow rate of speed. Voegele should have seen the Claimants vehicle if he had looked before changing lanes or turning. Therefore, Voegele was guilty of negligence.

Regarding whether Voegele s negligence was the proximate cause of damage to the Claimants vehicle, it was foreseeable that because of the slick road conditions, a vehicle attempting to pass the salt truck would be unable to stop in time to avoid colliding with the salt truck. Clearly the action of Voegele driving into the lane in which the Claimant was traveling without seeing the Claimants vehicle caused the Claimant’s automobile to collide with the salt truck.

Regarding the amount of damages, it was uncontroverted that the Claimant’s vehicle was totaled. Nor did Respondent contest that the value of the vehicle was $5,200 at the time of the accident, as evidenced by the fact that the Claimant purchased a vehicle of identical make, model and year for $5,200. Therefore, the Claimant is awarded $5,200.


text:
    (No. 94-CC-1657
    David Lake, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 8, 1996.

    David Lake, pro se, for Claimant.
    Jim Ryan, Attorney General (Wendell Hayes, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, David Lake, an inmate with the Illinois Department of Corrections, seeks money damages from Respondent, State of Illinois, based on Claimants allegations that he did not receive proper health care and treatment while incarcerated with the Illinois Department of Corrections at the Menard Correctional Center. In his complaint, Claimant alleges that Claimant was afflicted with open sores on his right thumb and foot for which he sought treatment. Claimant contends that the treatment afforded by Respondent was unsuccessful, and his condition worsened. He further contends that in spite of his complaints, he did not receive appropriate care between the months of October, 1.992, and December, 1992. Claimant contends that in December of 1992, Claimant was afforded different medication which again caused his condition to worsen. Finally, Claimant contends that in January of 1993, he was referred to “doctors from an outside medical facility” who discovered the cause of his problems and apparently relieved Claimants symptoms.

The cause was tried before Commissioner Rath. The Claimant proceeded to trial even though the Commissioner indicated Claimant could seek a continuance to obtain witnesses and evidence. At the hearing, Claimant testified that when he arrived at Menard Correctional Center on August 13, 1992, he was examined and found to be physically “stable.” Claimant informed Menard correctional officials that he had a medical history of ulcers and was seen on August 17,1992, by Dr. Khan. On August 18, 1992, Claimant submitted a request to the healthcare unit at Menard to see a doctor concerning two open sores located on his right toe and right thumb. Claimant contends his request went unanswered until finally, on September 27, 1992, he was seen by Dr. Khan. Claimant informed the doctor that he had submitted a request to the healthcare unit concerning the sores. Dr. Khan looked at the sores and prescribed an anti-fungus cream and zinc ointment. Claimant testified that this medication had an adverse effect and that he made further requests for medical attention. On September 29, 1992, Claimant contends that a medical technician was informed by Claimant of the problems he was having with his right fifth toe and right thumb. Thereafter, Claimant received additional creams and treatments on October 1,1992. He was also seen by medical personnel on October 2, 1992. During this period of time, Claimant testified that he was in pain but was given nothing for the pain. On October 7, 1992, Claimant was seen by Dr. Khan who observed his condition and prescribed medicated cream but gave nothing to Claimant for pain. At the trial, Claimant contended that his right thumb was larger than his left thumb as a result of these conditions.

Claimant testified that he believed his medical needs were not being addressed on a professional level and were totally disregarded. He believes the treatment he received caused him physical and psychological pain. Claimant further testified that on November 30, 1992, he received outside help from a Dr. Wallace in Belleville. Dr. Wallace gave him medication that worked and apparently resolved Claimants medical problems. However, Claimant testified that he still has pain in his hand and he is limited in his writing with his hand.

On cross-examination, Claimant acknowledged that he saw medical technicians and nurses, a doctor, and a specialist during his time at Menard. Claimant admitted that on numerous occasions he had opportunities to have his problems looked at and had received certain prescribed medications. On cross-examination, Claimant produced ten different medication containers and stated that these were the medications he was treated with.

Claimant contends in general that he was not treated properly and did not receive “the right stuff.”

Claimant presented no expert medical testimony. The Respondent presented no evidence.

Claimants claim is a cause of action sounding in medical negligence. Any Claimant who files a claim against the State alleging medical malpractice must establish by a preponderance of the evidence a breach of duty by Respondent, that the Respondent deviated from the standard of care, and that the deviation was a proximate cause of Claimants injury. (Pink v. State (1991), 44 Ill. Ct. Cl. 295.) Claimant failed to present any expert testimony to establish the standard of care, that Respondent deviated from the standard of care, and that the deviation was a proximate cause of Claimants injury. Such evidence must be established by expert witnesses. (O’Donnell v. State (1980), 34 Ill. Ct. Cl. 12.) An inmate who files a claim for medical malpractice must establish the standard of care by expert testimony. The standard of care which the Claimant must establish is that care which is provided by a reasonably well-trained medical provider in the same or similar circumstances in a similar locality. (Williams v. State (1994), 46 Ill. Ct. Cl. 221.) In the present case, Claimant has failed to prove the standard of care and a deviation from that standard of care. (Ray v. State (1992), 44 Ill. Ct. Cl. 173.) While the Court has indicated a deviation from the standard of care can be found if the inadequate care is obvious, there still must be proof that the deviation was the proximate cause of the alleged injury. Purtle v. Hess (1986), 111 Ill. 2d 229.

The Court finds that the alleged inadequate care contended by Claimant is not obvious in this case. Claimant had the burden of providing expert testimony to establish the standard of care, which he did not do. Claimant has also failed to meet his burden of proof on the issue of proximate cause. Tops v. Logan (1990), 197 Ill. App. 3d 284.

In this case, there is no competent evidence that the Respondent deviated from the standard of care or that any actions or inactions by the medical providers proximately caused any injury to this Claimant. For the foregoing reasons, it is the order of this Court that Claimants claim be and hereby is denied.


author: Epstein, J.

text:
    (No. 94-CC-1722
    Village of Harristown, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 23, 1996.

    Heyl, Royster, Voelker & Allen (Roy Gully, of counsel), for Claimant.
    Jim Ryan, Attorney General (Karen McNaught, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This is a negligence claim for damages to the Claimant villages equipment, an electrical box and power pole that were located on Old U.S. Route 66, a State highway, pursuant to permit. The damages were allegedly caused by employees and agents of the Illinois Department of Transportation (“IDOT”) while performing mowing operations on the State highway.

This claim is before us on the Respondents motion to dismiss, which asserts the immunity provision of section 9 — 113(g) of the Illinois Highway Code. (735 ILCS 5/9 — 113(g).) The Respondent contends that this statute bars the tort liability asserted in Harristowns complaint, and relies on our construction of section 9 — 113(g) in Village of Lansing v. Illinois Department of Transportation (1994), 46 Ill. Ct. Cl. 429, which was a third-party contribution claim against IDOT.

Recause the Respondent has filed its departmental report, and because the Claimant has not disputed the threshold facts asserted in the report on which the applicability of the statute depends, i.e., that the villages equipment was located on a State right-of-way and was located there pursuant to an IDOT permit issued to Claimant, we treat the motion to dismiss as a section 2— 619 motion based on the bar of section 9 — 113(g) immunity supported by the departmental report.

The statute, section 9 — 113(g), reads as follows, with “IDOT” substituted for the statutory phrase “State highway authority” that is employed in the Highway Code:

“(g) It shall be the sole responsibility of the entity, without expense to [IDOT], to maintain and repair its ditches, drains, track, rails, poles, wires, pipe line or other equipment after it is located, placed or constructed upon, under or along any State highway and in no case shall [IDOT] thereafter be liable or responsible to the entity for any damages or liability of any kind whatsoever incurred by the entity or to the entity’s ditches, drains, tracks, rails, poles, wires, pipe line or other equipment.”

