author: Raucci, J. JANN, J.

text:
    (No. 86-CC-0892
    Bristol Steel Corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 13, 1990.

      Order filed June 29, 1993.

    McDermott, Will & Emery (John R. Doyle, P.C., of counsel), for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (Erin O’Connell and Robert J. Sklamberg, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Raucci, J.

This cause comes before us on cross-motions for summary judgment directed to Counts II and III of the complaint. We have considered the briefs and oral arguments of the parties. During oral argument, both parties stipulated that there were no contested material facts and that disposition by summary judgment was appropriate.

In April of 1979, the Claimant (then known as Mississippi Valley Structural Steel Company) entered into a contract with the Respondents Illinois Department of Transportation (hereinafter IDOT) for the provision and fabrication of a metal bridge over the Illinois River in Pekin, Illinois. The contract price was $26,872,518. The contract provided that the bridge was to be completed within 300 working days.

The bridge was completed after 381 working days, with IDOT assessing 71 of the additional days as being the fault of the Claimant. Pursuant to a liquidated damages provision of the contract, IDOT assessed 71 days at $4,200 per day, for a total of $298,200 against Claimant.

Claimant has filed a three-count complaint. Count I, which is not involved in the instant motions, asserts that Bethlehem Steel Corporation supplied defective materials (and behind schedule) that resulted in a 39-working-day delay and an additional “57 day delay” in fabrication which resulted in a delay of the same time in completion of the bridge. Consequently, Claimant claims the $298,200.

Count II asserts that IDOT is entitled to liquidated damages “only to recover any increase in engineering and supervision costs” as a result of the delay, and that the $298,200 withheld is not for such costs.

Count III asserts that the liquidated damages provision is a penalty and not enforceable.

A liquidated damages provision is not enforceable unless:

1. the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and

2. the harm is incapable or very difficult of accurate estimation.

See Bauer v. Sawyer (1956), 8 Ill. 2d 351, 359, 134 N.E.2d 329, 333.

The affidavit of Russell H. Baker, chief accountant for IDOTs bureau of construction in the division of highways states that IDOT “had no way of projecting the additional engineering/supervisory costs” of delay.

The affidavit additionally sets forth the result of Bakers review of IDOT s records relating to the relationship of engineering/supervisory costs to total highway construction by contract costs. He states:

“The average percentage of engineering/supervisory costs of construction contracts in excess of $500,000 for the calendar years 1979 through 1982 is 4.61%.”

The Baker affidavit further establishes the per day cost of the 300-day contract at $89,575 ($26,872,518 -r 300).

A per day charge of $4,200 is 4.69% of $89,575. We. conclude that $4,200 per day is a reasonable forecast of just compensation for the harm caused by the breach.

We further conclude that the harm is incapable or very difficult of accurate estimation.

Bakers assertions on the above matters are unrefuted.

The Claimant’s motion for summary judgment should be denied. The Respondent’s cross-motion for summary judgment should be granted.

Nothing in this opinion should be construed as reflecting upon the allegations of Count I.

It is therefore ordered that

1. Claimant’s Motion for summary judgment is denied.

2. Respondent’s cross-motion for summary judgment is granted, and Counts II and III are dismissed.

3. This cause is remanded to the commissioner for further proceedings on Count I.

ORDER

JANN, J.

This matter is before the Court upon the joint stipulation of the parties. This claim is founded upon, a contract and is before us pursuant to section 8(b) of the Court of Claims Act. Ill. Rev. Stat. 1987, ch. 37, par. 439.8(b).

The Court finds that in April of 1979, the Claimant (then known as Mississippi Valley Structural Steel Company) entered into a contract with the Respondent Illinois Department of Transportation (hereinafter IDOT) for the provision and fabrication of a metal bridge over the Illinois River in Pekin, Illinois. The contract price was $26,872,518. The contract provided that the bridge was to be completed within 300 working days.

The Court further finds that the bridge was completed after 381 working days, with IDOT assessing 71 of the additional days as being the fault of the Claimant. Pursuant to a liquidated damages provision of the contract, IDOT assessed 71 days at $4,200 per day, for a total of $298,200 against Claimant.

We note that the parties hereto have agreed to a settlement of this claim, and that Respondent, State of Illinois, has agreed to the entry of an award in favor of Claimant Bristol Steel and Iron Works, Inc., in the amount of $65,604. Sufficient road fund (011) money was available to cover the settlement.

Based on the foregoing the Court hereby approves the settlement and the Claimant Bristol Steel and Iron Works, Inc., is hereby awarded the sum of $65,604, in full and final satisfaction of the claim herein.


source: Caselaw Access Project

author: Patchett, J.

license: Public Domain

text:
    (No. 86-CC-1183
    James Lefler, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1993.

    Hamm & Hanna, Ltd., for Claimant.
    Roland W. Burris, Attorney General (Verne Dentino, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This is a claim brought by a former resident of the Vienna Correctional Center for personal injuries he sustained on or about August 31, 1985. As a resident of Vienna Correctional Center, he was taken to a swimming lake, where he and other inmates had recreation.

The facts are disputed as to any warnings which may have been given to the Claimant. The Claimant contends that he received no instruction that there was no diving allowed from the shore. The Respondents swimming instructor claimed that the inmates were given this instruction by the bus driver or swimming instructor every time while en route to the recreational area. On this particular day, there were approximately 20 inmates on the bus. .

The Claimant testified that this was the first time he went to the recreational lake; however, a swimming instructor, Stanley Davis, stated that the Claimant had been at the recreational lake several times. However, it is undisputed that the Claimant had been at the correctional center for less than a week, and no documentary evidence was offered by the Respondent to prove that the Claimant had been at the lake before.

It is also undisputed that Stanley Davis, the swimming instructor, was the first to dive in from the shore, and that another aide was the second person to dive in from the shore. The Claimant, who was the third person to dive in, struck his head and body on the bottom of the lake. There were no signs prohibiting diving from the shore. One of the swimming aides allegedly told the Claimant that he could dive from the shore from this one area.

Stanley Davis' testimony further verified that the Claimant did sustain an injury. Medical reports of the Respondent also demonstrate physical injury to the Claimant consistent with the accident. The Claimant experienced a compression fracture involving the C-7 vertebrae, associated with the widening of the disk space between C-6 and C-7. Respondent’s doctors prescribed a cervical collar and limited activities, together with various pain medications over an extended period of time. Claimant testified that he continues to experience stiffness and soreness in the neck area, which is further aggravated by his present work.

Claimant may have been held to assume the risk if it had been “an obvious and ordinary risk.” (Fleischner v. State (1983), 35 Ill. Ct. Cl. 799.) The State contends that the Claimant assumed the risk because it was a normal, obvious and ordinary risk, but at the same time the State admits that it did have notice that the water was too shallow for diving.

When the State is assigned an inmate for duties under the direction of the State, he becomes the State’s agent to the extent of his functions. (Goodrich v. State (1984), 36 Ill. Ct. Cl. 326.) The fact that inmate Davis was assigned by the State as a swimming aide/instructor and dove into the water immediately prior to the Claimant establishes by a preponderance of the evidence that the negligence of the State was a cause of the injury. In addition, there were no signs warning not to dive in from the shore. The State was further negligent in failing to provide warning signs, and failing to instruct the Claimant that there was to be no diving from the shore. This negligence was also the proximate cause of the Claimants injuries.

