text:
    (No. 78-CC-1029
    Katherine Schuett, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 12, 1984.

    William S. Keck, for Claimant.
    Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The Claimant, Katherine Schuett, seeks recovery for injuries sustained in an automobile accident that occurred on March 4, 1978, at the intersection of Illinois State Route 72 (Higgins Road) and Bartlett Road in northwest Cook County, Illinois.

Claimant contends in essence that the State of Illinois was negligent in the manner in which its employees plowed snow onto the median strip between the eastbound and westbound traffic lanes of Illinois State Route 72 at the intersection of Bartlett Road, and that the snow, as plowed onto the median, created a hazardous condition. The Respondent maintains that the Claimant has failed to show that she was free from contributory negligence as well as denying that the State was negligent.

This matter was heard by a commissioner on July 25 and September 29, 1979, and according to Respondent’s brief, both sides are in agreement as to the material facts. On March 4, 1978, Claimant was travelling in a westerly direction on Route 72 with the intention of turning left (south) on Bartlett Road. Upon arriving at the intersection, Claimant was in the left turn lane where she stopped for a red light. While waiting for the light to change, she noticed snow piled up to eight feet high, equally wide, and perhaps 100 feet long, extending from the west edge of Bartlett Road and running down the median between the east and west lanes of Route 72. According to Claimant, the mound of snow blocked her entire view of all oncoming eastbound traffic. As the light turned green, Claimant proceeded to slowly move her car into the intersection, apparently stopping every few feet, in order to turn left. Claimant testified, “I kind of crept up a little forward, you know, sort of inch by inch. I was looking to my left for eastbound traffic”. Suddenly, without any warning, Claimant’s vehicle was struck by an eastbound auto wherein she sustained injuries requiring four days hospitalization, she was unable to return to work for six and one-half months, and her car was totally demolished.

The State first contends that it is not an insurer of the condition of its roadways. This Court has set forth the applicable standard or duty of care that is imposed on the State in maintaining its highways in many cases. In Turkin v. State (1957), 30 Ill. Ct. Cl. 417, the Court stated:

“Respondent is not an insurer of either the condition of all roadways within its jurisdiction and control, or the safety and well being of all persons traveling thereon. Rather, Respondent is chargeable only with maintaining its roads in a reasonably safe condition for the purpose for which they are intended.” 30 Ill. Ct. Cl. 417, 419.

Certainly, the reasonableness standard set forth in Turkin, supra, applies to medians.

There are two essential elements that Plaintiff must prove: One, before Claimant may recover, she must prove by a preponderance of the evidence that the Respondent was negligent. In Illinois Ruan Transport v. State (1973), 28 Ill. Ct. Cl. 323, the Court set forth the elements and burden of proof for a claimant in proving a negligence action as follows:

“Before Claimant may recover, it must prove by a preponderance of evidence that. . . (2) . . . Respondent was negligent. . 28 Ill. Ct. Cl. 323, 327. (Emphasis added.)

Here, Claimant is contending that the Respondent’s negligence involved the plowing of the snow from Route 72 onto the center median strip rather than to the sides of the highway, thereby creating a hazard to the travelling public. The State argues that its primary duty was to maintain the roadway proper by removal of the snow and that it was in the reasonable performance of its duty that the State plowed the snow onto the median as well as the shoulders. Its contention in essence is that having performed its primary duty of clearing snow from the roads, we may not impose the additional burden of clearing the shoulders and medians.

While that is true, it is also an obligation of the State, however, to exercise reasonable care in the performance of its duties, and here it seems to us that the State’s own plowing operations created the dangerous condition and the fact that the mound of snow was plowed onto the median is of no consequence if the plowing in the first instance is done in a hazardous manner.

Two days after the accident, Mr. Fred Bartuch, a State employee responsible for the snow plowing on Route 72, the intersection where the accident occurred, and his crew used equipment to cut down the snow over two feet, “for better visibility,” as he explained.

Secondly, before the Claimant may recover, she must prove by a preponderance of the evidence that she was free from contributory negligence. In Illinois Ruan Transport Corp. v. State, supra, the Court held:

“Before Claimant may recover, it must prove by a preponderance of the evidence that Claimant was free from contributory negligence . . . 28 Ill. Ct. Cl. 323, 327. (Emphasis added.)

Here, the State cites cases that when facing a known danger on a public highway, the Claimant is under a duty to exercise that degree of care commensurate with the known danger. In Mounce v. State (1951), 20 Ill. Ct. Cl. 268, the Claimant was travelling on a State road when his car hit a patch of ice, skidded and struck a bridge. The evidence indicated that he had prior knowledge of the existence of the ice patch, having travelled over the area twice within 11 hours of the accident. The Court, citing Dee v. City of Peru (1931), 343 Ill. 36, set forth the following standard:

“It has long been the rule in this State that it is the duty of persons about to cross a dangerous place to approach it with care commensurate with the known danger, and when one on a public highway fails to use ordinary precaution while driving over a dangerous place, such conduct is by the general knowledge and experience of mankind condemned as negligence.” 20 Ill. Ct. Cl. 268, 270.

Witt v. State (1969), 26 Ill. Ct. Cl. 318, involved a claim for property damages sustained in an accident caused by a patch of thick smoke obscuring the vision of motorists on a State route. Claimant drove into the smoke proceeding at a speed of 25 to 30 miles per hour and struck the rear of a truck which had stopped on the highway amidst the smoke. The Court, citing Ames v. Terminal R.R. Association (1947), 332 Ill. App. 187, noted as follows:

“Persons approaching a plac.e of danger have a duty to do so cautiously and with a proper degree of care for their own safety, the degree of care required being determined by the danger to which they are knowingly exposed. A person has no right to knowingly expose himself to danger, and then recover for an injury, which he might have avoided by the use of care for his own safety.” 26 Ill. Ct. Cl. 318, 322.

Finally, the Court stated:

“It does not appear that Claimant acted with due care and caution in driving into dense smoke, which was clearly visible from a distance, and then proceeding at 25-30 miles per hour without being able to see what was in front of him.
Where the highway is of such condition that one can see nothing ahead, it is not reasonable to proceed at 25-30 miles per hour, if at all.” (26 Ill. Ct. Cl. 318, 323.)

But those cases are not dispositive here. We agree with the cases cited in Respondent’s brief, but we believe that they more forcefully suggest that the Claimant did indeed approach a dangerous condition that the State through its negligent act created.

As to whether or not the Claimant was indeed free of contributory negligence in her attempt to navigate a left-hand turn, we must review our recent decision of Aetna Insurance Co. v. State (1981), 34 Ill. Ct. Cl. 167, which was, we think, an almost precisely parallel fact situation. There, Claimant intended to make a left-hand turn onto Case Road from Route 12 in Lake County, Illinois, and found his vision obstructed by snow plowed six feet deep onto the median. He pulled slowly into the intersection and upon finally seeing an oncoming car, attempted to accelerate through the intersection where he was struck. We stated there:

“It is possible that the State was negligent in not widening the intersection cross-over prior to the accident. The intersection was blind both for drivers on Route 12 and for the driver of any vehicle in the cross-over. The fact that the cross-over was so narrow that it could be used by only one vehicle was in itself a hazardous condition.
However, the proximate cause of the collision in the case was not the negligence of the State but the negligence of Allen in rolling out into the intersection when he did not know if there was any oncoming southbound traffic on Route 12. He had every opportunity to stop his vehicle in the inner southbound lane and let Miss Mueller pass. He did not ‘inch out’ into the intersection as Miss Mueller had observed other cars do, but rolled on out into the intersection without stopping at any point.” (34 Ill. Ct. Cl. 167, 170.)

In the instant case, we feel the Claimant, Katherine Schuett, in moving “inch by inch through the intersection” used as much caution as was possible. In fact, we can think of no other more cautious way that she may have attempted to navigate the dangerous intersection created by the State’s plowing techniques.

Based on the foregoing, we find that the Claimant is entitled to recover for damages sustained in the automobile accident that occurred on March 4, 1978. As to the amount the Claimant is entitled to recover, the record shows that she was knocked unconscious, sustained a fracture of the right clavicle, suffered cuts on her nose and face, and had glass enter her right ear. These injuries caused her to spend four days in the hospital. The Claimant’s description of any permanent injuries is highly questionable, as is her claim for over six months loss of work. It is difficult for the Court to comprehend that the injuries sustained necessitated this long a period for recovery and there was no medical testimony to substantiate it. The Claimant’s car damage was recovered by her insurance company. She did, however, have to replace eyeglasses that were broken in the accident. We find that the Claimant has proven damages in the amount of $5,000.00.

It is hereby ordered that the Claimant be, and hereby is, awarded the sum of $5,000.00.


source: Caselaw Access Project

author: Roe, C.J.

license: Public Domain

text:
    (No. 78-CC-1087
    County of Cook, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 7, 1983.

      Order filed September 6, 1983.

    Richard M. Daley, State’s Attorney (Paul P. Biebel, Jr., and Mark V. Chester, Assistant State’s Attorneys, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant, County of Cook, brings this action against the State of Illinois, Department of Public Aid, seeking $363,807.83 alleged to be due under sections 12 — 5 and 12 — 8.4 of the Illinois Public Aid Code (Ill. Rev. Stat. 1971, ch. 23, pars. 12 — 5, 12 — 18.4). A hearing on the matter was held November 19, 1980.