The terms of the statute, particularly the immunity granted by it to IDOT vis-a-vis an “entity,” are stated in unqualified, absolute terms that do not admit of exceptions. This unqualified view and application of the statute was our construction in Village of Lansing, and we adhere to that interpretation, wherever and whenever the statute is applicable. But neither the Village of Lansing opinion nor any other decision of this or any other Illinois court have addressed the question of the scope of applicability of this statute.

The arguments in this case have not been particularly helpful on this issue, and neither side has cited us to any precedents relating to this statute or any similar immunity or liability-shifting statute that might provide guidance. The Respondent takes the position that the statute is absolute in its effect and unlimited in its applicability: that anything owned by a municipality or public utility (the most common “entities” in the usage of the Highway Code) that is situated in, on, or under a State highway right-of-way pursuant to IDOT permit is simply open game for any IDOT tort, and IDOT is immune. Period. The Claimant, on the other hand, insists that the General Assembly did not intend to grant a blanket, unlimited immunity from any IDOT activities. The Claimant, however, also cannot point us to any instructive precedent, even by ánalogy. Neither the litigants nor our own research have discovered any legislative history that might inform our analysis, other than the language of the Highway Code itself.

Neither side of this dispute finds any explicit language in section 9 — 113, in any of its subparagraphs, nor in any other section of the Highway Code, that addresses the question of scope of applicability in any express terms. The language of paragraph (g) does not contain any express limitations on its applicability, other than the qualifying facts of location on State right-of-way and a proper permit for the equipment of the “entity.”

Nevertheless, we agree with the Claimant that the statute was not intended to, and does not, have universal application. Still, we agree with the Respondent and adhere to our existing construction that where section 9 — 113(g) applies, it is absolute in the immunity granted to IDOT. (Village of Lansing, supra.) Nevertheless, this statute is contrary to the common law of tort liability (sovereign immunity aside), and is thus to be construed narrowly where possible in light of its language. Since the language here does not define the scope of applicability, we look to the statutory context, i.e., the Act and the section containing this paragraph, for an elucidation of the legislative intent of the applicability of this provision.

The Court need not here identify a bright line of applicability for this statutory immunity provision: it suffices for present purposes to observe that its applicability cannot sensibly be broader than the Act of which it is a part, the Highway Code. (Indeed, when this provision was enacted as part of the original Highway Code, the 1870 Constitution contained a restriction in its legislative article limiting the contents of legislation to the “subject” of the enactment. See 1870 Ill. Const., art. IV, section 13 (single subject rule). Thus tire impact of this provision could not exceed the “highway” subject of the code.) Similarly, there is no basis for reading this immunity provision any broader than the subject of the section of which it is a part. The draftsmanship of this statute — which placed this immunity clause within a larger section, rather than establishing it as a free-standing provision within the code — suggests that it is but an aspect of the subject addressed in section 9— 113, rather than having more general application.

When the scope of section 9 — 113 is reviewed, it is clear that this section is solely concerned with the sharing of State and township highway right-of-ways with other users under a permit system administered by IDOT. Simply put, section 9 — 113 creates a regulatory or permit system for the use of State and township real estate by local governments, public utilities, and purely private parties; it is a land use statute. The immunity and liability-shifting provisions of paragraph (e) are plainly designed to eliminate the States responsibility for the gratuitous use of its property under this land use statute.

In this context, it follows that section 9 — 113(g) has no intended application beyond the landuser-landowner liabilities implicated by the statutory land use scheme of section 9 — 113. This, then, is the consideration that determines the outer limits of the application of section 9— 113(g) immunity.

Where the liability asserted against IDOT relates to, or arises out of, the ownership, operation, maintenance or use of the highway or roadway right-of-way, then the section 9 — 113(g) immunity applies full force and unqualifiedly. Where the asserted liability of IDOT arises independently of, and unrelated to, the ownership, operation, maintenance or use of the right-of-way, then that liability is beyond the read of section 9 — 113(g) immunity. The inquiry is necessarily a case-by-case and fact-dependent exercise.

In this case, the liability asserted arises from the allegedly negligent operation of mowing equipment by IDOT personnel on the highway. The IDOT activity involved was the mowing of the highway right-of-way, which is clearly related to — and virtually a part of— IDOT’s ownership and maintenance of the highway right-of-way. Indeed, this kind of normal maintenance activity is precisely the kind of activity that was plainly intended to be immunized against liability to those using the property under permit.

Thus we find, as we must, that the village’s claim predicated on the allegedly negligent mowing operation is barred as a matter of law by section 9 — 113(g). For this reason, the Respondents motion to dismiss must be granted.

The claim is dismissed with prejudice.


author: Epstein, J. Epstein, J.

text:
    (No. 94-CC-1955
    Edward W. Ardt, Claimant, v. The State of Illinois and the Illinois Department of Professional Regulation, Respondents.

      Order filed May 5, 1995.

      Opinion filed March 8, 1996.

    James D. Goodman, for Claimant.
    Jim Ryan, Attorney General (Iain D. Johnston, Assistant Attorney General, of counsel), for Respondents.
   ORDER

Epstein, J.

This claim for recovery of $53,000 of litigation expenses is brought pursuant to section 10 — 55(c) of the Illinois Administrative Procedures Act (“APA”) (5 ILCS 100/10 — 55(c)), on the basis that the Claimant had secured a judicial invalidation of a State administrative rule. This claim is now before the Court on the Claimants motion for summaiy judgment which has been fully briefed.

Claimant apparently brought this claim directly to this Court in January, 1994, after our supreme courts December, 1992, affirmance of the appellate court order that invalidated, on constitutional grounds, an administrative regulation of the Department of Professional Regulation (“Department”) that had regulated advertising by dentists. (Ardt v. Illinois Department of Professional Regulation (1992), 154 Ill. 2d 138, 607 N.E.2d 1226, affirming 218 Ill. App. 3d 61, 578 N.E.2d 128 (1st Dist. 1991).) The Claimant was significantly but not entirely successful in that litigation. He was also partly victorious in his challenge to various department rules. As the Claimant points out, the appeals in that litigation were lengthy and burdensome: Claimants initial appeal to the circuit court led to another by him and spawned two appeals by the department which the Claimant was obliged to defend. After the appellate process concluded, the Claimant asserted in this Court, seemingly for the first time, his statutory claim for recovery of his “reasonable expenses of the litigation” to which he claims entitlement under APA section 10 — 55(c) as a result of his having invalidated administrative rules in that litigation.

Before the Court can take up the merits, a threshold issue must be resolved. The Court is constrained to raise, on its own motion, the issue of its subject matter jurisdiction to adjudicate ah initio this fee claim. Although it is settled that this Court has exclusive jurisdiction to adjudicate a claim and to enter a judgment against the State when an Illinois statute permits liability against the State (and waives sovereign immunity), this Courts jurisdiction to adjudicate a claim must be based on a statutory grant. This Court is entirely a creature of statute.

We observe that section 8(i) of the Court of Claims Act contains a specific grant of jurisdiction to this Court to adjudicate certain litigation expense claims under section 10 — 55(a) of the APA, but section 8(i) on its face appears not to provide jurisdiction over claims brought under APA section 10 — 55(c). (See 705 ILCS 505/8(i).) Similarly, the language of APA section 10 — 55 is unclear, especially in light of the different “court” references contained in paragraphs (a) and (c) of that section. Ultimately, it is uncertain whether or not the APA or the Court of Claims Act, both invoked in this case, or any other Illinois statute, singly or collectively, grant subject matter jurisdiction to this Court, either exclusively or concurrently with the circuit and appellate courts, to adjudicate fee awards under APA section 10 — 55(c) [formerly section 14.1(b)]. Because this Courts jurisdiction is entirely statutory, an analysis of all of the pertinent statutes and of their interplay and of their legislative histories and legislative intent is required. This is most appropriately done, initially, by the litigants.