Despite the fact that the Claimant had a compression fracture of the C-7 vertebra, and he continues to take pain medication, he is able to hold down a job requiring a significant amount of physical exertion. It is very difficult to quantify damages that the Claimant has suffered. However, we believe the State was negligent, and we award the Claimant the sum of $12,500 for his injuries.


author: Sommer, J. Sommer, J. Sommer, J.

text:
    (No. 86-CC-1825
    Morris Upton and Deborah Upton, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 29, 1991.

      Order filed December 2, 1991.

      Order filed October 5, 1992.

    Spinak, Levinson & Associates, for Claimants.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This claim was heard by Commissioner Turner on July 18, 1989, and heard in oral argument before the full Court on December 6,1990.

At the hearing before the commissioner, the Claimants, the Uptons, testified as to a sequence of events which are described in the next few paragraphs.

On January 11, 1984, Morris and Deborah Upton were in their 1981 Buick Regal. Morris Upton was driving and Deborah Upton was a passenger in the front seat. The time was approximately 7:00 a.m., and they were on their way to Morris Uptons place of employment at Hines Hospital at Fifth and Roosevelt in Maywood, Illinois. The Uptons were driving east on the Eisenhower Expressway, also known as 1-290. When the car was in the middle of the Cicero Avenue underpass, a large piece of concrete approximately three or four feet long hit the front of the car. Several other pieces hit the hood and then hit the windshield causing the windshield to shatter. Mr. Upton lost control of the car and slammed into the guardrail. Both Morris and Deborah Upton were injured.

The Uptons did not notice anyone on the overpass at the time this incident occurred. Also, there was no construction taking place and there were no warning signs regarding any hazard. The car was greatly damaged on the left bumper, the headlights were broken and the front grill was gone. There were pieces of concrete from the bridge lying on the highway and a large piece of concrete was imbedded in the hood.

After the incident, Mr. Upton drove the car to .a police station and made a police report. Mr. and Mrs. Upton took a cab from the police station to a medical clinic in their neighborhood where they saw a doctor.

Approximately 3Vi hours later, Mr. Upton went back to the bridge with a lawyer. Mr. Upton saw pieces missing from the bottom of the oveipass. Also, the debris was still on the highway. According to Mr. Upton, there was no plywood on the underside of the bridge. No pictures were taken of the overpass or the car.

The Claimants called Thomas Henry Warnock as a witness on their behalf. Mr. Warnock is a civil engineer with the Illinois Department of Transportation. From 1968 to the present, Mr. Wamocks duties have been to inspect bridges for the Illinois Department of Transportation. In 1979, he inspected the bridge which was the subject of this lawsuit and found that the bridge was in poor condition. In his report, he noted that the entire underside of the bridge was covered with plywood. The plywood was there to protect the cars traveling under the bridge from being struck by concrete which might fall from the deteriorating underside of the bridge, primarily at the longitudinal joints. In 1981, Mr. Warnock inspected the same bridge. He found the bridge to be in worse condition than in 1979. In his report at the time, Mr. Warnock noted that pieces of concrete were breaking out at the longitudinal joints, but that plywood was underneath the bridge to prevent the concrete from falling on the cars below. Mr. Warnock inspected the bridge in 1983. He again found that the bridge was in poor condition and that plywood was on the bottom of the bridge to prevent pieces of concrete from falling on cars beneath the bridge. In 1984, the bridge was inspected by another employee of the Illinois Department of Transportation. This inspection found that the bridge was in poor condition at the longitudinal joints. In 1985, Mr. Warnock again inspected the bridge and found it to be in the same condition. Neither the 1984 or 1985 inspections mentioned the plywood.

Robert Thurmaier testified on behalf of the Respondent. He is a maintenance field engineer for the Illinois Department of Transportation. On July 29, 1985, he inspected the bridge which is the subject of this claim. He looked at the underside of the bridge. He found that there was plywood flush under the bridge deck, including the longitudinal joints. During his inspection he did not see any pieces of concrete missing from the bottom of the bridge. He stated that no patch work had been done to the bridge after the incident involving the Uptons to the best of his knowledge. Further, he stated that the “force under my control, which is the bridge group” had done no patch work on the bridge.

The State is not an insurer of accidents that occur on its highways. In order to recover, a Claimant must show that the condition of the highway was hazardous and the proximate and direct cause of the accident, and this must be proved by the preponderance of the evidence. Kavalauskas v. State (1963), 24 Ill. Ct. Cl. 361.

This Court has before it only the Claimants’ unsupported testimony as to how the damage occurred and the cause thereof. Such unsupported testimony is not sufficient in this claim, when weighed against the State’s evidence, to establish by a preponderance of the evidence the Claimants’ version of how the damage occurred and the cause thereof, and to extrapolate therefrom a finding that the State was negligent. The presentation of evidence in this claim is different from Robinson v. State (1981), 35 Ill. Ct. Cl. 185, a very similar case cited by the Claimants. In Robinson, supra, there were corroborating witnesses as to how the damage was caused, to the fact that pieces were missing from the underside of the bridge and to the fact that the plywood was missing.

In this claim the Claimants produced no independent eyewitness testimony of the mishap and its effects, no physical evidence, and no photographs of the bridge then or now, or of the damaged car to support their version of the facts. The Claimants did not produce an insurance estimate or other document from an auto repair shop to demonstrate that the car had been damaged in the manner they described. No explanation was given for the lack of any corroborating evidence. The lack of corroborating eyewitness testimony, physical evidence, repair documents or photographs is highlighted by the fact that hours after the accident, the Claimants returned to the scene with an attorney. No photographs were taken, and the attorney who went to the scene with the Claimants was not called to testify about what he or she observed.

The State of Illinois produced evidence that showed that, before and after the accident, plywood covered the underside of the bridge, flush against it, thus making it very difficult for any concrete to fall on the cars underneath the bridge. There was no direct evidence that the plywood had been removed and then replaced during the intervening period, though the 1984 and 1985 reports did not mention the plywood while the previous reports had. In 1985, the bridge was inspected by Mr. Thurmaier and he testified that there were no missing pieces visible and no signs that patching had been done on the underside of the bridge. Mr. Thurmaier was in charge of the group that would have undertaken repairs, and he testified that no repairs had been undertaken and that the plywood was in place.

It is the finding of this Court that the Claimants have failed to prove their claim by a preponderance of the evidence. Therefore, it is ordered that this claim be denied.

ORDER

Sommer, J.

This cause coming to be heard on the request of the Claimants for a rehearing of their claim, due notice having been given, and this Court being fully advised in the premises, finds that in an opinion filed May 29, 1991, this Court denied the present claim, and that the Claimants’ request for a rehearing is timely under our rules. The claim was denied because the only evidence of the occurrence and the cause of the occurrence was the statements of the Claimants. There was no evidence in corroboration of the Claimants’ statements.

We carefully examine requests for rehearings and have granted such when new evidence can prove a claim that lacks only the new evidence to be proved. (Anderson v. State (1957), 22 Ill. Ct. Cl. 413, 421.) It is therefore ordered that the commissioner conduct an informal hearing and report to the Court as to whether new corroborating evidence is genuinely available and whether such could change the conclusions of the Court in its opinion filed in their claim.

ORDER

Sommer, J.

This cause coming to be heard on the order of this Court dated December 2, 1991, in which this Court granted the Claimants an opportunity to present additional evidence, due notice having been given, and this Court being fully advised, finds that the Claimants failed to appear at the hearing set by the commissioner and no explanation of such failure to appear was given by the Claimants. It is therefore ordered that the order of December 2,1991, is revoked and this claim is dismissed.


author: Burke, J.

text:
    (No. 86-CC-2761
    Darryl Chiestder, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 30, 1993.