The case is an offspring of the litigation in Bess v. Daniel (1976), 42 Ill. App. 3d 401, 355 N.E.2d 556, where Judge Stamos held the County liable for overtime wages due certain employees of the Cook County Department of Public Aid in connection with its “Homemakers” program. Accordingly, the County has satisfied the judgment order of June 22,1977, in the amount of $363,807.83. The County now contends that the Illinois Department of Public Aid is obligated to indemnify the County for all monies expended in satisfying the judgment. For reasons to be stated, we hold that because the Cook County Department of Public Aid employed the homemakers while acting as administrative agents of the Illinois Department of Public Aid, the State is owing to the County in the amount prayed for.

The Cook County Department of Public Aid employed homemakers to care for disabled welfare recipients. If necessary, during their assignments, these individuals were required to perform their duties at the welfare recipients’ homes around the clock, and for periods of up to two weeks straight. In Bess v. Daniel, supra, the plaintiff homemakers alleged that the eight-hour-per-day wage ($25.00) was unjustifiably low compensation for their work. The trial court agreed and awarded an additional four-hours-per-day pay for the period in question. The appellate court affirmed the lower court’s determination of liability but modified the damage award. Relying on testimony of the director of the County Department of Public Aid that the plaintiffs averaged not eight, but 16, hours of work per day, Judge Stamos awarded four hours pay in addition to the four awarded by the trial judge. The question before this Court is who is ultimately responsible for the final judgment awarding the additional eight hours pay.

The reasons for which the issue of liability between the County and the State has as yet remained unadjudicated are essentially procedural and do not go to the merits of the case. In the trial court, Judge Epstein was aware of the issue’s presence and has the following remarks:

“Whether the County, if I should make an allowance of the overtime pay, is allowed a reimbursement of the State, is a matter that is not before me, and may have to be adjudicated in the Court of Claims. But that’s between the County and the State.”

Thus, while finding that the homemakers were employees of the County, Judge Epstein saw his task only as determining who, if anyone, was liable to the plaintiffs. In other words, the plaintiffs were solely concerned with finding either the County or the State liable. Whether the County would have recourse to the State if ultimately found to be the employer was to them irrelevant. Since the plaintiffs never raised the issue, it was rightfully left open.

On appeal, the County raised the question whether the State, rather than itself, was ultimately liable for the damages awarded by the trial court. Their first argument was that contrary to the trial court’s conclusion, prior to January 1, 1974, the County Department of Public Aid was merely an agent for the State of Illinois and therefore homemakers were employees of the State rather than the County. While the litigation in Bess v. Daniels, supra, was in progress, however, the Supreme Court decided Merrill v. Drazek (1975), 62 Ill. 2d 1, 338 N.E.2d 164, where it was held:

“Although prior to January 1, 1974, the County Department served as agent of the Illinois Department in the administration of the programs . . . the clearly expressed legislative intent was that its employees be employees of Cook County.”

This holding disposed of the County’s theory concerning who employed the homemakers. Alternatively, the County contended that the State still must ultimately bear the financial burden under sections 12 — 5 and 12 — 8.4 of the Public Aid Code. (Ill. Rev. Stat. 1971, ch. 23, pars. 12 — 5, 12 — 8.4.) The County argued that these statutes require the State to reimburse the County for all administrative expenses of the County Department of Public Aid. Judge Stamos declined to rule on this argument for the following reason:

“This is an issue that is exclusively a matter for resolution between the County and the State and is of no concern to the plaintiffs. Our decision does not, in any way, foreclose the County from later pursuing any cause of action it may have against the State. We hold only that because the issue was not decided by the trial judge, it is not properly before the court.”

Now that this question has been raised before the proper forum, we can begin by looking to the relevant statutes. Did the legislature intend that the County or the State be financially responsible for the additional wage payments made in connection with the homemakers program? Two statutes must be considered, the first of which reads:

“The Illinois Department of Public Aid shall order for payment by warrant grants for public aid under articles II, IV, and V . . . and all costs of administration of the Illinois Department and the County department relating thereto.” Ill. Rev. Stat. 1971, ch. 23, par. 12 — 5.)

and the second:

“The County Board shall appropriate funds for the actual and necessary administrative expenses of the County Department incurred in the discharge of its duties in administering the funds prescribed by sec. 12 — 2.. . .” Ill. Rev. Stat. 1971, ch. 23, par. 12 — 18.4.

Read in conjunction, these statutes clearly indicate that the legislature intended that the County be reimbursed for monies expended in administering the homemakers program. In fact, while the program was in effect, the Illinois Department consistently reimbursed the County Department for such wage payments. Now that additional payments for the work performed have been compelled by a court order, it is strange for the Illinois Department to argue as an affirmative defense that the County’s satisfaction of the judgment was extraordinary, and not a necessary administrative expense. The Illinois Department acquiesced in payments for the work all along. Compliance with a court order to pay wages in addition to those already authorized by a principal of his agent is manifestly a necessary administrative expense. Furthermore, a basic rule in the relationship between principal and agent is that the principal is bound to indemnify the agent against the consequences of all lawful acts done pursuant to authority conferred. Where a principal directs an agent to act on his behalf, the law implies a promise or indemnity by the principal for damages or losses resulting to the agent proximately from the execution of the agent. (Messick v. Rardin (1934), 6 F.Supp. 200, 201.) Thus, the statutory scheme and traditional common law dictate that as agent of the Illinois Department, the County Department is entitled to reimbursement and the Court so holds.

We must note that this conclusion is in no way inconsistent with the Supreme Court’s decision in Merrill v. Drazek, supra. There, as noted above, it was held that employees of the County Department of Public Aid were indeed to be deemed employees of the County Department. Involved there, however, was only a declaratory judgment as to who the proper party was for plaintiffs to proceed against. The opinion contains no language that nullifies the ultimate responsibility of the Illinois Department arising from its agency with the County Department. Merrill v. Drazek, supra, only decided that primary responsibility should rest with the County.

Finally, the State raises as an affirmative defense that because the County breached an agreement with the Illinois Department regarding payment of the damages in Bess v. Daniel, supra, the County is foreclosed from any reimbursement. The State contends that an oral agreement was reached whereby if the County did not appeal the trial court’s decision, the State would satisfy the judgment order. Thus, maintains the State, when the County appealed, it breached the agreement and forfeited its right to indemnification. Evidence adduced in the hearing before Commissioner Walsh, however, indicates that no such agreement was ever reached. George Crumley, an attorney for the State closely involved in communications between the Illinois Department and the County Department, testified as follows:

“I can't really say that we ever, between the two of us reached an agreement per se”

This testimony is in accord with that of Sheldon Gardner, who during the pendency of the Bess v. Daniel, supra, litigation was the Chief of the Civil Division of the Cook County State’s Attorney’s Office. He maintained that no agreement was reached, or even could have been reached without the approval of the Cook County Board. This approval was never gotten. The State offers, as evidence of the agreement, a letter purportedly drafted at the request of Gardner containing the terms of an agreement between the County and the State. Yet, there is nowhere evidence of the County’s assent to it. It is merely a one-sided communication between representatives of the State.

In fact, the County’s position was that it had at all times acted as the agent of the State and that the State should be held liable. The Court finds this position is sound. It is hereby ordered that the State of Illinois Department of Public Aid reimburse the County of Cook in the sum of $363,807.83, the amount expended by the County in satisfying the Circuit Court’s judgment order, as modified in Bess v. Daniel, supra.

ORDER

Roe, C.J.

This cause comes on to be heard on the Court’s own motion for the purpose of clarifying our opinion rendered July 7, 1983.

In the final paragraph of said opinion we rendered judgment for the Claimant in the amount of $363,807.83. In so doing it was not our intention that the language therein be construed as an order that or direction to the Department of Public Aid (the Respondent’s agency being sued) to pay this sum. Rather, it was our intention that the judgment be treated as any other award made by this Court and paid according to the usual and customary procedures for paying such awards.

It is hereby ordered that said opinion be, and hereby is, modified so as to reflect our intention stated herein.


author: POCH, J.

text:
    (No. 78-CC-1211
    Delores Roberts, Claimant, v. The State of Illinois and The Illlinois Department of Corrections, a/k/a Illinois Youth Center, St. Charles, Illinois, Respondents.

      Opinion filed March 13, 1984.

    Lane & Munday (Martin E. Klein, of counsel), for Claimant.
    . Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondents.
   POCH, J.

This cause coming on to be heard on the joint stipulation of the parties hereto, the Court being fully advised in the premises, finds:

That this is a personal injury action brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.8(d)).

This suit arose from injuries sustained by Claimant on June 8, 1977, while she was a visitor lawfully in the main guardhouse at the Illinois Youth Center in St. Charles, Illinois. Claimant was there to pick up her friend, an employee of the Department of Corrections at the St. Charles Youth Center, who was just getting off from work.

While Claimant was waiting she sat upon a swivel-type stool chair which was designated for such use by visitors of the Youth Center. The chair collapsed from beneath Claimant, causing her to fall to the floor and sustain the injuries giving rise to this claim.

The same chair had been broken earlier in that same day when it was used by an employee at the Youth Center who was assigned to the main guardhouse. However, instead of having the chair removed from the guardhouse, this employee simply pieced it back together and let it remain such that it posed a danger to anyone who might unknowingly use it.