We also observe that this case appears to be a procedural case of first impression, i.e., this is apparently the first case in which a litigation expense Claimant under APA section 10 — 55(c) has come initially to this Court, rather than proceeding first in the circuit or reviewing court for a fee award and then bringing that award here for review and entry of a judgment. See, e.g., Citizens for a Better Environment v. State (1987), 39 Ill. Ct. Cl. 205 (appellate court award); Cooper-Becker v. State, No. 92-CC-2792 (unpublished order, Montana, C.J., adopting fee award ordered by circuit court); Kaufman Grain Co. v. State (1990), 42 Ill. Ct. Cl. 290 (entering award imposed by appellate court in Kaufman Grain Co. v. Director, Dept. of Agriculture (4th Dist. 1989), 179 Ill. App. 3d 1040, 534 N.E.2d 1259, 1265.)

We believe it is appropriate and necessary to have full briefing of this issue by the parties before further consideration of this case. It is therefore ordered:

1. Claimant and Respondent are directed to file supplemental briefs or other submissions on, and limited to, the following:

(a) Supplementing the record with portions of the record in the circuit, appellate or supreme courts, as either party deems relevant to this Courts consideration of the jurisdictional issue;

(b) The issue of the jurisdiction of this Court to adjudicate ab initio, and in lieu of the trial or reviewing court, the recovery of litigation expenses under section 10 — 55(c) of the Administrative Procedures Act; and

(c) If a party contends that such jurisdiction is granted by law, whether such jurisdiction of this Court is concurrent or exclusive;

2. Claimants and Respondents supplemental briefs shall be filed within 60 days after the entry of this order.

3. Either party may file a supplemental reply within 30 days after the other party’s supplemental brief is filed. Requests for oral argument shall be filed by that date.

4. The Claimant’s summary judgment motion is taken under advisement.

OPINION

Epstein, J.

This claim for recovery of $53,000 of administrative litigation expenses was brought pursuant to section 10— 55(c) of the Illinois Administrative Procedures Act (the “APA”) (5 ILCS 100/10 — 55(c)), on the basis that the Claimant had secured a judicial invalidation of a State administrative rule. This claim is before the Court on the Claimants motion for summary judgment, fully briefed, and this Court’s later inquiry as to its jurisdiction (see, order of May 5, 1995), which was supplementarily briefed and orally argued to the full Court.

1. The Facts

Claimant, a dentist, was the subject of an administrative action by the Department of Professional Regulation (the “department”) relating, inter alia, to his professional advertising. In that proceeding, the Claimant challenged the validity on constitutional grounds of various rules and regulations of the department that regulated dental advertising and which were the basis, in at least substantial part, of the department’s action against the Claimant. That litigation wound its way from an administrative hearing in the department, to the circuit court, to the appellate court and, finally, to the supreme court, which affirmed the appellate court’s decision that invalidated administrative regulations of the department. Ardt v. Illinois Department of Professional Regulation (1992), 154 Ill. 2d 138, 607 N.E.2d 1226, affirming 218 Ill. App. 3d 61, 578 N.E.2d 128 (1st Dist. 1991).

In that exhaustive litigation, the Claimant was partially and significantly but incompletely victorious. He was also substantially but incompletely victorious in his challenge to various department rules. Nevertheless, he was undisputedly successful in invalidating administrative rules. It is also clear that the last two of these lengthy and burdensome appeals resulted from tire department’s appeals from orders adverse to it, which the Claimant was obliged to defend and which he defended successfully.

Claimant brought this claim directly to this Court in January, 1994, well after the supreme courts opinion of December, 1992. In this Court, Claimant asserted his statutory claim for recovery of his “reasonable expenses of the litigation” under APA section 10 — 55(c), to which he claims entitlement as a result of his having invalidated administrative rules of the department in that litigation. His “reasonable expense” claim is for $53,000.

2. The Jurisdictional Issue

This Court raised the jurisdictional issue, which we characterized as the “subject matter jurisdiction [of the Court of Claims] to adjudicate ab initio this fee claim” (order of May 5, 1995). We noted then that our jurisdiction must be based on a statutory grant, as this Court is entirely a creature of statute and its authority devolves solely from statute.

We also observed that the provision of our statute that was invoked to provide jurisdiction, section 8(i) of the Court of Claims Act (705 ILCS 505/8(i)), contains a specific grant of jurisdiction to this Court to adjudicate litigation expense claims brought under section 10 — 55(a) of the APA, but not over claims brought under APA section 10 — 55(c). The Court asked the parties to brief this facial jurisdictional distinction between section 10 — 55(a) and section 10 — 55(c) claims, and we invited analysis of the question of

“whether or not the APA or the Court of Claims Act * * * or any other Illinois statute, singly or collectively, grant subject matter jurisdiction to this court, either exclusively or concurrently with the circuit and appellate courts, to adjudicate fee awards under APA §10 — 55(c) [formerly §14.1(b)].”

Finally, in throwing this jurisdictional issue back to the litigants, the Court reviewed, non-exhaustively, the procedural history of these section 10 — 55(c) fee claims in this Court. We observed that this case appeared to be a procedural case of first impression, i.e., that this was apparently the first case in which a litigation expense Claimant under APA section 10 — 55(c) has come initially to this Court, rather than proceeding first in the circuit or reviewing court for a fee award. We pointed out that in those cases, the fee award adjudicated in the courts of general jurisdiction had been brought here for review and entiy of a judgment. See, e.g., Citizens for a Better Environment v. State (1987), 39 Ill. Ct. Cl. 205 (appellate court award); Cooper-Becker v. State, No. 92-CC-2792 (unpublished order, Montana, C.J., adopting fee award ordered by circuit court); Kaufman Grain Co. v. State (1990), 42 Ill. Ct. Cl. 290 (entering award imposed by appellate court in Kaufman Grain Co. v. Director, Dept. of Agriculture (4th Dist. 1989), 179 Ill. App. 3d 1040, 534 N.E.2d 1259, 1265.)

3. The Positions of the Parties

Claimant contends that this Court has the exclusive jurisdiction to adjudicate section 10 — 55(c) fee claims under the Court of Claims Act and under general principles of Illinois sovereign immunity law, particularly in the absence of any jurisdictional grant to any other court over section 10 — 55(c) fee claims on which the legislature has waived sovereign immunity. Claimant relies on section 8(a) of our Act, the general jurisdictional grant to this Court to adjudicate “claims against the state founded upon any law of the State of Illinois * * *” and, to a lesser extent, on section 8(i) of our Act, which he argues was not intended, or cannot sensibly be read to have been intended, to be limited to administrative cases that are not litigated beyond the administrative level. Claimant argues, consistently, that the adjudications of the fee awards in Citizens for a Better Environment, supra, and Kaufman Grain Co., supra, by the appellate court, and in Cooper-Becker, supra, by the circuit court, were improper and without jurisdiction (but were seemingly salvaged by this Courts adoption of those courts’ awards).

The Respondent takes precisely the opposite position. The State takes the unqualified position that this Court lacks any jurisdiction to adjudicate claims brought under section 10 — 55(c) by virtue of the absence of a specific statutory grant of jurisdiction over section 10 — 55(c) claims.

Neither the Claimant nor the State advocates, or recognizes any argument that might support, the notion of concurrent jurisdiction of this Court and the Illinois courts of general jurisdiction over APA section 10 — 55(c) fee and expense claims.

3. The Opinion

Analysis of our jurisdiction traditionally and appropriately starts with our own statute, the Court of Claims Act, and commences particularly with section 8, the jurisdictional section of our Act. This is because tire General Assembly has for many years followed a general practice of legislating grants of jurisdiction and other powers to this Court within that Act, usually by amending section 8. That legislative practice, however, is not constitutionally mandated. Accordingly, review of our Act does not necessarily exhaust the potential statutory sources of our jurisdiction.