    Jan Susler, for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

On May 24, 1985, Claimant was an inmate at State-ville Correctional Center when prison employees ordered him to cut weeds in a drainage ditch despite Claimants protest that the working conditions were unsafe. While cutting the weeds, Claimant suffered a fractured ankle and seeks compensation for lost wages, bodily pain and mental anguish. He bases his claim for $30,025 on the following:

1. $25 for two months lost from his prison job assignment.

2. $5,000 for loss of future earnings from not being able to return to his occupation as a maintenance man after his release from prison.

3. $10,000 to compensate for the injury to his ankle which he claims will prevent him from ever running, climbing or exercising without pain.

4. $15,000 to compensate for bodily pain and mental anguish.

The evidence showed that Claimant suffered an injury to his ankle on May 24, 1985, had his ankle placed in some type of cast, was given medication for pain and ordered to use crutches when walking.

Claimant relied upon a number of cases where the Court held that the State was negligent in failing to meet its duty to provide safe working conditions. (Morris v. State (1959), 23 Ill. Ct. Cl. 91; Reddock v. State (1978), 32 Ill. Ct. Cl. 611.) These cases do not support Claimants position.

In Goodrich v. State (1984), 36 Ill. Ct. Cl. 326, a prisoner was injured after being thrown from a pick-up truck which he was ordered to ride in after a prison picnic. The Court found that the State, through its agent, was negligent and the Claimant was entitled to an award because of his relationship to the supervisor and his situation as a prisoner. The prisoner had no real choice but to follow orders. In York v. State (1981), 35 Ill. Ct. Cl. 67, a prisoner was burned over his face and hands when a stove he had to light during his duties as a prison cook exploded. In this case, the State conceded that it failed to maintain the oven in a safe condition and that its negligence was the sole and proximate cause of the claimants injuries. The Claimant, in the case at bar, claims the State’s failure to keep the workplace (the drainage ditch) in a safe condition was the proximate cause of his injuries.

The Court has long held that the State owes a duty to prisoners employed by the prison to maintain a safe workplace, whether that workplace is a workshop, a kitchen or a drainage ditch. Claimant expressed concern about working in the ditch and its potential hazards, but was ordered to proceed. Fearing disciplinary measures for failure to follow orders, the Claimant entered the ditch and performed the work as instructed. As a result, he sustained an injury to his ankle. The State breached its duty in not providing a safe workplace for the Claimant.

The Claimant received medical attention for his injuries and the required time off to allow him to recuperate. His claim of $30,025 is not substantiated by the evidence.

It is hereby ordered that the Claimant is awarded $2,500 in full and complete satisfaction of this claim.


author: Burke, J. Burke, J.

text:
    (No. 86-CC-3299
    Robert C. Lindsey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 22, 1989.

      Order filed August 18, 1992.

    Robert C. Lindsey, fro se, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (Kimberly L. Dahlen, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Burke, J.

This cause coming to be heard upon Claimants petition for rehearing and the Court being fully advised in the premises,

It is hereby ordered that Claimants petition is hereby denied.

OPINION

Burke, J.

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

Finds that on November 28, 1984, Claimant was ordered from his cell at Menard Penitentiary to the Menard health care unit. Upon arrival, he was advised that his personal property would be removed from his cell and transferred to the personal property office. When Claimant was released from the health care unit on December 28, 1984, certain of his personal property valued at $477.04 was missing.

The property missing was as follows:

a) Panasonic AM-FM radio, $29.51.

b) Panasonic cassette player, $31.74.

c) Panasonic color T.V., $303.75.

d) York AM-FM cassette player, $83.97.

e) Mura headphones, $16.85.

f) Mobolite desk lamp, $11.22.

The departmental report indicates that Claimant was admitted to the infirmary on December 5, 1984, at approximately 9:30 p.m. and released December 26, 1984. On December 22, 1984, Claimant signed an inmate personal property receipt which indicated, “I have received all of my personal property.” A resident personal property inventory record for Claimant was also made out on December 22, 1984. The inventory did not list the radio, cassette player, color T.V. or lamp. Additionally, Claimants original grievance listed a Royal 440 typewriter and no T.V., but in the Court of Claims, no claim is made for the typewriter and a claim is made for a missing color T.V.

The departments Rule 535.100(b) indicates that the shift commander should have inventoried and packed the property before his shift (11:00 p.m. on December 5, 1984) and stored same in a designated area. The inventory by the cell officers was dated December 22, 1984, the same date Claimants property was returned to him.

Claimant had little time to look over his property when it was returned. The boxes were taped and he thought the typewriter was missing, but found it in the T.V. box, hence the T.V. was missing. His initial grievance was filed quickly in an effort to retrieve his property if stolen. He had serial numbers for the property if it was recovered during a shakedown. Claimant returned to the property section where the officers claimed no responsibility since they did not pack the property.

In the present case under Rule 535.100(b), the State had a duty to accurately inventory the Claimants property, pack it and store it before the end of the shift between 9:30 p.m. and 11:00 p.m. The State failed to do this on December 5, 1984. Claimant had a cellmate and believed the property stolen. Under the Courts reasoning in Owens v. State (1985), 38 Ill. Ct. Cl. 150, claimant cannot recover because there is no proof (other than for the radio) that the property ever came into the exclusive possession of the State. However, the present case can be distinguished based on the proof of the States duty to inventory, package and store the property and the unreasonable delay of the State in taking 17 days to perform its duty. The State has admitted in its departmental report that it did not follow its own rules. Thus, it appears that under the State’s duty, a constructive bailment was created. The interests of justice require that the State should have inventoried, packed and stored Claimant’s property on December 5, 1984. (Lewis v. State (1985), 38 Ill. Ct. Cl. 254.) This also appears to be a case where the State can be held liable for the loss of an inmate’s property notwithstanding the existence or nonexistence of a bailment relationship. To hold otherwise would be to condone irresponsibility on the part of prison authorities. The failure to follow its own rules was negligent and led to the loss of Claimant’s property. Blount v. State (1982), 35 Ill. Ct. Cl. 790.

The Claimant also has a duty to prove damages in order to prevail. (Rivera v. State (1985), 38 Ill. Ct. Cl. 272.) The age and nature of the property must be taken into consideration in making an award. (Stephenson v. State (1985), 37 Ill. Ct. Cl. 263.) Claimant gave adequate proof of having possession of the radio, two cassette players, the headphones and the lamp. He failed to present adequate proof in regards to the T.V., although given the opportunity to do so. The $11.22 lamp was approximately one year old. The $16.85 headphones were approximately two years old. The $31.74 cassette player was approximately one year old. The $83.98 cassette player was approximately one month old. The $29.51 radio was approximately lVz years old. Each item having a five-year life; a reasonable figure for damages is $141.79. Therefore, it is ordered that an award of $141.79 is hereby entered in favor of Claimant, said award being in full and complete satisfaction of Claimant’s complaint.


author: JANN, J.

text:
    (No. 86-CC-3563
    Illinois Constructors Corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 6, 1993.

    O’Brien, O’Rourke, Hogan & McNulty, for Claimant.
    Saul Wexler, for Respondent.
   OPINION

JANN, J.

This matter is before the Court on Claimants complaint for declaratory relief, claiming a total of $191,582.70. Claimant, Illinois Constructors Corporation (hereinafter referred to as ICC), was under contract with the Illinois Department of Transportation (hereinafter referred to as the Department) to build two bridge piers for FA Route No. 412 at the Illinois River near the City of La Salle, Illinois. ICC brought this action pursuant to section 8(b) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(b)). At the close of ICC s case in chief, Respondent moved for a directed finding pursuant to section 2 — Ill. of the Code of Civil Procedure (Ill. Rev. Stat., ch. 110, par. 2 — 1110). The motion was taken under advisement and the Respondent presented its defense without prejudice to its motion. Oral arguments were heard November 12,1991.