It is therefore ordered that the Claimant, Delores Roberts, be and hereby is awarded the sum of two thousand five hundred dollars and no cents ($2,500.00), in full satisfaction of this claim.


author: Holderman, J.

text:
    (No. 78-CC-1237
    Kimberly Graves, Individually and as Special Administratrix of the Estate of Dennis Graves, Deceased, Claimant, v. The State of Illinois and The Illinois Department of Transportation, Respondents.

      Opinion filed October 24, 1983.

      Order on denial of rehearing filed February 3,1984.

    Anesi, Ozmon, Lewin & Associates, for Claimant.
    Neil F. Hartigan, Attorney General (Hans G. Fladung, Assistant Attorney General, of counsel), for Respondents.
   Holderman, J.

The accident on which this claim is based occurred at approximately 6:30 p.m. on July 17, 1977.

Dennis Graves, decedent, was killed as a result of injuries he sustained on that date and this suit was brought by his widow, individually and as special administratrix of his estate. The decedent was proceeding north on Cicero Avenue near 149th Street riding his 350 c.c. Honda motorcycle. He was riding with two friends who were also on motorcycles at the time the accident occurred. The pavement was dry, it was daylight, and traffic was light.

The exact position of the decedent while driving on Cicero Avenue in relation to the position of the alleged dangerous road conditions is at issue. Both companion motorcyclists testified that decedent was leading and was motoring furthest from the curbside. This evidence is conflicting because one of Claimant’s witnesses has given two different accounts of the incident. In one instance, he stated decedent was the first of the three cyclists, and in another instance, he stated he was driving in front of decedent.

Decedent had purchased the motorcycle on which he was riding a few days before the accident and it was unlike the one he had been accustomed to riding.

It is Claimant’s position that the State of Illinois was negligent in maintaining its highway, that there was a rut in said pavement, that when decedent’s motorcycle struck the rut, it caused decedent to lose control and he was thrown against a utility pole, causing his death.

There are two questions before the Court: (1) whether the State exercised reasonable care and was not guilty of negligence in maintaining the northbound lanes at the site of the accident; and (2) whether decedent himself was negligent and was not in the exercise of due care and caution for his own safety.

This occurrence took place before the contributory negligence rule was adopted by the courts of Illinois, and consequently, it is of no importance to the present case.

Claimant introduced several pictures of the scene of the accident which allegedly showed that the expansion joint of the highway was so wide that the front wheel of decedent’s motorcycle entered into said rut and caused the accident. This evidence was directly refuted by one of Respondent’s witnesses, and the pictures themselves indicate that the rut in question was merely the expansion joint found in practically all highways. It does not appear to be sufficiently wide enough to allow even a narrow tire of the type on the motorcycle decedent was riding to enter into said rut.

The Court’s attention is called to the fact that the previous motorcycle driven by decedent was a slower motorcycle, or dirt bike, as opposed to the 350 c.c. Honda he was driving on the day of the accident. The Honda motorcycle had smaller tires than his old one, although there is one witness who testified that the groove was wide enough to cause a motorcycle accident such as the one in the present case.

This Court has repeatedly held that the State is not an insurer against accidents that may occur by reason of the condition of a State highway. (Bloom v. State (1957), 22 Ill. Ct. Cl. 582.) The Claimant must prove that the State was negligent, that such negligence was the proximate cause of the injury, and that Claimant decedent was in the exercise of due care and caution for his own safety. McNary v. State (1956), 22 Ill. Ct. Cl. 328.

It is clearly the law in this State that the State has a duty to exercise reasonable care in the maintenance of its highways so that dangerous conditions likely to injure persons lawfully there shall not exist. (Dellorto v. State (1979), 32 Ill. Ct. Cl. 435.) However, “the mere fact that a defective condition existed if, in fact, it did exist, is not in and by itself sufficient to constitute an act of negligence on the part of the Respondent.” (Palmer v. Northern Illinois University (1964), 25 Ill. Ct. Cl. 1.) Claimant must show that Respondent had either actual or constructive knowledge of such defect, and it is the Court’s opinion that such knowledge was not shown in the present case.

The Court calls attention to the case in Wing v. State (1977), 31 Ill. Ct. Cl. 473, 476, which also involved a motorcycle accident, wherein the Court stated “. . . the State is charged only with using reasonable diligence in maintaining the roadways under its control. To recover on his claim, Claimant thus bears the burden of establishing by a preponderance of the evidence that the State breached its duty to use reasonable care in maintaining the highway at the accident site . . .”

The evidence shows that the pavement was dry and there were no obstructions to decedent’s vision. Assuming, arguendo, that there actually was a defect in the road, this Court recognizes that the motorist himself must exercise due care for his own safety. In McAbee v. State (1963), 24 Ill. Ct. Cl. 374, this Court denied a claim filed by a bicyclist who had struck a hole in the pavement and was tossed to the roadway; the Court stated the contributory negligence of the Claimant “in not seeing a defect in the highway” bars recovery. In Schnell v. State (1962), 24 Ill. Ct. Cl. 257, a motorcyclist was denied recovery, the Court stating:

“Where evidence showed that Claimant could have avoided the hole in the pavement had she been watching, freedom from contributory negligence was not proven.”

The Court notes that both occurrence witnesses stated , they saw the rut as they approached it, that the road was dry, and the weather was good.

This Court has held on many occasions that for a claimant to recover damages arising from defects in the roadway, the claimant.must prove the State was negligent and that such negligence was the proximate cause of the injury. In this case, the proximate cause of the accident was the negligence of decedent himself.

The Court is of the opinion that based upon the evidence presented in this case and upon the applicable law in Illinois, Claimant cannot recover because she has failed to prove by a preponderance of the evidence that Respondent was negligent, that decedent’s death was caused by any negligence on the part of the State, and that decedent was free of any negligence on his part. It is clear that Respondent is not liable for the regrettable death of decedent.

Award denied.

ORDER ON DENIAL OF REHEARING

Holderman, J.

This matter comes before the Court upon Claimant’s petition for rehearing and for new trial and Respondent’s reply to said petition.

The Court finds that Claimant has failed to allege grounds sufficient for this Court to vacate its denial of award entered October 24, 1983.

It is hereby ordered that Claimant’s petition for rehearing and for new trial be, and the same is, denied, and this claim remains dismissed.


text:
    (No. 78-CC-1612
    B. P. Construction, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 24, 1983.

    Friedman & Koven, for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Earner, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim comes before the Court on the joint stipulation of the parties agreeing to and praying for an award of $3,000.00. The joint stipulation states as follows:

1) That the claim arises from a construction contract entered into on June 24, 1970, between Claimant and Respondent.

2) That after consideration of the time and expense already spent on this claim and the time and expense that will have to be further spent to continue the dispute, the parties have agreed to settle the claim for $3,000.00.

3) That both sides have entered into this agreement with knowledge of the facts and law applicable to the case.

4) That both parties agree that an award of $3,000.00 would be both fair and reasonable.

5) That Claimant agrees to accept said award as full and final satisfaction for the instant claim and any other claims against Respondent arising under the same circumstances and events which gave rise to the instant claim.

6) That both parties waive trial, the submission of evidence, and the filing of briefs.

While the Court is not bound by an agreement such as this, it is also not desirous of creating or prolonging a controversy between parties who wish to settle and end their dispute. Where, as in the instant claim, the agreement appears to have been entered into with full knowledge of the facts and law, and is for a just and reasonable amount, we have no reason to question or deny the suggested award.

It is hereby ordered that the Claimant be awarded $3,000.00 (three thousand dollars) as full and final satisfaction of the claim.


text:
    (No. 78-CC-1644
    Richard Ernat and James Ernat, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 6, 1984.

    Peter F. Ferracuti & Associates, P.C. (Mark Cyr, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is a claim brought by Richard Ernat and James Ernat against the State of Illinois. In their complaint the Ernats allege that in the spring of 1970, they, along with Ignatius Ernat, Anne Ernat, Janice Ernat, and Marlene Ernat, entered into negotiations concerning the sale of 221.42 acres of land located in La Salle County with the State and Department of Conservation. The Ernats negotiated with Truman Esmond whom they claim was an agent for the State. Attached to the complaint is an agreement for warranty deed signed by Ignatius Ernat and Anne Ernat and by Truman Esmond, purportedly as an agent for the State of Illinois. The agreement contained, among other things, provisions allowing the Ernats to plant and harvest the 1970 crops and obligating the State to lease back the land to the Ernats so long as it was leased for agricultural purposes.

The negotiations finally culminated in a closing in June of 1970. A warranty deed transferring title to the State was recorded on June 15,1970.

Although the deed reserved the Ernats’ right to plant and harvest the 1970 crops, it made no reference to the lease-back provision contained in the agreement for warranty deed. For the next three years the State did lease most, if not all, of the land to the Ernats, during which time the land was farmed by the Ernat family. In 1973 the Ernats were given a notice to quit. After taking bids, the State leased the land to William Lucas and Jack Mills. In 1974 these two planted grass along with an oat crop and were allowed to harvest the oats, as well as the straw. The Claimants contend, therefore, that the State breached its contract, the agreement for warranty deed, by leasing the land for agricultural purposes to ones other than the Ernats. They seek damages in the amount of sixty-three thousand ($63,000.00) dollars, the profits they claim would have been realized if they were allowed to lease and farm the land during 1974.