Initially, then, we have reviewed our Act and the arguments of the parties. Sections 8(a) and 8(i) of the Act, which are invoked here, provide as follows:

“Section 8. Jurisdiction. The court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the State founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency, other than claims arising under the Workmen’s Compensation Act or the Workmen’s Occupational Diseases Act, or claims for expenses in civil litigation.
0 O 0
(i) All claims authorized by Section 14.1(a) of the Illinois Administrative Procedure Act for the expenses incurred by a party in a contested case on the administrative level."

For the reasons that follow, we conclude that neither section 8(a) or section 8(i) of the Court of Claims Act grant jurisdiction to this Court over administrative litigation expense claims arising under APA section 10 — 55(c).

Although a superficial consideration of section 8(a) may suggest that these section 10 — 55(c) fee claims might be covered by its “founded upon any law” language, as Claimant urges, that does not take account of the statutory exclusion of “claims for expenses in civil litigation” contained in the same provision. And although the civil litigation expense clause of section 8(a) is somewhat ambiguous on its face, it is ultimately an exclusion of such expense claims from tire section 8(a) grant of jurisdiction as this Court has held. Taylor v. State (1995), 48 Ill. Ct. Cl. 369.

As it is clear that the administrative review litigation that is the subject of this claim is civil litigation, it follows that “expenses in civil litigation” under section 8(a) of our Act encompasses the fees and expenses sought in this case, and excludes this claim from our section 8(a) jurisdiction.

The analysis of our section 8(i) jurisdiction is briefer. That provision simply does not include APA section 10— 55(c) claims, and Claimant has not persuaded us that there is any basis on which we could, or should, construe the statute other than as it plainly reads — or fails to read.

The Claimant argues, essentially, that the General Assembly made a legislative error in including section 10 — 55(a) but not section 10 — 55(c) in this jurisdictional grant, and that a literal application of the omission will leave section 10 — 55(c) Claimants with a right devoid of a remedy, which is to be avoided. That is not a senseless argument. But it lacks merit under the full statutory circumstances. (In any event, it would require more than a merely harsh result for this Court to find and “cure” a possible legislative error, and at a minimum there would have to be a strong showing of legislative error contrary to legislative intent, which is utterly missing here.)

There are three answers to Claimants arguments on section 8(i). First, the statute itself manifests a plain intent to have a limited reach. The statute includes language that explicitly limits our section 8(i) jurisdiction to “expenses incurred by a party in a contested case on the administrative level” (Emphasis added.) This language eliminates any hint of inadvertence in the drafting of section 8(i), and plainly fails to reach administrative cases that reach judicial review. This is not an instance of a purely numerical cross-reference in a statute that might be misdrafted.

Second, the statutory scheme of the APA section 10 — 55 manifests a coherent and rational legislative scheme. Under APA section 10 — 55, there are only two situations in which a Claimant can get reimbursement for his or her litigation fees and expenses: (1) in an agency-initiated case that “does not proceed to court for judicial review,” and (2) on an issue on which a “court does not have jurisdiction * * * under Section 2 — 611” [now Supreme Court Rule 137] (Emphasis added.) It is only in these instances where the Claimant can eventually come to this Court under APA section 10 — 55(b), which is the procedural implementation section for section 10 — 55(a). On the other hand, section 10 — 55(c)—which is in issue here — is not limited to expenses “at the administrative level” and only comes into play where there has been a judicial invalidation of an administrative rule. Thus, section 10 — 55(c) involves only judicial proceedings in the courts of general jurisdiction. The APAs bifurcation of its statutory remedy into non-judicial cases and judicial cases, with a distinct procedure for each, is entirely rational. That the APA allows jurisdiction over section 10 — 55(a) claims to remain in the circuit court (or the reviewing courts) rather than vesting this Court with jurisdiction over them is a legislative choice that this Court cannot and should not question.

Third, Claimants contention that this Courts refusal to exercise jurisdiction over his section 10 — 55(c) fee and expense claim will leave him, and other administrative litigants similarly situated, without a remedy is effectively disposed of by the analysis above. It seems clear that jurisdiction to adjudicate administrative litigation expense claims under APA section 10 — 55(c) lies in the circuit court or the reviewing courts. Contrary to the Claimants suggestion, no statutory grant is required to provide such jurisdiction to the circuit, appellate or supreme courts, whose underlying jurisdiction to adjudicate all justiciable controversies flows not from statute but from article VI of the Illinois Constitution of 1970.

Of course, a claim that is barred by sovereign immunity, such as a claim against a State agency for litigation expenses, is non-justiciable for that reason. The legislative waiver of sovereign immunity over claims against the State for litigation expenses in administrative proceedings — which is effected by APA section 10 — 55—is necessary to remove the jurisdictional impediment against adjudicating these claims against the State as a defendant. But once that impediment is removed by statute, as it has been by section 10 — 55(c), the constitutional jurisdiction of the circuit, appellate and supreme courts applies fully to those administrative expense claims, unless the legislature prescribes jurisdiction elsewhere, such as this Court, as it traditionally does but as it has not done for these claims.

Claimant misapprehends the law when he contends that all claims over which sovereign immunity has been waived must be adjudicated in this Court. That is, of course, the general rule in Illinois. And, for those claims that are governed by the Court of Claims Act, exclusive jurisdiction in this Court is the rule. But jurisdiction here is the general rule because — and only because — the General Assembly has chosen to vest jurisdiction in this Court over most otherwise-immunized claims against the State. But most is not all.

There are a few classes of claims against the State where the General Assembly has opened the door to liability but has left jurisdiction in the circuit and reviewing courts rather than specifying exclusive jurisdiction here. For example, fee award cases for bad faith pleading by the State (under former section 2 — 611 and now seemingly under Supreme Court Rule 137) are heard in the courts in which the pleading offense occurred, which ordinarily is in the circuit court. (Taylor v. State (1995), 48 Ill. Ct. Cl. 369.) We now hold that the same is true of APA section 10 — 55(c) claims for litigation expenses.

Our review of the remainder of the section 8 provisions and of the other sections of the Court of Claims Act failed to disclose any plausible basis for jurisdiction in this Court over section 10 — 55(c) expense claims. None of the parties has suggested a jurisdictional predicate in any other statute.

However, before terminating the analysis, and notwithstanding the failure of the Claimant to argue the point, we consider the possibility that the references to “court” in APA section 10 — 55(b) and (c) itself might itself constitute a grant of jurisdiction, and if so, whether the statutes use of the generic and uncapitalized term “court” might encompass this Court as well as the state courts of general jurisdiction, even though, as the State emphatically points out, the statute uses the capitalized term “Court of Claims” in section 10 — 55(b). We agree that this strongly suggests an intended distinction between “court” and “Court of Claims.” It is not altogether clear, however, just what distinction was intended.

We have given this much consideration. Although we accept the point that the two terms should be read to have different meanings, we do not agree with the State’s argument that “court” necessarily excludes the Court of Claims. We have found nothing in the APA’s language or policy or available legislative history that calls for that construction. Thus it is plausible that the APA, or at least the APA amendment enacted in Public Act 82-670, contemplated concurrent jurisdiction over section 10 — 55(c) claims, by this Court and the court that invalidates or reviews the invalidation of the administrative rule (which triggers the States liability under section 10 — 55(c)).

However, we are persuaded otherwise by the legislative history of these provisions. The General Assembly’s inclusion of a companion amendment to our Act granting us jurisdiction (over the section 10 — 55(a) claims) in the same enactment in which it added the administrative expense remedy to the APA demonstrates that the legislature did not intend the APA language itself to be a jurisdictional grant. See Public Act 82-670 (adding [currently-numbered] section 10 — 55 to the APA and adding section 8(i) to the Court of Claims Act). If the APA’s language was intended or understood to be a jurisdictional grant, there would be no reason to amend the Court of Claims Act to grant us jurisdiction a second time. The canons of construction mandate us to adopt an interpretation that avoids redundancy in statutory language where possible, and we do so. Accordingly, we must find that the APA language was not a jurisdictional grant. For this reason, jurisdiction is unavailable to this Court under the provisions of APA section 10 — 55.