During excavation for Pier 35 on the north side of the river, ICC encountered difficulties which it claims slowed the progress of the work and resulted in a substantial increase in cost. ICC seeks an equitable adjustment in compensation pursuant to the changed condition provision of its contract. ICC claims that it encountered subsurface conditions that differed materially from the conditions indicated in the contract documents. ICC presents its claim in the following three parts:

(1) $37,330.96 in additional costs for excavating harder material;

(2) $109,054.22 in costs for reinforcing the cofferdam and $21,467.52 for other rental charges associated with extended time for excavation operations; and

(3) $23,730 for the recovery of liquidated damages assessed by the Department.

The Respondent contends that ICC has failed to prove that the conditions it encountered constituted a changed condition as defined by the contract. Respondent maintains that ICC encountered the materials during excavation that it had reason to anticipate based upon the contract documents and pre-bid soil borings.

It is necessary to examine the scope of work required of ICC and determine the conditions actually encountered by ICC. The critical issue is whether the contract documents provide sufficient notice of the subsurface conditions encountered.

BACKGROUND — THE CONTRACT

On April 29, 1983, ICC submitted a bid in the sum of $2,675,110.82 in response to the Departments notice to bidders, specifications, proposal, contract and contract bond (hereinafter referred to as the Notice). The work described in the Notice was for “the complete construction of Piers 34 [south] and 35 [north] for the highway bridge over the Illinois River east of La Salle, in La Salle County, Illinois.”

On June 1, 1983, the Department accepted the bid by ICC and the parties subsequently entered into a contract for the work. The contract incorporated all provisions of the Notice, the plans for the project and the “Standard Specifications for Road and Bridge Construction” (hereinafter referred to collectively as the Contract).

The principal items of work, as described in the Contract, were for:

(a) the construction and later removal of temporary cofferdam;

(b) the construction, maintenance and later removal of any necessary system of protection for the main river piers during construction, excavation, furnishing and driving steel piles; and

(c) all appurtenant, auxiliary and collateral work necessary for the completion of the substructure.

The contract specified that ICC was to excavate material within the cofferdams to the elevation of 400.5 feet. The base of the seal coat of concrete was to be poured at that level. The pertinent boring logs indicated that the riverbed was at an elevation of 434.8 feet. ICC therefore needed to excavate vertically 34.3 feet.

The special provisions of the Contract has a section which describes “WORK NOT INCLUDED IN CONTRACT” That section specifies:

“Not included are the furnishing, fabricating, erecting and painting of the structural steel for the main span tied arch and the approach span superstructure, approach span piers, abutments, approach pavements, and the construction of the bridge deck.”

R.M. Schless, secretary and employee of ICC, testified that in preparing ICC’s bid he assumed that the Notice and the Contract did not require any excavation of rock. He also assumed that if rock were encountered, the Department would pay for rock excavation as a changed condition. His assumptions were based on the express exclusion of rock excavation from the scope of work for cofferdam excavation and because the Contracts schedule of prices contained no pay item for rock excavation.

At the time of bidding, Schless believed that ICC could excavate the material in the north cofferdam with soft ground excavating equipment, i.e., pump or clamshell bucket. His belief was based on low recovery rates of rock indicated in the bridge foundation boring logs (boring Nos. B-135 and B-136).

The log for Boring No. B-135 for Pier 35 describes the material at an elevation of 421.8 feet as “[m]edium, light brown, GRAVEL, broken weathered limestone with sand.” Boring No. B-136 indicates that “[m]edium to dense, brown, coarse to fine GRAVEL with sand and several 2' layers of weathered limestone” will be found at 422.3 feet. According to B-135, the material at an elevation of 413.8 is “[h]ard, light gray LIMESTONE with weathered limestone pieces, gravel and sand.” According to B-136, “[hjard, light gray LIMESTONE, with coal and sand in wash water” is at elevation 412.6.

Schless testified that rock is often encountered inside a cofferdam. He knew it was likely that rock would be encountered. He assumed, based upon the boring samples, that the material to be encountered would be loose. He believed the low percentage of recovery stated on the boring logs indicated that the rock was not solid. Because there was not a unit price for rock in the contract he further assumed that the Department would make some adjustments when rock was encountered. Schless stated that he was aware that the Departments engineer was the sole person who would make a determination as to whether rock was encountered. Contrary to his assumptions that the Contract did not require the excavation of rock, Schless also assumed that there was a ledge of limestone.

Work necessary for cofferdam excavation is described in the Contract as follows:

“COFFERDAM EXCAVATION: The work under this item includes all foundation excavation, except rock excavation, within the limits of the cofferdams, backfilling around the piers to the stream bed elevation, and disposal of excess material. The work shall be done in accordance with the requirements of Section 502 and as specified herein. (Emphasis added.)
Cofferdam excavation shall be measured in cubic yards in place within the cofferdam. The horizontal dimensions shall be the design dimensions of the concrete seal. The vertical dimensions shall be the average depth from the surface of the material to be removed to the bottom design elevation of the concrete seal.
This work will be paid for at the contract unit price per cubic yard foi COFFERDAM EXCAVATION, which price shall be payment in full for the above described work.”

The Contract provision specifies that the excavation work “includes all foundation excavation, except rock excavation, within the limits of the cofferdam.” It specifies that the work shall be done in accordance with the requirements of section 502 of the standard specifications for road and bridge construction (hereinafter referred to as Standard Specifications). The pertinent provisions of section 502 of the Standard Specifications state:

"Section 502.3 General.
e * tt
COFFERDAM EXCAVATION, when specified, shall include all excavation within the limits of a cofferdam, except rock excavation.
# # #
Rock Excavation for Structures shall consist of the excavation of boulders cubic yard in volume or greater and all rock in ledges, bedded deposits and conglomerate deposits so firmly cemented as to present all the physical characteristics and difficulty of removal of rock as determined by the Engineer. Alter the Engineer has made the determination that the material qualifies as rock excavation, the Contractor may use any method he chooses including ripping to remove the rock excavation.” (Emphasis added.)
“502.16 Basis of Payment.
* * *
Structure Excavation and Cofferdam Excavation, when specified, will be paid for at the contract unit price per cubic yard for STRUCTURE EXCAVATION and COFFERDAM EXCAVATION, measured as specified herein® ° °
When material classified as Rock Excavation for Structures is encountered and [ ][w]hen the contract does not contain a unit price for Rock Excavation for Structures, it will be paid for as extra work in accordance with Article 109.04.” (Emphasis added.)

The provisions refer to section 109.04 when rock excavation for structures is encountered and there is no unit price for rock excavation.

Section 109.04 of the Standard Specifications states that the extra work will be paid at a price agreed upon by the contractor and the Departments engineer or on a force account basis.

Mr. Cecil Gatewood, the Departments resident engineer, testified that he did not participate in the preparation of the bidding documents and could not explain why there was no pay item for rock excavation. He stated that work performed without a pay item would be paid under a force account basis, as was done in this instance.

SUBSURFACE CONDITIONS ENCOUNTERED

A geotechnical engineer hired by ICC, Safdar A. Gill of STS Consultants, Ltd., prepared two alternative designs for the cofferdams, labeled Scheme A and Scheme B. In so doing, he reviewed the boring logs. Scheme A assumed the steel sheeting could be driven below the base of the seal coat of concrete to elevation of 400.5 (feet above sea level). Scheme B assumed that the sheeting would meet refusal at the limestone shown in boring logs, at elevations of approximately 413.8 and 412.6 feet.