A hearing was conducted before Commissioner Bruno P. Bernabei, who heard testimony, and received evidence and the briefs and arguments of counsel. The commissioner has duly filed his report, together with the transcripts, exhibits, and briefs now before us.

The facts and circumstances of this transaction between Claimants and the State are complicated. They raise many issues and sub-issues. The resolution of this matter, however, centers on two basic questions. The first issue is whether there did, in fact, exist an enforceable contract between the Ernats and the State, which includes the disputed lease-back provision. The second issue, and really a sub-issue to the first, is whether Truman Esmond was an agent for the State, specifically regarding the lease-back provision. The resolution of these two questions requires a close examination of the facts presented through the evidence at the hearing.

The Claimants’ evidence, particularly the testimony of Ignatius Ernat, showed that sometime in March of 1970, Ignatius Ernat and his son, James Ernat, were visited by Truman Esmond. Other than a telephone call from Mr. Esmond setting up the meeting, the Ernats had never spoken to or known Truman Esmond. At the meeting held at the Ernat home, Truman Esmond represented himself to be a representative of the Department of Conservation and the State, and said that he was interested in purchasing the land in question for the State. There was some discussion between Ignatius Ernat and Esmond concerning price and it was finally agreed that they would meet at a later date.

Approximately one month later, Ernat and Esmond met again. They drove around the land in question as Ernat pointed out to Esmond the various parcels he wanted to sell. Ernat testified that he told Esmond that if he were to sell, he would insist on reserving the right to lease and farm the land so long as it was used for agricultural purposes. Esmond responded that it was all right with him and that he was almost sure that it was all right with the State. Ernat insisted further that the reservation be included in the deed and Esmond agreed.

On April 6, 1970, a document titled agreement for warranty deed was executed by Ignatius Ernat and his wife, Anne Ernat, and by Truman Esmond, purportedly on behalf of the State. The agreement contained the lease-back provision. There were two additional agreements for warranty deed executed as well, also dated April 6,1970. One was signed by Ignatius, Anne, Richard, and Janice Ernat, and Esmond, purportedly on behalf of the State. The other was signed by Ignatius and Anne Ernat only. The matter ultimately proceeded to a closing on June 15, 1970, where both sides were represented by counsel and on that day the deed was recorded. As indicated, the deed did not contain the lease-back provision. The Ernats were paid in full and did, in fact, enter into leases for each of the next three years.

Ignatius Ernat testified that he dealt only with Esmond regarding the negotiations and ultimate sale of the land. Subsequent to the sale he did have several conversations with Ron Fitzgerald, presumably a Department of Conservation official. Concerning the yearly leases, Ernat told him that he felt that he was entitled to farm the land since he was good enough to sell it to the State in the first place, and therefore, he felt that the State should give him the first chance to farm it. Ernat also spoke with Robert Corrigan, chief of the land acquisition department for the Department of Conservation, approximately six months following the closing. Ernat told him that he should have first preference to rent the land and Corrigan agreed. When the State requested bids for the 1974 lease, Ernat submitted a bid, but lost to Lucas and Mills.

Truman Esmond testified that he had worked many years for the State as an appraiser and as a negotiator for the purchase of land on behalf of the Department of Conservation, as well as other State agencies. He stated that his authority to negotiate a purchase and sign agreements was absolute. He stated that procedurally he would draw up an option on a form that he used. In this particular case he was obviously referring to the agreement for warranty deed. He testified that the agreement for warranty deed forms were secured from his personal office and that he did not use the forms provided by the State because they contained too much fine print. The options would be sent by him to the office of the Director of Conservation and he stated further that the agreements reached by him as set out in the option were always honored. In this case, as was customary, Esmond paid one thousand ($1,000.00) dollars of his own funds to the Ernats upon signing of the agreement. This was the amount of the stated consideration in the agreement. He would customarily be reimbursed by the State following the closing of the transaction he had negotiated. Although he claims his authority was absolute, Esmond testified that he had no authority to obligate the State of Illinois beyond the money that he had personally paid, which in this case was $1,000.00.

Esmond testified that he sent all three agreements for warranty deeds to the Department of Conservation, Springfield office, including the two agreements that he had signed as agent for the State. However, the State introduced a letter from Esmond to Mr. Corrigan dated April 11, 1970, which read in full, “Enclosed is the duly executed Agreement for Warranty Deed on the Ignatius Ernat and Anne Ernat [sic] in Deer Park Township, LaSalle County, Illinois”. Attached thereto and introduced into evidence was the agreement signed only by Ignatius and Anne Ernat. There was no evidence that any State official received the other agreements signed by Esmond, or that they were even aware of their existence. When confronted with the letter and asked when he sent the other agreements to Springfield, he stated that he could not say, but that he would have thought it would have been at the same time. It is noteworthy that the complaint alleged a breach of contract arising from the agreement for warranty deed made a part of the complaint as an exhibit, and which was one of the two agreements signed by Esmond and never provided to a State official.

The Department of Conservation land acquisition chief, Robert Corrigan, testified for the State. He stated that land would be procured by the Department by first getting approval from the Governor and legislature with respect to appropriations. Negotiations with potential sellers would then be instituted by Department employees. Corrigan knew Esmond in 1970 and during that time Mr. Esmond was providing contractual services as an appraiser and also provided other related services which presumably included those of a negotiator. When Esmond did work out proposed agreements with a landowner, they would be sent to the Department of Conservation for either approval or disapproval.

Corrigan testified that he did indeed receive the agreement signed by Ignatius and Anne Ernat attached to Esmond’s letter of April 1970. He never saw the other two agreements signed by Esmond until after this lawsuit was initiated. To Corrigan’s knowledge at all relevant times, Esmond had never signed his name to any agreement as agent for the State. In this case, Esmond obviously did sign two agreements and advanced $1,000.00 which he was ultimately reimbursed for by the State. Corrigan stated that he believed Esmond was advancing money as a gamble of his own to later see if the State would be interested in acquiring the property in question. As indicated previously, Esmond himself stated that he could not obligate the State beyond the $1,000.00 that he had advanced.

Corrigan testified that prior to closing any transaction the proposed agreements and deeds had to first be approved by the Attorney General. In this case, Corrigan submitted several documents to the Attorney General, including the agreement for warranty deed received by Corrigan, as well as a proposed deed. The Attorney General’s report and opinion to Mr. Corrigan was received into evidence, and among other things, it specifically disapproved and rejected the lease-back provision contained in the agreement, although it did approve the provision granting the Ernats the right to plant and harvest the 1970 crops.

Corrigan testified that in light of the Attorney General’s opinion he did not agree to the lease-back provision. He conveyed all of this to Mr. Esmond, as well as Assistant Attorney General Anderson, who represented the State at the closing on June 15,1970. The deed recorded following the closing complied with the Attorney General’s opinion in all respects.

Corrigan also testified to a conversation he had with Ignatius Ernat in December of 1970, several months after the closing, at which time Ernat told him that he had farming rights through 1971. He was apparently referring to the first year lease. Ernat asked Corrigan for consideration beyond 1971 if the land was going to continue to be farmed. Corrigan told Ernat he would do what he could and, as indicated, leases were given to Ernat for the years 1972 and 1973.

While the foregoing recitation of the facts is lengthy, it is all relevant to the resolution of this case. As earlier stated, the two crucial issues in this case are interrelated. They concern Truman Esmond’s status and the existence of a binding contract containing the lease-back provision. We find that both issues must be resolved in favor of the State. The Claimants have not demonstrated that Truman Esmond was an agent of the State such that he had the authority to unilaterally bind the State to the leaseback provision.

The Claimants correctly state the three situations wherein a principal-agent relationship is established, and wherein the acts of an agent bind the principal. First, the agent may have actual authority from the principal. Second, the agent may have apparent authority, and third, the agent may have inherent power independent of actual or apparent authority. (Roscoe Company v. Lewis University College of Law (1979), 79 Ill. App. 3d 1098, 398 N.E.2d 1083.) In addition, the Claimants correctly stated the law of ratification, the doctrine that binds the principal where he confirms the actions of one originally unauthorized and the principal retains the benefits of the transaction. (Schoenburger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 405 N.E.2d 1976.) The evidence does not show the existence of any of these agency relationships sufficient to bind the State to the lease-back provision.

Esmond’s only actual authority given to him by the State was to negotiate for the State and to submit the negotiated terms to the Department of Conservation and, ultimately, the Attorney General for approval or disapproval. He had no actual authority to bind the State unilaterally to the terms he negotiated and he admitted as much during his testimony. From his testimony it is clear that he received no such implied authority from the Department of Conservation. This is clear also from Robert Corrigan’s testimony.

Apparent authority arises when the principal, by his conduct towards the third party, induces the third party to reasonably believe that the claimed authority of the agent exists. In short, a principal is bound by the authority that by his own acts he appears to give. Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447.

When dealing with the subject of apparent authority, this Court has noted that the ability of a person with apparent authority to contract is a point of serious consequence when dealing with State entities. The State cannot be bound by agents with apparent authority rather than actual authority in most situations because such a policy could be disastrous to the State’s budget. Agles v. State, No. 81-CC-1130, at 9-10, filed October 19, 1983.