That, finally, exhausts the analysis which leaves this Court without jurisdiction and the Claimant in the position, as he put it, of trying to convince a reluctant court elsewhere in Illinois that it has jurisdiction to hear his administrative expense claim. We intimate no views on Claimants contention that section 10 — 55(c) may create an independent action, and we intimate no view on whether the supreme, appellate or circuit courts that heard the original litigation — in which this fee and expense claim clearly could have been adjudicated — still have or could reassert that jurisdiction to entertain Claimant’s petition. We do observe in passing that no statute of limitations has been brought to our attention that would bar this claim in this or any other court.

This Court understands, as Claimant has aptly pointed out, that our conclusions as to the jurisdiction of other courts may not be binding or even persuasive, particularly as we hold that we lack jurisdiction to do anything but issue this opinion and dismiss this case in this Court. Nevertheless, that conclusion impacts on our ultimate holding, and is germane to Claimant’s argument that this statutory claim must have a remedy in some court. That oft-made argument has particular resonance in this case.

This Court, however, lacks jurisdiction to entertain this administrative litigation expense claim brought under APA section 10 — 55(c). Accordingly, this claim is dismissed, without prejudice to reassert it in a court of competent jurisdiction.


author: Patchett, J.

text:
    (No. 94-CC-2390

      In re Application of Nancy Kolowski

      Opinion filed August 23, 1995.

    John M. Hosteny, for Claimant.
    Jim Ryan, Attorney General (Chad Fornoff, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This cause comes before the Court upon the claim filed herein by the Claimant, Nancy Kolowski, the widow of Robert Kolowski, for benefits under the provisions of the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, Firemen, and State Employees’ Compensation Act ("the Act”). 820 ILCS 315/1 etseq.

The Claimant seeks to recover under the Act for the death of her husband who died of a heart attack while on duty as a special agent with the Illinois State Police — Division of Criminal Investigation.

The Claimant is the designated beneficiaiy of Robert Kolowski. On February 25, 1993, Robert Kolowsld was on duty in his assigned squad car en route to interview local gun dealers pursuant to a firearm owners’ identification card violation. He suffered a heart attack in the parking lot of Division 5 headquarters at approximately 3:15 p.m. He was rushed by ambulance to St. Joseph Hospital, where he was pronounced dead at 4:37 p.m.

Although the decedent was not performing strenuous physical activities when he suffered his heart attack, a close examination of the circumstances surrounding his performance of duties prior to the time of the fatal heart attack shows that these circumstances may have precipitated the heart attack. Special Agent Kolowski was involved in a job that is, by nature, very strenuous. Additionally, the decedent was involved in a shooting in 1980, and he suffered nightmares about this incident up to the time of his death. Only days before his heart attack, the decedent worked a 13-hour day and an 18-hour day that culminated in drug arrests in extremely cold temperatures. The decedent was further involved in unloading, loading, and transporting over 300 pounds of cannabis at the end of the 18-hour day in extremely cold temperatures.

Earlier in his career, Robert Kolowski served as a State trooper and field training officer. Until two weeks prior to his death, he was assigned to the Will County Task Force and involved in undercover operations. By all accounts he was an outstanding officer and had a brilliant career with the State police. Special Agent Kolowski, in addition to his investigative work, was also involved in testing and training new recruits. The department chose him to be a supervisor over cadets at the Illinois State Police Academy in 1988.

In the course of his career, Special Agent Kolowski was exposed to strenuous and arduous activities. In 1980, he was involved in a shoot-out in which he and his partner fired 21 shots at an assailant, striking him 13 times before he fell. Up until his death, Robert Kolowski suffered nightmares related to that incident.

Special Agent Kolowski s physical and emotional stress continued when he was assigned to the Will County Task Force. The Will County Task Force was often involved in undercover operations, including drug surveillance and arrests. This task force had problems with personnel because many officers had taken early retirement. Furthermore, Special Agent Kolowski had a personal conflict with one of his supervisors. In addition to the physically demanding assignments on the task force, Special Agent Kolowski may have been subjected to ethnic slurs and other public humiliation by this supervisor. Special Agent Kolowski filed a formal grievance in late January, 1993. This unit was disbanded on February 11, 1993, only two weeks before Robert Kolowski s death on February 25, 1993.

After the dissolution of the Will County Task Force, Robert Kolowski returned to the Division of Criminal Investigations and continued his undercover work. On February 18, 1993, he worked from 8:26 a.m. to 5:20 p.m. and then was called out again at 11:45 p.m. and worked until 4:00 a.m. the following morning, a 13-hour day. On February 19, he began working at 9:39 a.m. and worked until 3:30 a.m. the next morning, an 18-hour day.

During the last 12 hours of that 18-hour day, he was assigned to a drug surveillance case. Temperatures that day were extremely cold, and one officer had to write out the incident report from inside a vehicle in order to keep his pen from freezing. That drug surveillance ended with arrests and recovery of over 300 pounds of cannabis. Robert Kolowski assisted in transporting the cannabis from the suspect’s vehicle to a police vehicle, and again from the police vehicle into evidence storage.

Soon after these arrests, Robert Kolowski complained of a tightness in his chest, congestion, and hot and cold sweats. Thinking it was only a cold or the flu, he did not see a doctor. Robert Kolowski called in sick on February 22 and 23, 1993. Although his symptoms did not improve, he did go to work on February 24 in order to catch up on his paperwork. On February 25, 1993, he went into work, again with what he believed to be symptoms of a cold or influenza. That afternoon he was called out to investigate a firearm owner’s identification card violation. As he entered his squad car in the parking lot of Division 5 headquarters, he suffered a heart attack. He was rushed by ambulance to St. Joseph Hospital, where he was pronounced dead at 4:37 p.m.

The issue presented for determination by the Court is whether the decedent was killed in the line of duty as contemplated by the Act. More specifically, the issues are whether his life was lost as a result of injuiy received in the active performance of duties as a State police officer and whether the injury arose from violence or other accidental causes.

This Court has recognized that cases involving heart attacks are "among the most difficult presented * * (In re Application of Smith (1990), 43 Ill. Ct. Cl. 183.) The Court continued: “In deciding whether an award should be granted an effort is made to determine whether the activities the decedent was performing precipitated the heart attack. In cases where a decedent is performing strenuous physical activities at the time the attack is suffered, the Court has consistently granted awards. However, in cases where the decedent was not performing strenuous physical activities when the heart attack was suffered, the Court must closely examine whether the circumstances surrounding the decedents performance of duties prior to the time the fatal heart attack was suffered may have precipitated the attack.” Smith, supra.

While the heart attack must have been the result of performance of duties, in some cases it is relevant to examine the “circumstances and events further preceding the death than those occurring solely on the day of the heart attack as far as is practical and not overly remote.” (Smith at 186-87.) In other cases, the Court has examined the hours the decedent worked just prior to his death in order to show that the heart attack the decedent suffered constituted an injury arising from “other accidental cause.” In In re Application of Feehan (1980), 34 Ill. Ct. Cl. 293, the Court noted that a police officer who suffered a fatal heart attack after testifying in a burglary case had been working an extraordinaiy amount of overtime in addition to the stressful nature of drug surveillance and stakeouts. In Smith, supra, the Court noted that a jailer who suffered a fatal heart attack worked 14 straight days under stressful conditions. In both cases, the Court granted an award under the Act.