Two test piles were driven by ICC at the site on June 17, 1983. One pile met refusal at elevation 409±. Both test piles encountered high blow counts between elevations 416 and 411. Gill concluded that Scheme A would not be feasible. ICC decided to construct the cofferdam utilizing Scheme B which required driving the sheeting as deep as possible and stabilizing them with internal bracing. The sheeting would not, under Scheme B, be driven as deep as the base of the pier foundation. The cofferdam was built oversized to provide for a three-foot ledge of limestone inside the face of the sheeting. ICC presumed there was a ledge of limestone which would sustain the sheeting.

ICC submitted the Scheme B design to the Department on July 23, 1983, pursuant to section 502.07 of the Standard Specifications. That section provides that such submission to the Department shall not in any way relieve the contractor of his responsibility to secure a safe and satisfactory cofferdam. The Department notified ICC that the Pier 35 cofferdam drawings were found to be adequate.

When ICC began driving the steel sheeting for the north cofferdam it met refusal near the elevation of 413 feet, as it had anticipated. After construction of the cofferdam pursuant to the Scheme B design, ICC began excavating the area within the cofferdam in the wet with a dredge pump. ICC contends that it began excavating operations on June 27, 1984. Claimants Exhibit No. 28 reveals that actual excavation of material began on July 11, 1984. The top 10 feet of material below the riverbed were pumped out with a dredge pump.

When excavation reached elevation of 425 feet, harder material was encountered and the dredge pump was not effective. ICC began digging the harder material with a clamshell bucket. The clamshell bucket weighed at least 9,000 pounds, had hardened steel teeth at least eight inches long and was specifically designed for hard digging. When ICC reached the elevation of 422 feet to 420 feet, the clamshell bucket was not effective.

On July 13, 1984, ICC sent a letter to the Department advising it that bedded deposits and conglomerate deposits were encountered in the Pier 35 cofferdam. ICC stated that the deposits were so firmly cemented that they presented all the physical characteristics and difficulty of removal of rock.

Although the July 13 letter states that it is given in accordance with article 104.04 (changed conditions) and with article 104.03, C.3 (extra work requiring a change in type of construction), the letter does not state that the conditions encountered differ materially from those indicated in the contract. Instead ICC expressed that it wished “to alert the engineer that this work (cofferdam excavation) now requires a change in type of construction and the conditions materially differ from those previously encountered and cause an increase in cost and time required for performance of the work.” (Emphasis added.) ICC also expressed that the work was beyond the scope of the cofferdam excavation and the equipment would “be placed on standby until an authorization is received from the engineer to proceed under a force account basis or at an agreed unit price for rock excavation.”

On July 16, 1984, all excavation efforts at Pier 35 stopped. On July 16, 1984, the Department hired a professional diving company, Pro Dive, Inc., to conduct an underwater inspection of the Pier 35 cofferdam. Pro Dive submitted a report to the Department two days later chronicling its observations. Pro Dive observed

“The bottom was found to consist of rocks and sand tightly compacted together. The majority of rocks ranged in size from gravel up to about 18 inches in diameter. Some rocks were thought to be larger but ° * “ were still partially buried in the bottom. With a probe the diver excavated one such rock and it was 8 inches in diameter 0 ° ° the crane operator was requested to drop the clam bucket to the bottom. Inspection revealed that the teeth of the clam bucket penetrated the bottom material about 4 inches.”

On July 17, 1984, the Department sent a letter to ICC directing it to proceed with the excavation of the north cofferdam. The letter stated that the matter was reviewed in the field by representatives of the Department and the material was investigated under water by a diver. The letter states

“The findings of this investigation indicate that the deposits are not cemented and should not be classified as rock excavation with the exception of the isolated boulders measuring one-half cubic yards or greater in volume.”

The July 17 letter concluded that the material encountered is consistent with that indicated in the boring logs and is not considered a changed condition. The Department stated that it would pay for excavation of boulders in accordance with article 109.04 (payment for extra work).

On July 20, 1984, STS Consultants, Ltd., wrote to ICC describing methods that could be utilized to remove the material from the north cofferdam. Without making an actual inspection of the material in place, STS stated that

“Based upon observation of spoil areas, it appears that the material being removed from the cofferdam consists of cobbles and boulders within a matrix of sand and silt. This conglomeratic soil is apparently interlocked material as indicated by the apparent density and apparent lack of material recovery during the clamshell operations.”

The July 20 letter concludes with the notation that the “in-place material appears very dense and exhibits behavior similar to ‘rock’.”

On July 23, 1984, ICC resumed excavation operations using a high pressure water jet to loosen material so that it could be removed by the clamshell bucket. Also on July 23, 1984, legal counsel on behalf of ICC sent a letter to the Department stating that ICC would record its costs in accordance with the “force account” described in article 109.04 of the Standard Specifications, unless some other arrangement was negotiated. There is no evidence of any other arrangement being negotiated.

On July 27, a second shift was added at Pier 35 and ICC extended the work week to six days. A third shift was added on August 2.

DAMAGES CLAIMED

ICC’s three-part claim totals $191,582.70. In relation to the first part, ICC claims it expended at least $355,433.14 to excavate material from elevation 422± to 407 and sent an invoice to the Department on February 7, 1985. ICC claims to have credited to the amount $34,525.20 for the volume of material within the pay limits of the seal coat excavation and credited the $283,576.98 the Department paid ICC on a force account basis for rocks exceeding Vz cubic yard in volume, leaving a balance claimed due of $37,330.96 in dispute.

In the second part of its claim, ICC argues that it expended $109,054.22 on labor, materials and equipment to reinforce the north cofferdam between September 25 and October 11, 1984. ICC also claims $21,467.52 in rental charges resulting from the extended time for performance through the end of November 1984. The charges are for three items. First, $5,951.36 in steel sheeting rental charges. Second, $8,475 in coffing hoist rental charges from August 14 to September 18, 1984, which were used to support the cofferdam waters until they were lowered into position. ICC added a 5% markup for administrative costs. Third, ICC furnished 192 tons of steel bracing from its stock piles and charged rental. ICC also adds a bond cost fee of 1.2% for the three items.

The third part of the claim relates to ICC s request for the return of monies withheld pursuant to the liquidated damage provision of the Contract. ICC only allotted 15 working days for excavation of the cofferdams in its July 2, 1984, progress schedule. The Department ultimately assessed liquidated damages in the sum of $23,730 for an overrun of 56.5 working days on the project. The Contract provided for all pier work to be accomplished within 190 working days. All contract work was completed in 26714 working days. The Department authorized, to the benefit of ICC, an extension of 21 days: 10 working days used to drive and splice 32 additional pilings on Pier 35, and 11 working days for additional piling driven on Pier 34. The total approved working days for the contract were thereby increased to 211 working days, leaving an overrun of 56.5 working days.

Schless contends that the Department, through Cecil Gatewood, the engineer for the project, agreed to an extension of time so that no liquidated damages would be assessed. No documents or exhibits in the record demonstrate that any extension was granted. Gatewood denied that he agreed to an extension of time. Schless admitted that Gatewood did not have the authority to extend the time and such extensions were governed by a procedure described in section 109.04 of the Standard Specifications.

RESPONDENT’S MOTION FOR DIRECTED FINDING

The Respondent contends that no changed condition existed and ICC encountered those materials which it had reason to anticipate from the contract documents. The Respondent states that the boring logs were made available to Claimant prior to its bidding. Respondent also notes that ICC decided on the design of the cofferdam and the material used in its construction.