Even if this was a situation where the State could be bound by apparent authority, the Claimants have failed to show its existence in this case. Neither the State nor Department of Conservation officials acted in a manner towards the Ernats which would cause them to believe that Esmond had the carte blanche authority that he claimed. In fact, the Ernats never knew Truman Esmond prior to the time he first contacted them. Furthermore, the Ernats never spoke to any State official about the transaction until after the closing was completed. The State did nothing to cause the Ernats to reasonably believe that Esmond had the power to unilaterally bind the State to the lease-back provision. The Department of Conservation’s failure to personally advise the Ernats of the Attorney General’s rejection of the lease-back provision contained in the agreement provided to Corrigan does not constitute conduct giving rise to apparent authority. There would be no reason for the Department to advise the Ernats since the agreement was not signed by Esmond and, therefore, there was no reason to suspect that Esmond had attempted to bind the State. The simple fact is that Truman Esmond alone claimed authority. By the Ernats’ own conduct it is difficult to understand that the Ernats believed that Esmond had his claimed authority. The Ernats executed a deed that did not contain a lease-back provision although Ignatius Ernat testified that his agreement with Esmond was that the deed contain such a provision. In discussions subsequent to the closing, Ernat felt that he was entitled to the three one-year leases not because of any contract provisions apparently, but because he felt he was entitled to rent the land since he was good enough to sell it to the State in the first place. In addition, the Ernats tendered a bid for the 1974 lease instead of relying on their alleged contract rights.

For the same reasons above mentioned, there is no rational basis to find that Esmond had any inherent authority to bind the State.

The doctrine of ratification is equally non-applicable in this case. The evidence simply showed that Corrigan received a proposed agreement containing the leaseback provision. He submitted it to the Attorney General who disapproved it. Corrigan communicated this to Esmond, as well as closing attorney Anderson. The closing then took place with no reference to the leaseback. There was no ratification.

The Court agrees with the arguments advanced by the State in its brief, concerning the basic law of contracts and offer and acceptance. The agreement submitted by Esmond to Corrigan and then to the Attorney General was an offer by the Ernats that was rejected. The terms contained in the deed ultimately executed represented the full agreed-upon terms by the parties.

An additional issue that this case raises is the question of whether or not the land was in fact leased to Lucas and Mills in 1974 for agricultural purposes. It may very well be that it was not. If it was not, there would, of course, be no breach of contract even if one existed containing the lease-back provision, and even assuming legal authority on the part of Truman Esmond. This issue unfortunately was not adequately addressed at trial nor in the briefs other than by fleeting reference.

Based on the foregoing, it is hereby ordered that this claim be, and the same is, hereby denied.


text:
    (No. 78-CC-1863
    Gust K. Newberg Construction Co., an Illinois corporation, and Del Construction Co., an Illinois corporation, a joint venture, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 5, 1984.

    Carey, Filter & White (Edward M. White, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause comes before the Court on the stipulation filed by the parties hereto. The stipulation and complaint indicate that this is a claim for breach of a construction contract between Newberg Construction Co. and Del Construction Co., a joint venture (Claimant), and the State of Illinois, by the Illinois Ruilding Authority (Respondent).

The contract in question was executed on May 20, 1970, for the construction of Phase IA of the Illinois Central College in East Peoria, Illinois (project). The Claimant was to perform services as a general contractor on the project.

Part of Claimant’s responsibilities under the contract was the installation of a roof on the project pursuant to the plans and specifications therefor as issued by the project architect. After completion of the roof, leaks developed.

The Respondent and the project architect directed Claimant to repair, restore and replace the roof to the extent necessary to produce a weatherproof and watertight roof. Claimant did so at a cost of $187,637.86.

Before considering the merits of the claim herein, the Court on its own motion shall consider the question of jurisdiction. As indicated, this matter began in the circuit court. The question remains whether the Court of Claims has jurisdiction to decide a case involving the Illinois Building Authority.

The claim herein was filed in the Court of Claims following the entry of an order by Judge Gilberto in the Circuit Court of Cook County on October 17, 1978, dismissing that part of the circuit court lawsuit involving the Illinois Building Authority. In doing so, the judge relied on the First District Appellate Court’s ruling in Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 377 N.E.2d 237.

In Talandis, a suit had been filed against the Illinois Building Authority (IBA) arising out of an alleged breach of a construction contract for the construction of a small animal clinic complex for the Champaign-Urbana campus of the University of Illinois. After a bench trial in circuit court, a judgment for Talandis was entered in the amount of $437,841.81.

Both sides filed an appeal. During the pendency of the appeal but after oral arguments, the IBA filed with the appellate court additional authority relating to the lack of jurisdiction in the circuit court to consider a case involving the IBA. It was the IBA’s position that it was a State agency and, as such, could only be sued in the Illinois Court of Claims. The appellate court agreed.

Citing the Capital Development Board Act (Ill. Rev. Stat. 1983, ch. 127, par. 771 et seq.), the court noted that that legislation specifically defined the term “State agency” to include the IBA (Ill. Rev. Stat. 1983, ch. 127, par. 773).

The court went on to hold that “the (Capital Development Board) Act’s declaration that IBA is a State agency implied that actions against IBA founded in contract had to be pursued in the Court of Claims”. 60 Ill. App. 3d 715, 717, 377 N.E.2d 237, 241.

There can be no dispute that this Court has jurisdiction over this claim. Furthermore, there can be no misunderstanding that the IBA is, in fact and law, a State agency.

In its complaint, Claimant alleged that the work which it was directed to perform by Respondent constituted a change in the work and, therefore, an extra under the provisions of the contract. It has been stipulated by the parties that the new roof which Claimant was directed to install was of a different design than originally specified by the project architect.

However, the parties have stipulated that there is no evidence to indicate that the Claimant did not adhere to the plans and specifications issued by the project architect for the installation of the original roof. Taken conversely, the Court interprets this stipulation as meaning that the original roof was installed pursuant to the plans and specifications but that leaks developed anyway. The Court deems this to be a significant admission on the part of the Respondent.

It is hornbook law that an owner, in this case the IBA, in a construction situation necessarily impliedly warrants that the plans and specifications are possible to perform, are adequate for performance and are free from defects. United States v. Speareh (1918), 248 U.S. 132.

Here the Claimant installed a roof according to the plans and specifications, for which it had no responsibility in terms of preparation, only to be ordered to install a second roof when the first one failed. By awarding the work to Claimant, the IBA had warranted that the roof, if built as designed, would be adequate. That is, such a roof would be weatherproof and watertight. Clearly, it was not.

We, therefore, find that the IBA breached its contract with the Claimant insofar as the implied warranty of the design of the roof is concerned. While the IBA had every right to insist that the roof be weatherproof and watertight, the Claimant had a right to rely on the IBA’s plans and specifications to produce such a roof.

By directing the Claimant to install a second roof which was substantially different in design than the first roof, the IBA became obligated to pay Claimant for this work which was not contemplated by the Claimant at the time it submitted its bid on this project.

Any other conclusion would result in the contractor being an insurer of plans and specifications for construction for which it had no responsibility in the first place. The field of contract law does not include such a result.

We, therefore, concur with the parties hereto that an award should be entered in Claimant’s favor.

It is hereby ordered that Claimant be awarded the sum of $32,500.00 (thirty two thousand five hundred dollars and no cents) in full and complete satisfaction of any and all claims embodied in the complaint herein.

Award granted.


text:
    (No. 78-CC-1948
    Pepper Dakota Crosby, Administratrix of the Estate of Charity T. Crosby, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1983.

    Anthony B. Eben, for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Earner, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim comes before the Court on the joint stipulation of the parties, which states as follows:

1. The instant claim seeks recovery in wrongful death.

2. Claimant’s deceased daughter died while she was under the care of a Department of Children and Family Services (DCFS) foster parent.

3. The Respondent concedes to liability for said death to the extent of $9,000.00 in damages.

4. The Claimant finds the amount of $9,000.00 to be a fair and reasonable assessment of damages.

5. The Claimant would accept said amount as full and final satisfaction of the instant claim.

6. After careful consideration, investigation and research, Respondent feels that an award in said amount would be a proper and satisfactory resolution to the instant claim.

7. Both parties hereby waive hearing, the submission of evidence and the filing of briefs.

It is the prerogative of the Court to adjudicate for itself the issues of negligence, proximate cause and damages, and in so doing, it is not bound by facts and conclusions agreed upon by the parties. At the same time, however, the Court is not mandated to reject stipulations and agreed amounts of damages; nor is the Court desirous of interposing a controversy where none appears to exist.

Where, as in the instant claim, the Court is not called upon to decide between two contrary sets of facts and legal conclusions, the decision must rest upon the propriety and validity of the stipulation submitted by the parties. The joint stipulation in this case appears to have been freely and validly entered into by all parties concerned, with full knowledge of all the facts and law involved. We therefore approve and accept the stipulation before us.

Claimant, Pepper Dakota Crosby, is hereby awarded $9,000.00 as full and final satisfaction of her claim.


text:
    (Nos. 78-CC-2043, 78-CC-1272, 78-CC-1643 cons.
    Beat R. Keller, Administrator of the Estate of Robert R. Keller, Deceased, Stephen Beshel, and James S. Cesar, Claimants, v. The State of Illinois, Respondent.