The facts in the case at hand are analogous to those in Feehan and Smith. Robert KolowsM worked a 13-hour day and a second 18-hour day just prior to his illness. He worked drug surveillance and made arrests in extremely cold conditions. In the end, Robert KolowsM and his team made several arrests and recovered over 300 pounds of cannabis. Robert Kolowsld further unloaded and reloaded the 300 pounds of cannabis in these extremely cold temperatures. Within a day of this mentally and physically exhausting work, he began to notice symptoms of what he thought was a bad chest cold, but may have been early signs of coronary stress. After missing two days of work, he returned to his job while suffering the same symptoms. While on the job, he suffered a fatal heart attack.

Looking beyond the events that occurred just prior to Robert Kolowskis death, we note that he suffered a tremendous amount of job-related stress throughout his career. He was involved in a shooting in 1980 that haunted him the rest of his life. Also, he allegedly suffered mental abuse and humiliation with the Will County Task Force.

This Court has recognized the stressful nature of police duties, especially those involving arrests, searches, and surveillance. (See Feehan, supra.) Even an officer who worked as a fingerprint technician and who complained of pressure in his work received an award from this Court. See In re Application of Nicholson (1979), 33 Ill. Ct. Cl. 319.

This Court has previously granted an award in the case of a heart attack which occurred while a deputy sheriff was shoveling snow. The deputy sheriff was shoveling snow away from the car which had become stuck while he was en route to serve process on a certain individual. Clearly that activity was part of the performance of his duties as a law enforcement officer. (In re Application of Parchert (1980), 33 Ill. Ct. Cl. 312.) In addition, in In re Application of Ford (1986), 38 Ill. Ct. Cl. 306, this Court entered an award for an officer who suffered a heart attack while walking a new beat alone in a high crime area. The new beat included an area where gang activities and shootings had occurred. The stress therefore associated with that risk contributed to his death which was the result of “other accidental cause.” Therefore, the officer was killed in the line of duty, and this Court entered an award.

In the present case, Robert Kolowski, having been exposed to an extremely high stress situation, was called from his office to conduct an investigation. In the course of conducting that investigation, he died of a heart attack.

This Court has also made an award where the heart attack occurred off duty when the evidence established that the decedent had to exert or had encountered strenuous exertion on the job. Subsequent to the extreme physical exertion, the officer died on the next afternoon. This is similar to the case at hand where Kolowski had encountered considerable physical exertion a week prior to the heart attack. He had complained about not feeling well after the exertion, and he ultimately had the heart attack. See In re Application of Sparling (1983), 36 Ill. Ct. Cl. 353.

For the reasons stated above, we award the Claimant the sum of fifty thousand dollars ($50,000).


text:
    (No. 95-CC-1206
    Aaron Washington, Claimant, v. The State of Illinois, Respondent.

      Order filed December 6, 1995.

    Aaron L. Washington, pro se, for Claimant.
    Jim Ryan, Attorney General (Nuvtah Shirazi, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This is a claim for personal injury pursuant to the Illinois Court of Claims Act. (705 ILCS 505/8(c).) Claimant alleges that he was injured as a result of negligence in the maintenance and control of a fire extinguisher used by another inmate to strike Claimant in the head during a fight on September 19, 1994, at the Centraba Correctional Center.

Claimant contends that Respondent negligently failed to lock the fire extinguishers so that they may not be removed by inmates and used as weapons. As a result of that negligence, Claimant states that he was struck in the head with a fire extinguisher by a fellow inmate and suffered a cut to his head. He also suffered headaches for two or three months afterward.

A hearing was held before this Court on May 4,1995, during which Claimant testified that he was attacked, without provocation, by an inmate wielding a fire extinguisher. He was treated for a laceration to his head. Claimant denies being a gang member or being involved in the fight before he was attacked.

Also at the hearing, Respondent called Lawrence Boshera, fire safety coordinator at the Centralia Correctional Center, to testify. Boshera testified that there are no rules or regulations promulgated by the Illinois Department of Corrections that fire extinguishers must be locked in boxes. He states that it is common practice to keep fire extinguishers unlocked so that inmates can extinguish small fires more quickly than if a corrections officer had to be called to unlock a fire extinguisher. He also stated that in the 15 years that he had been at Centralia Correctional Center, no other inmate has used a fire extinguisher as a weapon.

Respondent also called James Alemond, internal affairs investigator of the Illinois Department of Corrections. Alemond testified that Claimant was a member of the Gangster Disciples gang and was found to have been a participant in the fight and was disciplined.

Claimant contends he is entitled to damages of $45,000 from Respondent for negligence.

The State is not an insurer of the safety of persons under its control. Dorsey v. State (1977), 32 Ill. Ct. Cl. 449.

In order to sustain the negligence claim against Respondent, Claimant must show that Respondent had a duty, that the duty was breached and that the breach was the proximate cause of the injuxy.

Claimant failed to show that Respondent had a duty to lock the fire extinguishers in its penal institution. There is no rule or regulation to that effect. In addition, Claimant failed to show that Respondent had notice of a dangerous condition. In fact, testimony showed that no one had used a fire extinguisher as a weapon at the Centralia Correctional Center in at least the past 15 years.

Respondent has decided that fire safety warranted keeping fire extinguishers unlocked. It appears that Respondent acted reasonably and in a manner consistent with accepted prison practices.

Therefore, this claim is denied.


author: Frederick, J. Frederick, J.

text:
    (No. 95-CC-1975
    Edward Dye, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 1, 1995.

      Order on petition for rehearing filed May 17, 1996.

    Edward D. Dye, pro se, for Claimant.
    Jim Ryan, Attorney General (Nuviah Shirazi, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This is a claim for personal injury pursuant to section 8(c) of the Illinois Court of Claims Act. (705 ILCS 505/8(c).) Claimant, Edward Dye, has alleged that he was injured as a result of being deprived of his diabetic diet from September 6 to September 16,1994, while the Centraba Correctional Center was on lockdown.

Claimant, an inmate with the Illinois Department of Corrections, contends that he was suffering from an abnormally high blood sugar level. He claims that he has suffered irreversible injuries to his eyes, kidneys, liver and cardiovascular system.

At the trial before the Commissioner on May 4, 1995, Claimant testified that he filed a grievance with tire Illinois Department of Corrections, which has since promulgated a procedure for supplying inmates with diabetic diets while institutions are on lockdown. In this Court, Claimant seeks monetary compensation for the 30 diabetic meals he alleges he did not receive. The Department of Corrections refused to award Claimant compensation. Claimant also testified that his eyes and kidneys have deteriorated.

On cross-examination, Claimant stated that during the lockdown he ate items he purchased at the commissary, including potato chips. He admitted to purchasing items such as candy bars, cookies, pies and summer sausage, but stated that he purchased those items for someone else.

During the hearing, the Respondent called Harold Gotten, health care unit administrator, who testified that during October, 1994, Claimant failed to pick up many of his diabetic meals and had complained about the diet. Mr. Gotten stated that on November 4, 1994, Claimant was taken off of the diabetic diet because he failed to comply with the program by refusing to pick up his diabetic meals. Claimant was put back on the diet on December 1, 1994, and has recently been complying with the diet.

Respondent also called Donna Bassett, an accountant with the Illinois Department of Corrections, who testified to the commissaiy slips denoting food items Claimant purchased as described heretofore.

In addition to his testimony, Claimant submitted a memorandum opinion and ordered entered by the Honorable George M. Marovich on March 10, 1995, in the United States District Court for the Northern District of Illinois, Eastern Division, in the case of Edward Dye v. Michael F. Sheahan, J. W. Fairman and Szabo Correctional Services, cause number 93-C-6645. The opinion notes that taking diabetics off of their medically-prescribed diets, and denying a diabetic prisoner a special diet may have violated the eighth amendment.

Claimant contends that he is entitled to $30,000 in damages for injuries he suffered to his eyes, kidneys, liver and cardiovascular system as a result of Respondents gross negligence in failing to provide him with a diabetic diet for ten days in September, 1994.