Respondent contends that ICC treated the excavation of boulders in excess of lA cubic yard on a force account basis. Respondent asserts that it did equitably adjust the Contract by paying Claimant $283,576.98 for rock excavated within the north cofferdam, $35,901.71 for additional pile splicing, and $34,525.20 for additional cofferdam excavation.

The theory of this claim is basically that all money sought is due Claimant because it encountered a changed condition. ICC appears to be arguing that there were two changed conditions. ICC claims that at an elevation of 422 feet it encountered material that met the definition of rock and was too hard to be excavated, and then claims that at 413 feet the material was not hard enough to sustain the cofferdam sheeting which caused a cave-in and additional costs for work and equipment.

In determining whether to grant a motion for a directed finding, the motion should be granted if the evidence, when viewed in its aspect most favorable to the nonmoving party, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) In this case one of the more compelling issues is the effect of the express exclusion of “rock excavation” from the scope of work for the cofferdams. Because there is evidence that a “harder material” was encountered, that express exclusion alone should result in the ruling that the evidence, when viewed in its aspect most favorably towards Claimant, does not overwhelmingly favor Respondent so that no contrary verdict could ever stand. In relation to Respondents motion for a directed finding, the motion is denied.

MERITS OF THE CLAIM

A ruling on the motion is not dispositive of this matter. The distinction between ruling on the motion and determining liability is that the Court may consider Respondents evidence and may employ a different burden of proof to the interpretation of the evidence. In determining the issue of whether ICC encountered a changed condition, the Court must determine if the conditions encountered were sufficiently indicated in the Contract documents. Foster Construction v. United States (Ct. Cl. 1970), 435 F.2d 873.

The first consideration is whether the express exclusion of rock excavation, from the description of work necessary for cofferdam excavation, indicates that the Department did not anticipate that rock would be encountered. The determination of whether the Contract indicated the conditions encountered is a question of law. (United Contractors v. United States (Ct. Cl. 1966), 368 F.2d 585.) The Court finds that the Department anticipated, and the Contract indicated, that a contractor would encounter boulders in excess of Vz cubic yard in volume and encounter the rock conditions indicated in the boring logs. The Contract includes a provision that specifically states what work is not included in the Contract but that provision does not exclude rock excavation. The Contract does not indicate that boulders, or other rock fragments, would not be encountered. Boring samples clearly indicated the contrary. The express exclusion of rock excavation from the description of work for cofferdam excavation, when interpreting the contract as a whole, merely related to the manner and method of payment for the work described.

Although it is a question of law, not one of fact, the Claimant still has the burden of proving its right to recovery and has a burden of demonstrating what conditions were actually encountered. This is the weakness of Claimants case. The Court cannot compare the Contract “indications” to the material encountered if it does not know what was actually encountered.

The Court finds that the Claimant has not proven that all of the material encountered at, and below, the elevation of 422 feet meets the definition of rock. This finding in no way relates to the encountering of boulders measuring Vz cubic yard or greater. ICC did encounter boulders measuring Vz cubic yard or greater. ICC has failed to prove that all of the material in question was “bedded deposits” or “conglomerate deposits so firmly cemented as to present all the physical characteristics and difficulty of removal of rock” as defined by section 502.03 of the Standard Specifications.

ICC alleges that the material presented all of the physical characteristics and difficulty of removal of rock, but fails to prove it. According to Claimant, Pro Dive called the material “rocks and sand tightly compacted together,” and the Department’s geologist called it “sandstone, limestone and dark color igneous rocks embedded in fine sand and organic silty loam.” ICC then poses the question as to whether these descriptions meet the definition of rock excavation as described in section 502.03 of the Standard Specifications. The descriptions do not prove that conditions actually encountered are “bedded deposits so firmly cemented as to present all the physical characteristics and difficulty of removal of rock.” ICC maintains that whether the material meets the definition of rock depends on the latent properties of the material. At oral argument Claimant’s attorney admitted that the material encountered was not geologically classified as rock.

ICC’s argument is that the material was as difficult to remove as rock would be, and therefore that proves it was rock. This is insufficient to prove the degree of difficulty of removal. It is also insufficient to prove the latent properties of the material, without evidence that ICC employed the proper method and equipment for removal.

This case is distinguishable from Shank-Artukovich v. United States (1987), 13 Ct. Cl. 346, heavily relied upon by ICC. The Shank-Artukovich court found that the governments own evidence, i.e. daily inspection reports, supported the contractor’s position. 13 Ct. Cl. at 351.

There is little merit to the argument that the fact ICC had to employ different construction methods demonstrates that the conditions encountered differed materially from conditions indicated in the Contract. Claimant did not demonstrate the actual conditions it encountered and, therefore, the record does not indicate which construction methods were proper for the conditions encountered. Kenny Construction Co. v. Metropolitan Sanitary District of Greater Chicago (1971), 52 Ill. 2d 187, 288 N.E.2d 1, cited by ICC, involved the construction of a tunnel and there was a detailed record which the circuit court relied upon in holding that there were changed conditions. The record detailed methods used by the contractor and discussions between the parties that ultimately led to the circuit court finding that the “District had waived and was estopped” from denying extra compensation. In the Kenny case, as well as the other cases cited by Claimant, the courts never held that different construction methods proved there was a changed condition. Fattore Co. v. Metropolitan Sewer Commission of Milwaukee (7th Cir. 1971), 454 F.2d 537, cert. denied, 406 U.S. 921, and later appealed (7th Cir. 1974), 504 F.2d 1; Fehlhaber Corp. v. United States (Ct. Cl. 1957), 151 F. Supp. 817, cert. denied, 355 U.S. 877.

We rely on the following factors which support Respondent’s position: the lack of evidence proving the actual conditions encountered, the lack of evidence showing that the use of equipment and methods were proper, the absence of testimony from a witness that observed the material in place, the absence of testimony from an expert that the material met the definition of rock, the opinion of the Respondent’s geologist that “conglomerate rocks so firmly cemented” to meet the definition of rock would not lose their cementation upon excavation, as the material did in the case at bar, the glaring inconsistencies in ICC s claim that everything below 424 to 422 feet met the definition of rock even though the limestone at approximately 413 would not sustain the sheeting, and the description of conditions contained in the August 15, 1984, STS Consultants, Ltd., letter to ICC, wherein Gill wrote to the effect that he is doubtful that a 12-foot vertical cut can be maintained below the elevation of 413± feet, and had rock existed below elevation of 413± feet, then the vertical cut could have been sustained.

The Court finds that the encountering of boulders Vz cubic yard or greater is not a changed condition in this Contract. The potential existence of such boulders was indicated in the Contract and would reasonably be anticipated, as admitted by ICC, when conducting subsurface operations in the Illinois River Valley. Section 502.16 of the Standard Specifications specifies that when “a Contract does not contain a unit price for Rock Excavation for Structures, it will be paid for as extra work in accordance with Article 109.04.” Therefore, the contract anticipated a method of payment for the removal of the boulders.

ICC elected to receive payment for removal of boulders on a force account basis pursuant to the Contract. On February 7, 1985, ICC billed $439,675.55 for rock excavation from elevation 424± feet to elevation 407± feet. The Claimants exhibit indicates that approximately 381 cubic yards of rock were removed. The Department found that only 341.8 cubic yards were removed from within the pay limits and agreed to pay $286,178.56 for rock excavation. On May 15, 1985, ICC submitted a bill in the sum of $287,000 for rock excavation, without waiving its claim for further reimbursement for claimed sums. In late 1985 and early 1986, the parties exchanged correspondence regarding adjustments to the bill for excavation within the cofferdam and finally reached an agreement on it. The additional $37,330.96 sought by ICC for excavation appears to be for excavation of material outside the pay limits. Wherefore, ICC’s claim for the additional sum of $437,330.96 is hereby denied.