      Order filed December 6, 1982.

      Order filed January 6, 1984.

    Joseph N. Bonner, for Claimant Beat R. Keller, Administrator.
    David A. Decker and Associates, Ltd., for Claimant Stephen Beshel.
    Leo Bletman, for Claimant James S. Cesar.
    Tyrone C. Fahner, Attorney General (Francis Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

These three cases are tort claims arising out of a one-car accident at Route 173 and Price Road in McHenry County, Illinois. The accident happened September 3, 1977, at about 1:45 a.m. The three cases were consolidated for purposes of trial.

On September 2,1977, James Cesar, Stephen Beshel, and decedent Robert R. Keller met at Beshel’s home in Gurnee, Illinois, between 7:30 and 7:45 p.m. From there they went in Cesar’s car to Beshel’s aunt and uncle in Gurnee, Illinois, where they remained from about 8:00 or 8:30 p.m. until some time after 10:30 p.m., possibly until 12:30 a.m. Cesar was driving the car eastbound on Route 173 towards Hebron, Illinois, at a speed he said was between 50 and 55 miles per hour. In the front seat was Keller, and Beshel sat in the rear seat behind Keller.

Route 173 curves to the northeast where it intersects Price Street near Hebron, Illinois. As Cesar started to negotiate the curve he lost control of his car, resulting in a slide sideways along the shoulder and striking an unfinished exposed end of the guardrail to the southeast of the highway.

The exact cause of Cesar’s car leaving the highway was not established by the evidence. According to Cesar, his rear tires “must have hit gravel, I lost control of the car.” The car slid until it hit the guardrail. In the collision Robert Keller was killed. Cesar and Beshel were injured. The guardrail, as a result of the collision, protruded thru the rear wheel well on the left side after entering just in front of the right front door.

There was evidence that Cesar’s vehicle left Route 173 and slid 228 feet to the point of impact with the guardrail and another 54 feet after impact. The point of impact was 10 feet from the travelled portion of Route 173.

The testimony of the presence of gravel on the highway was disputed. No one, however, testified to seeing gravel as far back from Price Street as the point where Cesar’s car first left the highway.

Cesar was ticketed for driving while intoxicated. A blood test was taken with his permission, and it showed .15 percent alcohol.

As to the guardrail, it appeared from the evidence that it had been damaged the previous May by a car colliding with it. The guardrail was to protect against going into a ditch by a vehicle leaving the highway. The maintenance crew removed the damaged curved portion of the guardrail at that time and, since they had no replacement curved rail in stock, the crew put up four reflectorized barricades in the area where the guardrail was removed. The barricades were 2 x 8’s with a reflectorized panel approximately six feet long supported by 2 x 4’s. One barricade was placed at the end of the guardrail on Route 173 and the other three covered the area where the guardrail had been removed. A stub six inches long protruded past the post on which the damaged rail had been attached.

Claimants all claim the State was negligent in permitting a dangerous condition to exist for over three months after having actual notice that it existed. Soon after the present accident, the State made repairs to the guardrail by bending a straight section and installing it. No reason was given why this wasn’t done back in May when the first collision occurred.

The Respondent’s principal argument, here quoted verbatim, is taken from its brief, the pertinent portion of which is hereby incorporated in this opinion. The quoted argument is as follows:

“The general rules with regard to the responsibility of the State in maintaining its roadways are succinctly set forth in Kolski v. State (1976), 31 Ill. Ct. Cl. 307, where this Court stated at p. 312:
‘This Court has held on numerous occasions that the State of Illinois is not an insurer of every accident which occurs upon its public highways. The State of Illinois is charged only with maintaining its highways in a reasonably safe condition and with using reasonable diligence in doing so. We have also held that the State’s duty of due and reasonable care extends to maintenance of the shoulders of roadways for the uses for which they are reasonably intended.’
In terms of roadside hazards, the applicable rule is set forth in Kubala v. Dudlow (1958), 17 Ill. App. 2d 463, 150 N.E.2d 643, where the court held that the Restatement (Second) of Torts applies to questions of this nature. The Restatement in section 368 provides as follows:
‘A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.’
That the State owned and maintained Route 173, including the guardrail, is undisputed. That the State was responsible for the condition of the guardrail as it existed on September 3,1977 is also undisputed. The dispute concerns whether a duty had been breached to the claimants because of this ownership.
A duty, under the rule, has been breached when the possessor responsible for a roadside object or condition knew, or should have known, that it posed an unreasonable risk. This duty, however, is not framed so as to make the possessor an insurer of the safety of persons using the roadway. The risk in question must be such that a person using ordinary care is injured in the course of a foreseeable deviation in the ordinary course of his journey.
A further reading of the comments to section 368 of the Restatement expands upon the zone of risk imposed by the roadside object or condition.
. . (The rule) applies also to those who reasonably and expectably deviate from the highway and enter upon the abutting land in the ordinary course of travel. The possessor is required to anticipate the possibility of such deviations and to realize, where a reasonable man would do so, that the traveler so deviating may encounter danger. The public right to use the highway carries with it the right to protection by reasonable care against harm suffered in the course of deviations which may be regarded as the normal incidents of travel.....Comment (e).
In determining whether the condition is one which creates an unreasonable risk of harm to persons lawfully travelling on the highway and deviating from it, the essential question is whether it is so placed that travelers may be expected to come in contact with it in the course of a deviation reasonably to be anticipated in the ordinary course of travel. Distance from the highway is frequently decisive, since those who deviate in any normal manner in the ordinary course of travel cannot reasonably be expected to stray very far.....Comment (h).’
Thus the risk imposed by the roadside object or condition must be such that a traveler exercising ordinary care deviates from the highway and comes into contact with the object or condition. Liability for the injury therefrom will be imposed only where the traveler’s deviation is foreseeable and where the deviation can be deemed a normal incident of travel.
No liability can attach where under a given set of circumstances the injury was not reasonably foreseeable. The creation of a legal duty requires more than mere possibility of occurrence. Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.
In Cunis, the supreme court was considering whether a village owed a duty to an automobile passenger who, because of collision, had been thrown from his automobile approximately 30 feet onto the village-maintained parkway where one of his legs was impaled upon an object protruding from the ground. The court stated at p. 619:
‘In judging whether harm was legally foreseeable we consider what was apparent to the defendant at the time of his now complained of conduct, not what may appear through exercise of hindsight. We will not look back, as it was felicitously put by Justice Cardozo, “at the mishap with the wisdom bom of the event ***......

From the evidence before the Court in the present case, we find that the State was negligent in allowing a dangerous hazard to exist for over three months after actual notice.

We further hold that Claimant Cesar failed to meet his burden of proof that he was free from contributory negligence. However, his passengers had no such burden to prove Cesar free of negligence, merely that each of them was not contributorily negligent; Cesar’s negligence, if any, would not be imputed to them.

To answer Respondent’s argument, we hold that a vehicle going off the highway while rounding a curve at night at a speed of 50 to 55 miles per hour is a deviation from normal travel which was reasonably foreseeable.

This Court finds support for its holding the State negligent in the case of Kolski v. State (1976), 31 Ill. Ct. Cl. 307. In that case, a motorcycle left the highway and struck a jagged section of guardrail which had been damaged several months before and which the State had failed to repair. The Court held the State liable for negligence in failing to repair the hazardous guardrail.

That a passenger has no duty to keep a lookout or control the driver unless he knows or should know that such action was essential to his own safety has been established by case law. Bauer v. Johnson (1980), 79 Ill. 2d 324, 403 N.E.2d 237; Smith v. Bishop (1965), 32 Ill. 2d 380, 205 N.E.2d 461; Dertz v. Pasquina (1974), 59 Ill. 2d 68, 319 N.E.2d 12.

The fact that the driver Cesar may have been drinking does not in and of itself make the passengers negligent in riding with him without evidence that such drinking had made him operate his vehicle in such a manner that reasonable persons would not have accompanied him. There is a lack of evidence that such was the case here. See Kitch v. Adkins (1952), 346 Ill. App. 342, 105 N.E.2d 527.

While we hold the State was negligent in failing to make the guardrail safe to the traveling public, it does not follow that a negligent driver may recover. However, the case of the two passengers is different. They were injured by the combined negligence of the driver (if he was negligent) and the State’s negligence. Since any negligence of the driver is not imputable to the passengers, it is axiomatic that they would have separate recourse against the driver and against the State. While an errant driver may not himself recover, yet innocent third parties may very well recover.

Both Beshel and Keller sued the driver Cesar in the Circuit Court of McHenry County. In settlement for a covenant not to sue, the Keller estate received $9,000, and Beshel $9,800.

The deceased was 20 years old, an auto mechanic and apparently generous to his parents. The law presumes substantial damage.

Claimant Beshel received injuries necessitating medical expenses of $8,487.42 and loss of income in the amount of $2,286. Some or all of his medical expenses were compensated by insurance, according to the testimony. He did not, however, produce any evidence of how much insurance was received. The Court holds that it was his burden to prove how much. The State has no way of knowing this and cannot be expected to carry the burden of proof on such a fact. Therefore, we cannot allow his medical expenses since the amount allowable would be speculation on our part, lacking proof of what he was compensated by insurance. He failed to testify to this amount. It could have been in full of the amount. We do not know.