Claimant testified that on September 6, 1994, to September 16, 1994, the institution was on lockdown. Claimant is diabetic. Claimant has a prescription for a diabetic diet. During the lockdown, diabetic prisoners were not served their diabetic diets. Claimant, in his institutional grievance, sought monetary damages for the 30 diabetic meals he did not receive. Claimant testified he has had to live on commissaiy items he purchased at the inmate commissaiy. Claimant testified his diabetes is now completely out of control. Claimant sought payment for the approximately 30 dietary meals he did not receive. The Institutional Board affirmed the grievance in regard to the failure to provide dietary meals during lockdown but denied the monetary compensation request.

The Claimant testified that as a result of not receiving his diet food, he ended up in the hospital. Only normal meals were served during the lockdown. As a result of Claimants grievance, a uniform procedure was established to ensure dietary meals to those prisoners requiring such meals. Claimant further testified he was hospitalized on the 16th of September. He was sent back to the unit that day. Three days later a lab test was done which indicated his glucose was running well over 200. Claimant testified he had frequent urination, headaches and nausea. He felt his whole system was out of whack for ten days. Claimant feels he has suffered “all sorts of damage” to his eyes and kidneys.

Claimant did not call any medical expert witnesses to testify concerning his medical condition. The transcript does show that Claimants medical records indicate that on September 16th he came into the medical unit for a blood sugar test. Claimant apparently denied any complaints at that time. No acute distress was noted.

In order to sustain a negligence claim against Respondent, Claimant must show Respondent had a duty, that the duty was breached, and that the breach was the proximate cause of Claimants injuries. Claimant must also prove his damages.

This Court has held that the State owes a duty to provide inmates with reasonable medical care. (Bynum v. State (1992), 44 Ill. Ct. Cl. 1.) Respondent did breach its duty by failing to provide Claimant with diabetic meals from September 6 through September 16 of 1994. Claimant was to have a diabetic diet. Respondent failed to provide this diabetic with his medically-prescribed diet while the institution was on lockdown. Respondent has admitted this and has since modified its procedures so that diabetic inmates are provided with proper meals during lockdowns. The State was negligent.

The inquiry does not end here, however. Claimant must prove this breach of Respondents duty was the proximate cause of his injury and what those damages are by a preponderance of the evidence. (Harris v. State (1989), 41 Ill. Ct. Cl. 184.) The Claimant has failed to prove the value of the meals for which he was deprived and presented no evidence in that regard. The Claimant has further failed to produce any evidence to show that there has been any irreversible damage to his eyes, kidneys, liver or cardiovascular system. A mere statement that these injuries occurred is insufficient. Claimant failed to produce expert testimony or even produce medical reports reflecting such injuries. This Court requires expert testimony to prove claims of insufficient medical care. Claims that the State provided inadequate and improper medical attention and care are allegations of medical malpractice and must be proven by expert testimony. (Woods v. State (1985), 38 Ill. Ct. Cl. 9; Arterburn v. State (1990), 43 Ill. Ct. Cl. 246.) While we find the State failed to provide the ordered diet foods during the lock-down, we cannot find Claimant was damaged without expert testimony which Claimant failed to provide.

For the foregoing reasons, it is the order of this Court that Claimants claim be and hereby is denied.

ORDER

Frederick, J.

This cause comes before the Court on Claimants petition for rehearing, and the Court having reviewed the opinion and the pleadings, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That this case was tried before the Commissioner of the Court on May 4,1995.

2. That Claimant had a fair opportunity to present his case.

3. That Claimant failed to prove damages by a preponderance of the evidence.

4. That Claimant had the burden of proving his damages. Jackson v. State (1992), 45 Ill. Ct. Cl. 314.

5. That absent proof of damages, no award may be entered by the Court. Harris v. State (1989), 41 Ill. Ct. Cl. 184.

6. That an award may not be based on conjecture. Walter v. State (1989), 42 Ill. Ct. Cl. 1.

7. That the Courts November 1, 1995, opinion was the correct resolution of this case as Claimant failed to prove his damages by a preponderance of the evidence.

8. There is no competent evidence before the Court that Claimant suffered injuries to his eyes, kidneys, liver and cardiovascular system.

9. That there is no competent evidence before the Court regarding the value of the meals.

10. Claimant cites the cause of Bynum v. State (1992), 44 Ill. Ct. Cl. 1, in support of his petition for rehearing. In Bynum, supra, the Claimant presented the expert medical testimony of Dr. Michael Gonzales. Dr. Gonzales testified that the Respondent failed to provide the special care which a paraplegic patient would need in order to prevent pressure sores; that Claimant was given the wrong size colostomy bags, the colostomy did not adhere; that the medical care Respondent provided Claimant did not meet the standard of care; that Claimant did not receive the physical therapy he required; and but for the inadequate treatment Respondent provided Claimant “he would be able to walk today.” (Emphasis added.)

11. That Nathaniel Bynum proved his damages by a preponderance of evidence by competent medical testimony.

12. Claimant herein has failed to prove his damages by a preponderance of the evidence by competent medical evidence. The Court cannot speculate as to whether Claimant has suffered injuries to his eyes, kidneys, liver and cardiovascular system.

13. That Claimants request for the Court to accept “known facts” does not satisfy Claimants burden of proof.

For the foregoing reasons, it is the order of the Court that Claimant’s petition for rehearing be and hereby is denied.


text:
    (No. 95-CC-3426
    Theodore Buchanan, Claimant, v. The State of Illinois, Respondent.

      Order filed April 11, 1996.

    Theodore Buchanan, pro se, for Claimant.
    Jim Ryan, Attorney General (Donald C. McLaughlin, Assistant Attorney General, of counsel), for Respondent.
   ORDER

JANN, J.

This cause coming to be heard on Respondents motion to dismiss, due notice having been given, and the Court being fully advised in the premises, makes the following findings:

According to the complaint, on May 7, 1994, Claimant was an inmate at Crossroads Community Correctional Center (“Crossroads”). At Crossroads, Claimant was in the work release program. On May 7, 1994, Claimant failed to return from work at his regularly scheduled time of 1:00 p.m. At 1:45 p.m., on May 7, 1994, Claimant was written a disciplinary report by Crossroads indicating he was in violation of Department of Corrections Rule 504c item 207.

Department of Corrections Rule 504c item 207 states:

"Unauthorized Movement or Absence.
Definition: Being anywhere without authorization, or being absent from where required to be outside the facility, or returning late or not traveling directiy to/from any authorized destination without prior approval.”

A warrant was issued for Claimants arrest. 26 hours later, at 3:00 p.m. on May 8, 1994, the Claimant turned himself in to a police station. Claimant was transferred from the police station to Joliet Reception and Classification Center on May 10, 1994. On May 11, 1994, before the adjustment committee, the Claimant pled guilty to violation of Department Rule 504c item 207 — unauthorized movement or absence. As a result, Claimants work release status was revoked.

On May 27,1994, the Claimant was transferred to the Hill Correctional Center (“Hill”). On September 22, 1994, the Claimant sought to grieve an issue of missing property to the coordinator of inmate issues. The Claimant grieved that when transferred to Hill, he had not yet received any of his property from his placement at Crossroads.

On October 11, 1994, the office of inmate issues recommended that the matter be remanded to Crossroads for review and for a report to be forwarded to the directors office within 20 days. On December 12,1994, the office of the coordinator of inmate issues reviewed the information and recommended that Claimants grievance be denied. On February 14, 1995, the office of the coordinator of inmate issues readdressed Claimants grievance of missing personal property. Once again, the coordinator of inmate issues noted that Crossroads acted appropriately in denying the grievance, specifically noting that all responsibility to an inmates property is forfeited when the inmate is away from the center for a period of time that is unauthorized.