It is not necessary to examine the part of the claim relating to the stabilization of the north cofferdam. The Court finds that there was not a changed condition. The boring logs indicate that limestone would be encountered, but in no way indicate that a ledge of limestone sufficient to support the cofferdam sheeting existed. ICC had the responsibility for the safely, stability, or adequacy of sheet piling and bracing, and was to be solely responsible and liable for all damages resulting from the failure or inadequacy of the cofferdam. This responsibility exists regardless of the Department’s approval of ICC’s proposed cofferdam design.

The Court further finds that ICC failed to prove that there was an agreement between the parties on waiving liquidated damages. ICC acknowledged that the method of approving an extension requires such extensions to be in writing, but provided no documentation to prove such. The failure of ICC to prove that changed conditions were encountered also works to defeat any claim to equitably adjust the deadlines.

The general rule is that the contractor is bound by the damage provisions of the contract and has no right to additional compensation for delays which prevent the contractor from completing the contract unless the delays are the sole responsibility of the State. (Johnson County Asphalt v. State (1987), 39 Ill. Ct. Cl. 36, citing Walsh Construction Co. v. State (1964), 24 Ill. Ct. Cl. 441.) If delays are caused by the State, including delays resulting from bid plans and specifications prepared in error by the State, then the contractor is entitled to damages for his increased costs resulting from the delays. (Ezizii Electric, Inc. v. State (1978), 32 Ill. Ct. Cl. 93; Warchol Construction Co. v. State (1979), 32 Ill. Ct. Cl. 679.) Claimant has failed to prove that it encountered a changed condition within the parameters of the Contract which it asserts resulted in delays and additional expenses. Claimant has further failed to provide evidence of the State’s culpability in causing delays.

Wherefore, it is hereby ordered that

1. Respondent’s motion for a directed finding is denied.

2. Claimant’s claim is hereby denied on all counts.


text:
    (No. 87-CC-0178
    Robert Murzyn, as Special Administrator of the Estate of David A. Murzyn, Deceased, and Robert Murzyn and Beverly Murzyn, Individually, Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 24, 1992.

    Pierce & Meyer, for Claimant.
    Roland W. Burris, Attorney General (Janice Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Hearing on the above-entitled claim was held on October 22, 1991. Pierce & Meyer, by James F. Carlson, appeared on behalf of the Claimants herein. Roland Burris, Attorney General of the State of Illinois, by Janice Schaffrick, appeared on behalf of the Respondent, State of Illinois.

On June 5, 1985, David A. Murzyn, the decedent, was operating his automobile in a northerly direction on and along Illinois Highway Route 394 at a point approximately 15 miles north of Joe Orr Road overpass, in Sauk Village, Illinois. Riding in said automobile as a passenger was John D. Gariffa.

Mr. Gariffa testified that the car was proceeding northbound in the inner lane, the lane nearest the median strip, at a speed of approximately 65 m.p.h. He stated that the roadway seemed bumpy, and that the right front wheel of the automobile struck a pothole. As a result, the right front tire blew out, and the car veered to the right and the driver brought it back to the left and it entered the median strip where it rolled completely over and relanded upright on its wheels on the southbound roadway of Route 394. He described the pothole as 10 to 12 inches in diameter and four to six inches deep.

As a result of the above, Robert Murzyn was thrown from the vehicle. He was taken by paramedics to St. James Hospital in Chicago, where he was pronounced dead. An autopsy was performed on his body and the cause of his death was the result of multiple and extreme injuries to his head, neck and body.

Sergeant Paul Smith of the Illinois State Police testified that he arrived at the scene of the accident shortly after the occurrence. The injured parties were still on the ground and he assisted the paramedics. He made his investigations. He stated that the right front and right rear tires of the vehicle involved were flat. He examined the right front tire and it appeared to be “smooth and worn.” He sent for an accident expert and Peter Chico appeared on the scene. Together they examined the roadway where the skid marks began and found no potholes in the road. In his opinion the road was in good condition.

Peter Chico, the accident reconstruction expert, testified that there were on the road “yaw” marks, and that a “yaw” mark is a tire mark left on the pavement as the result of a vehicle rolling and slipping at the same time. He calculated from his computations that the vehicle was traveling at 64 m.p.h. He stated that on the day after the accident, he examined the roadway and saw no potholes.

James Cannon, an employee of the Illinois Department of Transportation, stated that he is the head of the Calumet maintenance yard which encompasses the area where the accident occurred. He and two co-workers walked over the area of the accident. They found no potholes or anything requiring their attention or service by his department. He identified certain photographs of the roadway in question taken by him and testified that the photographs show no evidence of potholes.

The evidence deposition of Michael Kirk, a witness to the accident, was introduced into evidence by agreement. He testified he saw the vehicle involved in the accident approaching from his rear so he moved from the left or inner lane to the right lane. When the vehicle passed him it was going 65 m.p.h., when it was about 20 feet ahead of him and to his left, he heard a loud bang, and the vehicle veered to the left and then to the right and then to the left again when it entered the median strip. It rolled over, ending up on its wheels in a diagonal position on the southbound lane of Highway 394.

Claimants have failed to sustain their burden of proof. The concrete highway where the accident occurred was in good condition and no potholes were present. The evidence clearly indicates that the decedent lost control of his vehicle causing it to enter the median and roll over.

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


author: Sommer, J.

text:
    (Nos. 87-CC-0440, 87-CC-0551 cons.
    Lucille Alger and Jerry Rodgers, and Robert Geiger and Willard Nelson, Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 13, 1992.

    Chamberlain, Nash, Nash & Bean, for Claimants.
    Roland W. Burris, Attorney General (Terrence J. Corrigan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

The claims before us are for damage to crops in Geneseo Township, Henry County, due to flooding allegedly caused by the negligence of the State.

Lucille Alger and Jerry Rodgers are claiming a loss of the entire soybean crop on 24 acres. Robert Geiger and Willard Nelson are claiming a loss of the entire hybrid seed com crop on 20.53 acres.

All Claimants allege that the flooded areas were unable to drain because culvert No. 29 under the Hennepin Canal Parkway was blocked with debris. The general flow of water in the area was northerly into culvert No. 29 under the Hennepin Canal, then under a county road, and then into the Green River. On the south side of culvert No. 29 was a wire mesh grate. This grate had been installed to prevent beavers from entering the culvert and building dams therein. The Department of Conservation found such beaver dams caused flooding and were difficult to remove once built. There had been beavers previously in culvert No. 29.

On July 7 and July 8, 1986, approximately five inches of rain fell, and approximately one inch of rain fell over July 10, 11 and 12. On July 15, Jerry Rodgers, the tenant farmer on one of the parcels, noticed water standing to a depth of three or four feet in the back of his field to the south of culvert No. 29. Mr. Rodgers called the Department of Conservation and the Department cleared the grate of accumulated debris. The area then drained in 72 hours.

The Department of Conservation had a duty to reasonably maintain culvert No. 29 to keep it flowing so as to avoid damage to those upstream. However, for liability to attach to the State, the Department of Conservation must have had knowledge of the condition which caused damage and such condition must have been the proximate cause of the damage. Boyle v. State (1989), 41 Ill. Ct. Cl. 64.