This Court awards Claimant Beshel the total sum of $35,000, less $9,800 received in settlement and less $8,487.42 medical expenses, for a net award of $16,712.58.

This Court awards Beat R. Keller, administrator, the sum of $45,000 for the death of Robert R. Keller, from which $9,000 should be deducted making a net award of $36,000.

ORDER

Roe, C.J.

This matter comes before the Court after having heard oral argument in said cause.

The original order of the Court is hereby affirmed, and it is ordered that the award received by Claimant Reshel be increased by $4,630.85, for a net award of $21,343.43.


text:
    (No. 78-CC-2139
    Rolla Ambrose, Claimant, v. The State of Illinois, Respondent.

      Order filed March 1, 1982.

      Order on motion to reinstate filed March 13,1984.

    Rolla Ambrose, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Hans G. Fla-dung, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This matter coming on to be heard upon the motion of Respondent for summary judgment, and, it appearing to the Court that Claimant has received due notice, and, the Court being fully advised in the premises;

Finds that Claimant was reclassified based upon the Civil Service Commission decision and was entitled to $484.39 based upon the receipt of her reconsideration request on September 30, 1977, by the director of personnel pursuant to Rule 1 — 30 of the Department of Personnel Rules; the Court further finds that Claimant did not fulfil the necessary required prior approval of the director of personnel to be eligible for “incentive pay” from April 16, 1977, through September 29, 1977, and therefore her claim for incentive pay during that period should be denied; the Court also finds that Claimant’s allegation of changing the credible service date to September 1 in four succeeding years would amount to a thirteenth month of pay in each of the years in question, and therefore, this claim will be denied; the Court finally finds that “present cash value” is not a proper additional element of damage in a contract claim, and therefore the claim for “present cash value of the claim” will be denied.

It is hereby ordered that the motion of Respondent be and the same is hereby granted, and Claimant will be awarded $484.39 as a complete settlement of this complaint.

ORDER ON MOTION TO REINSTATE

Poch, J.

This matter coming to be heard on Respondent’s motion to reinstate this Court’s order of March 1, 1982, due notice having been given, and the Court being fully advised in the premises finds as follows:

1. That on March 1,1982, this Court granted Respondent’s motion for summary judgment in favor of Respondent with an award of $484.39 in favor of the Claimant.

2. That on November 8, 1983, this Court filed an order granting Claimant leave to file her response to Respondent’s motion for summary judgment and such response be filed within 14 days of this order.

3. That Claimant has failed to file her response to Respondent’s motion for summary judgment and on February 1,1984, Respondent verified that Claimant had not complied with the order granting Claimant leave to file said response.

4. That Claimant has been given ample time to comply with the order of November 8,1983.

5. That this Court in its order dated November 8, 1983, vacated the order of March 1, 1982, granting summary judgment in favor of the Respondent pending resolution of the issues raised by Claimant.

6. That Claimant has failed to file her reply and the order of this Court of March 1,1982, is reinstated.


text:
    (No. 78-CC-2280
    Doris Sharpe, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 2, 1984.

    Jerome F. Lopinot, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This is a claim for damages due to the basic changes made by the Respondent, the Illinois Department of Transportation, to Highway 161 in the vicinity of the Claimant’s residence in 1977.

A hearing was conducted before Commissioner Richard H. Parsons, who heard testimony of witnesses, and received evidence and the briefs and arguments of counsel. The commissioner has duly filed his report, together with the transcript, exhibits and briefs now before us.

This is a drainage case. There is no dispute between the parties concerning the basic characteristics of Claimant’s house or its location with reference to Highway 161.

The house faces North Avenue and is a two-story brick structure.

The address of Claimant’s property is 72 Highview Lane, Belleville, Illinois; and Highview Lane is on the north side of the property and runs east and west, coming to a dead end at the western edge of Highway 161’s right-of-way.

Claimant’s driveway, running north and south, is along the eastern edge of said property and immediately adjacent to the western edge of Highway 161, which runs in a northerly and southerly direction.

The surface of the highway is on a higher level than Claimant’s property, and at this point there is . a long gradual slope, sloping downward to the north.

Approximately 1,000 feet north of the Claimant’s property, Ogal Creek runs under Highway 161 and extends in an easterly and westerly direction.

Prior to the year 1977, Highway 161 was a two-lane highway. Running parallel to the highway on the west side and between the highway and Claimant’s property was what was described as a gutter.

James Easterly, a registered civil engineer employed as a supervisor for the Department of Transportation construction office in Fair view Heights, Illinois, testified that the gutter existed prior to the year 1977 and that it flowed to the north.

The Department of Transportation in 1977 made improvements on Highway 161 which included the addition of two lanes east of the existing old lanes, the resurfacing of the existing lanes and three other changes, the first change being the addition of a shoulder to the highway on its west edge which, according to the testimony, covered the gutter, and no provisions were made to replace the gutter. The second change was that the two culverts under the highway which had emptied into the gutter were extended by 40 to 50 feet, bringing the end of the culvert 40 to 50 feet closer to Claimant’s property and no longer emptying water in its former path to Ogal Creek. The third change was that several hundred thousand cubic yards of dirt was rearranged on the east side of the highway, causing additional waters to flow through to the culvert.

Pursuant to testimony, the water flow was increased by seven percent through the culverts. The State offered no rebuttal to the fact that Claimant stated there had never been any flooding or water problems at her location prior to the changes made by the Respondent.

Respondent’s witnesses admitted that these conditions existed when they were called to the location in 1977 after the changes to Highway 161 were completed. They further admitted that the contractor attempted to provide a rock baffle for water coming through the culverts and also that the Claimant was compensated for mud in her house and that rock was hauled to her driveway because of mud and silt left by the flooding waters.

Claimant testified that on every occasion since 1977 when it rained, water poured through the culverts and would overflow her driveway and into her house and later through the east wall and cause erosion throughout her yard with silt deposits up to eight inches, and that a rock retaining wall collapsed because of the flooding waters, her septic tanks are constantly full, and foundation structural damage and interior damage to the low level of her house has resulted.

Claimant having proved damages in the amount of twenty eight thousand three hundred sixty three and 21/100 ($28,363.21) dollars arising from the State’s negligent maintenance of its drainage facilities.

Claimant is hereby awarded damages in the sum of twenty eight thousand three hundred sixty three and 21/100 ($28,363.21) dollars.


text:
    (No. 78-CC-2305
    Walter F. Sass, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 27, 1984.

    Richard L. Cooper, for Claimant.

      Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant has filed a two-count complaint against the State of Illinois to quiet title and for a writ of possession to land over which the State had purchased an easement for highway purposes in 1932.

The history of the case is as follows:

In 1976 Claimant filed a complaint in the Circuit Court for the 16th Judicial Circuit, Kane County, Illinois, against Langhorn Bond, then Secretary of the Department of Transportation of the State of Illinois. The action purported to be against Langhorn Bond personally and asked for the same relief as is asked for in the case now pending in this Court, viz.:

Count I

“Wherefore, Plaintiff prays as follows:
1. That Plaintiff’s title to the real estate hereinbefore described may be quieted, established and confirmed by Decree of this Court.
2. That the above-named Defendant, his successors and assigns, and all persons claiming or hereafter claiming any interest in said premises, by, through or under him or his successors and assigns, be barred and forever precluded from asserting or claiming any interest, right to title in or to said premises, or any part thereof, adverse to the Plaintiff or his title hereto.
3. That the Plaintiff may have such other or further relief or different relief as the Court may deem just, and
4. For his costs.”

Count II

“Wherefore, Plaintiff prays judgment for the possession of said premises.”

The language of paragraphs 4 through 12 of Count I of the instant complaint is identical to the language of paragraphs 1 through 9, Count I, of the circuit court complaint, and the language of paragraphs 1 through 3 of Count II of the instant complaint is identical with the language of paragraphs 1 through 3, Count II, of the circuit court complaint.

In the circuit court proceedings the Attorney General argued that the suit was in fact a suit against the State of Illinois, and that the circuit court had no jurisdiction to hear it.

The circuit court ruled in favor of Claimant with respect to the legal and factual issues, and the Attorney General appealed to the supreme court of Illinois.

The supreme court in Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975, held that the action, although nominally against an officer of the State of Illinois personally, was in fact an action against the State, that the circuit court had no jurisdiction to hear it, and that the proper forum was the Court of Claims of the State of Illinois. Justice Moran wrote a dissenting opinion.

The parties have stipulated that no hearing of this case need be held before a commissioner of this Court, that the trial record of the trial in the Kane County Circuit Court shall serve as the trial record in this case, and that the briefs filed by the parties in the supreme court of Illinois shall serve as the briefs in this cause.