Subsequently, on April 27, 1995, the Claimant filed this suit in the Court of Claims. Claimant now brings this claim for the conversion of his personal property by Department of Corrections officials on May 10, 1994, when he was transferred from Crossroads to Joliet Correctional Center. Claimant alleges he was not permitted to take his property with him. Claimant seeks from the Respondent the sum of $1,286.

Department of Corrections Rule — part 535, section 535.130(c) states:

“(c) Committed persons' personal property shall be deemed abandoned in the event of an unauthorized absence such as an escape, runaway, attempted escape or runaway, or failure to return to the facility.”

Department of Corrections Rule — part 535, section 535.130(d) states:

“(d) The Department shall not be responsible for loss of abandoned property or for any items for which the committed person does not have an inventory record, a permit and/or receipt, or which would have been subject to an inventory but does not appear itemized on the inventory.”

As stated above, the Claimant was found guilty of Dept. Rule 504c item 207 by an adjustment committee.

According to Department Rules 535.130(c) and (d), when the Claimant failed to return to Crossroads, his absence was unauthorized, and thus his personal property was deemed abandoned. The department was no longer responsible for any loss of the abandoned property.

It is hereby ordered that Claimants action be dismissed with prejudice.


author: Sommer, C.J.

text:
    (No. 96-CC-0057
    Robert Devaney, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 11, 1996.

    Jerry Serritella, for Claimant.
    Jim Ryan, Attorney General (Guy A. Studach, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

Claimant alleges that he was separated from employment in the office of the Secretary of State in retaliation for having exercised certain unspecified “rights” under the Workers’ Compensation Act. (820 ILCS 305/1 et seq.) Respondent has filed a motion to dismiss the claim based in part on Claimant’s failure to exhaust his administrative remedies with the Merit Commission for the Office of the Secretary of State.

Exhaustion of all available remedies is specifically required for all claims pursuant to section 25 of the Court of Claims Act (705 ILCS 505/25):

“Any person who files a claim in the court shall, before seeking final determination of his or her claim[,] exhaust all other remedies and sources of recovery whether administrative or judicial; except that failure to file or pursue actions against State employees, acting within the scope of their employment, shall not be a defense.” See also Rules 6 and 9 of this Court. (74 Ill. Admin. Code 790.60 and 790.90.)

Absent such an exhaustion of remedies, this Court simply does not have jurisdiction to consider a claim. Watkins v. State (1992), 45 Ill. Ct. Cl. 203, 205-206.

Here, the precise administrative remedy Claimant failed to exhaust was available to him under section 9a of the Secretary of State Merit Employment Code (15 ILCS 310/9a):

“A certified employee who believes that he or she has been separated from employment in the Office of the Secretary of State by a personnel transaction used as a subterfuge for discharge may, within 15 calendar days after the final decision of the Director of Personnel on the transaction, appeal in writing to the Commission. The appeal must allege specific facts which, if proven, would establish a prima facie case that the employee was in effect discharged contrary to and in violation of the requirements of Section 9 of this Act [15 ILCS 310/9]. Any appeal which fails to allege sufficient and specific facts to support the allegation may be summarily dismissed by the Commission. The Commission in due exercise of its discretion may make its decision on the appeal after an investigation of the allegations or it may order a hearing held on any disputed issues of fact or law. In any hearing called under the provisions of this section to resolve a dispute of fact, the employee has the burden of establishing by the introduction of competent evidence a prima facie case proving that the employee was pretextually discharged. Nothing in this section shall be construed to preclude employees from timely asserting other rights given to them under this Act.”

Interestingly, Claimant does not dispute his failure to exhaust these administrative remedies. Rather, Claimant’s counsel contends that an exception to the exhaustion requirement should exist in retaliatory discharge claims. As authority for this argument, Claimant’s counsel cites to cases where the judicial courts of this State have allowed union members to file suit for retaliatory discharge without first exhausting contractual remedies contained in the grievance procedures of their collective bargaining agreement. (See, e.g., Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280.) However, those situations are not analogous. Exhaustion of remedies is a fundamental jurisdictional requirement which must be satisfied in order for any claim to be brought before this Court, and we are not at liberty to disregard it. This Court has a long history of summarily rejecting claims filed by those who have failed to fully pursue their remedies elsewhere, even when employment issues were at stake. See, e.g., Badal v. State (1981), 35 Ill. Ct. Cl. 254.

Accordingly, the Court finds that Claimant failed to exhaust his administrative remedies with the Merit Commission of the Office of the Secretary of State and that, pursuant to section 25 of the Court of Claims Act, the Court does not have jurisdiction to consider this claim. It is therefore ordered that Respondent’s motion to dismiss is allowed, and this claim is dismissed with prejudice.


text:
    (No. 96-CC-2432
    Anthony Longstreet, Sr., Claimant, v. The State of Illinois, Respondent.

      Order filed May 20, 1996.

    Anthony O. Longstreet, Sr., pro se, for Claimant.
    Jim Ryan, Attorney General (Donald C. McLaughlin, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This matter coming to be heard on the motion of the State of Illinois to dismiss the claim herein, and it appearing to the Court that Claimant has received due notice, and the Court being fully advised in the premises:

According to the complaint, Claimant, while an inmate at the Pontiac Correctional Center, brought this pro se complaint in tort against Randolph County 20th Judicial Circuit Judge Jerry D. Flynn. Claimant was convicted of aggravated battery and given a two-year consecutive sentence.

Claimant seeks damages of $100,000 for the negligence of Judge Flynn. Claimant alleges the judge breached his duty to inform the Claimant of his rights to be tried on an indictment and to have a grand jury hear evidence in a criminal case for the purpose of estabhshing probable cause to prosecute for the offense of aggravated battery. Claimant alleges the judge was required by law to execute a written waiver that the Claimant knowingly waived his right to be tried on an indictment yet failed to do so.

Claimant alleges Judge Flynn refused to issue a writ of habeas corpus demanding his release from the Illinois Department of Corrections. Furthermore, based on Judge Flynns actions, Claimant alleges his constitutional rights were violated, he suffered hardship, as well as the infliction of mental pain and mental anguish. As a result, Claimant alleges he is justly entitled to compensation by the State for the negligence of Judge Flynn in the sum of $100,000.

Members of the judiciary are entitled to absolute immunity for performance of their judicial duties. (Forrester v. White (1988), 108 S. Ct. 538, 543, 544; Nance v. Lane (N.D. Ill. 1987), 663 F. Supp. 33, 35; Scruggs v. Moellering (7th Cir. 1989), 870 F.2d 376, 377; Dellenbach v. Letsinger (7th Cir. 1989), 889 F.2d 755, 761.) Absolute immunity applies to judicial acts or rulings on matters before the bench and within the Courts jurisdiction. (Ohse v. Hughes (7th Cir. 1987), 816 F.2d 1144, 1154.) Absolute immunity insulates members of the judiciary from liability in damages for judicial acts. Anderson v. Roszkowski (N.D. Ill. 1989), 681 F. Supp. 1284, 1292.

Claimant alleges Flynn was a judge of the Circuit Court of Randolph County who was assigned to hear the matter of People v. Anthony Longstreet, 91-CF-41. (See Claimants complaint). The Claimant was convicted of aggravated battery on December 4,1991.

The Claimant’s complaint indicates Jerry D. Flynn was a judge of the Circuit Court of Randolph County assigned to hear matters where Claimant was a defendant. The Claimant appeared before this member of the judiciary who was performing judicial duties to conduct hearings or trials relating to the criminal matters involving the Claimant. Judge Flynn is entitled to absolute immunity from liability in damages in this present action since his actions clearly occurred in his judicial capacity as a trial judge of the criminal matters in which the Claimant was a party. The mere fact that Claimant appears unhappy with being convicted should be addressed on appeal and not brought as an action against this judge of the Circuit Court of Randolph County in the Illinois Court of Claims.

It is hereby ordered that the motion of the State of Illinois be, and the same is, hereby granted, and the claim herein is dismissed with prejudice.