The facts are as follows:

On August 10, 1932, Michael Hays and Thomas E. Katon executed a dedication of right of way for public road purposes over approximately 12.195 acres situated in Kane and McHenry Counties, Illinois, in favor of “The People of the State of Illinois”. The dedication recited that the land was dedicated to the people of the State of Illinois “for the purpose of a public highway”. The State of Illinois paid Hayes and Katon $6,500.00 cash and other valuable consideration for the easement. Pursuant to this dedication, the State constructed a highway bypass connecting U.S. Route 20 and Illinois Route 47 in Kane County, Illinois, over a portion of the dedicated property. The property upon which the bypass was constructed, 1.307 acres, is the subject property of this appeal.
In 1957, Claimant, Walter F. Sass, purchased certain real estate in Kane County, Illinois, including the fee simple title to the property upon which the bypass was constructed pursuant to the dedication by Hayes and Katon. At the time of Sass’ purchase, he was aware that the property in question was burdened by an easement in favor of the people of the State of Illinois for public highway purposes, having been so advised by Chicago Title and Trust Company.
Subsequent to Sass’ purchase of the property, the Department of Transportation (successor to the Department of Public Works and Buildings, hereinafter Department), the department of State government charged with construction and supervision of State highways, determined it to be in the public interest to realign the intersection of Routes 47 and 20 in Kane County. As a result of the realignment, the bypass constructed on the easement in question was no longer presently necessary.
In approximately 1974, Sass indicated to the Department his desire to acquire the State’s easement interest in the property. When a negotiated settlement could not be reached, Sass approached an Illinois State representative and had a bill introduced into and enacted by the legislature (P.A. 79-1020) providing for release of the State’s easement upon payment of the fair appraised value for the State’s interest. In accordance with the terms of the Act, passage of which was initiated by Sass, the Department had the property appraised and wrote Sass informing him of the fair appraised value of the easement and requesting payment. Sass refused to pay the appraised value. As a result of Sass’ refusal to pay the fair appraised value, the condition precedent to vacation of the State’s easement contained in P.A. 79-1020 has not been fulfilled.
In September, 1976, Sass filed suit in the Circuit Court of Kane County seeking to quiet title to the property burdened by the easement and for a writ of possession. The only defendant was Langhorn Bond, then Secretary of the Department. (Prior to trial, John Kramer, Bond’s successor, was substituted as the sole defendant). No relief was sought against the defendant individually. The attorney representing Bond filed a motion to dismiss, alleging that the Circuit Court of Kane County was without jurisdiction to hear the case by virtue of the Sovereign Immunity Act (Ill. Rev. Stat. 1975, ch. 127, par. 801). Defendant’s motion was denied. Defendant then filed an answer and affirmative defense again raising the issue of sovereign immunity.
John Cullian, employed by the Department as right-of-way engineer, was called by Sass pursuant to section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 60; now Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1102.) Cullian testified that the bypass road was not currently being used for a highway, but that the Department had not foreclosed its future use for highway purposes.
Evidence was introduced on Kramer’s behalf that the fair appraised value of the property, pursuant to P.A. 79-1020, was $4,575.00. There was no dispute that Sass has not paid the sum required by P.A. 79-1020 in order to vacate the easement.
On September 7,1977, the trial judge, ruling in favor of Sass, issued an order quieting title in Sass, extinguishing the rights of the people of the State of Illinois in the easement, holding P.A. 79-1020 unconstitutional, and issuing a writ of possession in favor of Sass for the property, the writ being stayed pending appeal to the Illinois Supreme Court.

As summarized by Claimant in his brief filed in the supreme court, the trial court’s order found that:

“1. Fee simple title to the property in question is in the Plaintiff and for many years was subject to an easement for highway purposes and so used.
2. The easement was physically abandoned in recent years and that the House Bill above-mentioned confirmed the abandonment.
3. The property is in a rural area.
4. The Defendant Secretary has refused to deliver possession of the property to the Plaintiff until he pays a sum of money to the State, declared by its appraiser to be the value of the property.
5. The said House Bill is unconstitutional and void in that it deprives the Plaintiff of his property without due process of law, and, further, that the Bill is special legislation with respect to a subject covered by a general statute of the State.”
Brief of PlaintiffAppellee 2, 3.

Findings Nos. 1, 3, and 4 above are not disputed by the parties, and since the parties have adopted the trial record in the circuit court as the trial record before this Court it would appear that there remain two issues before this Court:

I. Whether House Bill 2376 (P.A. 79-1020) is a constitutional enactment of the General Assembly.

II. Whether the easement for highway purposes was in fact at some time physically abandoned by the State of Illinois.

DISCUSSION

I. Is P.A. 79-1020 unconstitutional?

Unfortunately for Claimant, this Court has no power whatsoever to pass upon the constitutionality or legality of an act of the State legislature. Regardless of how crucial the issue may be to Claimant’s case this Court has no power to decide it.

In Gossar v. State (1961), 24 Ill. Ct. Cl. 183, this Court came to grips with the question of whether it had the power to pass upon the constitutionality of acts of the legislature, and in an opinion, the logic of which cannot be questioned, came to the conclusion that it had no such power. In Gossar, a majority of the Court first wrote an opinion upholding the constitutionality of sections 22 — 1 and 22 — 2 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, pars. 439.22 — 1, 439.22 — 2), these two sections having been enacted by House Bill No. 552 of the 70th General Assembly of the State of Illinois. Justice Wham wrote a minority opinion finding House Bill No. 552 unconstitutional. On rehearing, the entire Court expunged both opinions from the record and wrote a final opinion in which it held that this Court cannot pass upon such a question.

While considered in its most narrow aspect the question before the Court was whether it could pass upon the constitutionality of any of the provisions of the Court of Claims Act as enacted by the legislature, the Court in its opinion addressed the question of its power to pass upon acts of the legislature generally.

“The petition for rehearing has reopened this case for the consideration by the Court, and, although the petition limits the inquiry to the matters therein contained, the Court, on its own motion and before turning to the petition, believes that it must resolve the question of its jurisdiction to approve or strike down an act of the Legislature.” Gossar v. State (1961), 24 Ill. Ct. Cl. 183,193. (Emphasis added.)

The Court outlines the history of claims against the sovereign in Illinois commencing with the first act making possible such relief passed by the legislature in 1819 and bringing the discussion up through 1961, concluding that the present Court of Claims, although called a court, is not a constitutional court.

“If then it be admitted that the Court of Claims is in fact a commission or fact finding body for the convenience of the Legislature in sifting out and reporting back to the Legislature meritorious claims, so that, in turn, the Legislature may make the necessary appropriations, then it is crystal clear that any opinion of this Court purporting to find House Bill No. 522 either constitutional or unconstitutional would be in complete violation of Article III and Article VI, Section 1, of the Constitution.” Gossar v. State (1961), 24 Ill. Ct. Cl. 183,196.

The portions of the 1870 Constitution referred to in the quotation above are now article II and article V, section 1, respectively, of the Constitution of 1970.

Continuing, the Court states:

“When the Court of Claims hears and determines the merits of a claim, and thereafter files its report with the Legislature, it is clearly exercising a quasi-judicial function.
When it is called upon to pass on the constitutionality of an act of the Legislature, it is manifestly clear that it is attempting to perform a judicial function of the highest order, and, being a commission of the Legislature, rather than a component part of the judicial department, it would violate Article VI, Section 1 of the Constitution.” Gossar v. State (1961), 24 Ill. Ct. Cl. 183,197.

We are thus forced to the conclusion that since this Court cannot pass upon the constitutionality of P.A. 79-1020, and since the supreme court has held that under the circumstances of the case then before it, it could not do so either, P.A. 79-1020 remains a valid enactment of the General Assembly and Claimant is subject to its provisions.

II. Was the easement abandoned by the State prior to enactment of P.A. 79-1020?

A puzzling facet of the case still remains unsolved. Judge Puklin of the Kane County Circuit Court found that the State had in fact abandoned the easement prior to the enactment of P.A. 79-1020. If such is true could it be argued that — apart from questions of constitutionality — the Act at the time of its enactment was moot and of no effect, a nullity? In other words, if the State no longer had any interest in the real estate, there would be no foundation for a statute providing that the State would surrender the real estate upon payment for the same, and the statute, therefore, would be of no effect. To ask this Court to make such a finding is again to ask it to pass upon the validity of an act of the General Assembly. It would seem that for this Court to determine that an act of the General Assembly is invalid for whatever reason is beyond its powers.

Finally, while the evidence in the trial court record establishes nonuse of the easement by the preponderance of the evidence, in the opinion of the undersigned the record does not necessarily establish by the preponderance of the evidence the required abandonment.

As put by Respondent in its brief in the supreme court:

“Abandonment, which may also serve to extinguish a written easement, implies an intentional relinquishment of ownership, possession, or control of property without regard to future possession, 1 C.J.S. Abandonment, Section 1. Thus, there are two requisites to a finding of abandonment: an intent and an external act. Mere nonuse of the property is not in itself sufficient to prove abandonment.
‘The question of abandonment is one of intent to be determined from the evidence and there is no abandonment unless the premises are left with an intention of not again resuming possession.’ Burns v. Curran, 275 Ill. 448, 453 (1916).
The record clearly indicates that the State of Illinois had no intention to abandon its rights and had not abandoned or released its rights to this easement. Thus, one necessary prerequisite to abandonment was lacking.
John Cullian, the right-of-way engineer for the Department, testified as follows:
‘The Department claims that they have a right by way of dedication which was entered into evidence here, for the use of this property for highway purposes. They shall retain that right until they release it... . It’s not being used. It’s possible at some future date they will change the intersection again and use it.’
He further testified:
‘Q. The Department’s position is until the appraised value is paid it is still the State’s highway?
A. That is correct
‘Q. Is that your position?
A. Yes.’ ”
Brief for Defendant-Appellant 20, 21.

For the reasons stated above, it is our decision that this claim must be, and hereby is, denied.