The Department had been called to clean the grate of debris on several occasions over the years. The Department always responded promptly. The Department records indicate that the general area of culvert No. 29 was patrolled between July 8 and July 15, and there was no indication of a problem. There is no evidence that any State employee observed the south end of culvert No. 29 where the grate was. Access to the south end of culvert No. 29 by vehicle would have been difficult in the wet conditions. Rather, patrolling was done along the county road on the north side of the canal. From the vantage point of the county road, the flooded portions of the fields were not visible.

When the flooding was discovered on July 15, the grate was found to be clogged and had to be pulled out by a power winch by the Department. The water flow on the north side of the canal increased noticeably, and a downstream neighbor inquired as to the cause of the increased flow.

This is not the first claim in which the State was responsive and commendably worked to forestall damage but was, nonetheless, in breach of its duty. (Conners v. State (1988), 40 Ill. Ct. Cl. 112.) We find that the State breached its duty by maintaining a grate that it knew could clog and not discovering that the grate had clogged for a period of a week.

The State contends that the clogged grate was not the proximate cause of the flooding, or, in the alternative, that the flooding and damage would have occurred anyway. The State contends that the flap on the drain at the Green River may have closed, causing the ditches in the area not to flow. Stephen Moser, the site superintendent at the Hennepin Canal, testified that on July 13 he drove along the county road and noticed that water in the ditch on the north side of the road was not moving. He assumed that the flap on the Green River had closed. There was no flooding north of the canal. The States expert and the Claimants’ expert disagree as to whether there would have necessarily been flooding on the north side of the canal if the flap was closed.

The State contends that the volume of water was so great, because of the abnormal rainfall, that the whole drainage system could not accommodate it. It concludes that damage to the crop would have occurred necessarily, as it took 72 hours for the fields to drain when the grate was removed.

The Claimants’ engineering expert, Ronald Wallace, testified that the fields should have drained in about 33 hours given the amount of rainfall. Jerry Rodgers, who has a Masters degree in agriculture from the University of Illinois, testified that his crop could be under water for two days, but then it would die. Edward Kiefer, Mr. Rodgers’ farm manager, testified the same. The conclusion this Court draws is that, had the area drained normally, there would have been some damage but not total destruction. We find that the blocked grate was the proximate cause of the destruction of the crops.

The damage to Alger and Rodgers was calculated by the testimony of Jerry Rodgers and Edward Kiefer. They personally measured the portion of the field that totally lost soybean production in 1986 due to the flood. They further had the production records from the other portion of the field for 1986 to establish an average-per-acre soybean yield of 56.4 bushels per acre. This multiplied times 24 acres of production loss, times the Fall 1986 price of $4.50 per bushel, establishes their claimed damages at $6,091.20. However, Mr. Kiefer testified that the yield would be reduced about three bushels per acre in the flooded area, even if it had drained properly.

The Geiger and Nelson claimed loss was calculated by measurements by Wyffels Hybrids, the seed com company that had contracted for seed corn to be raised on the Geiger and Nelson field. The seed corn acreage for Geiger and Nelson was reduced by Wyffels Hybrids by 20.53 acres subsequent to July 8, 1986. Mr. Geiger testified that he, over the previous five years from 1986, had realized $435.03 per acre from Wyffels Hybrids seed com production, and that average multiplied by the lost acres of 20.53 resulted in a total damage of $8,949.64. However, when Mr. Geiger was asked about the price he received for the 1986 seed com grown on the remaining 79.47 acres of the field, he did not respond with a figure. Claimants’ Exhibit No. 10 is a document entitled “Wyffel’s Hybrids, Inc. Final Grower’s Settlement 1986 Crop Year.” Exhibit No. 10 indicates that Wyffels paid $306.53 per acre for the crop on the remaining 79.47 acres. At the price Wyffels paid, the loss would be $6,293.06. No evidence was entered concerning yield loss due to the wet conditions had the Geiger and Nelson field drained properly.

This Court finds that the State was liable for the destruction of the crops. There is insufficient evidence to show that the heavy rains of the preceding week would have remained on the fields long enough to cause total destruction of the crops if culvert No. 29 had not been obstructed.

The State has argued against the amount of damages by contending that there is a cost of harvesting and that the prices chosen were not proper. The fuel cost of harvesting was $2 to $3 per acre, as established in testimony, and there was no indication that custom harvesting was contemplated.

Why the October 1986 price was chosen for the Rodgers and Alger soybeans was never explained as the crop was sold in 1987. However, the 1987 price would include storage, so we find that the current delivery price in October 1986 would be reasonable to use.

We find that the proper measure of damages for the Geiger and Nelson loss would be the price received for that portion of the field undamaged by the July blockage at culvert No. 29. There is no good explanation in the record why the price received for the remainder of the field was not used in the Geiger arid Nelson calculations. We will use such, as in the Alger and Rodgers claim, as the best measure of damages.

Machinery costs, though urged as a deduction by the State, are not relevant when attempting to establish the cash loss. We will, however, deduct $3 per acre fuel cost savings from the requested amounts, and three bushels per acre from the Alger and Rodgers claim due to reduced yields because of wet conditions as testified to by Edward Kiefer.

Therefore, we award $5,695.20 to Lucille Alger and Jerry Rodgers (87-CC-0440); and we award $6,231.47 to Robert Geiger and Willard Nelson (87-CC-0551).


author: Patchett, J. Patchett, J.

text:
    (No. 87-CC-2556
    Preston Oder and Shirley Oder, Claimants, v. The Board of Trustees of the University of Illinois, Respondent.

      Order of Summary Judgment filed August 28, 1991.

      Order filed November 6, 1992.

    March & Milan, for Claimants.
    Franklin, Flynn & Palmer, for Respondent.
   ORDER OF SUMMARY JUDGMENT

Patchett, J.

This cause comes before the Court on the motion for summary judgment filed herein by the Respondent. The Court has carefully considered the motion for summary judgment and attached deposition of Dr. E.L. Reinertson, a veterinary doctor from Iowa State University.

In addition, the motion for summary judgment was filed on May 3, 1991. To date, the Claimants have made no response. Therefore, the motion for summary judgment is hereby granted in favor of the Respondent and against the Claimant.

ORDER

Patchett, J.

This case arose as a claim of veterinary malpractice against the University of Illinois School of Veterinary Medicine via a claim filed on March 4, 1987.

The Respondent filed a motion to dismiss on November 29, 1989. On February 28, 1990, this Court entered an order denying the motion to dismiss, and remanding the case to a commissioner for further proceedings. On May 3, 1991, the Respondent filed a motion for summary judgment. That motion for summary judgment was granted via an order entered on August 28, 1991.

On September 30, 1991, the Respondent filed a post-judgment motion requesting attorney fees. Oral argument was had on this motion on May 12,1992.

Counsel for the Respondent argued that they were entitled to attorney fees as a result of something resembling Rule 137 sanctions. In response to specific questioning regarding jurisdiction to impose such attorney fees, counsel for the Respondent could point to no authority allowing this Court to enter such an order.

It is the opinion of this Court that we are without jurisdiction to enter an order assessing attorney fees as a form of sanctions against the Claimant.

Therefore, the post-judgment motion requesting attorney fees is hereby denied.


author: Burke, J. Burke, J. Burke, J. Burke, J.

text:
    (No. 87-CC-2911
    Carole Anne-Jeanette Marasovic, Claimant, v. The State of Illinois, Respondent.

      Order filed December 13, 1990.

      Opinion filed March 25, 1993.

      Order filed May 4, 1993.

      Order filed June 9, 1993.

    Ettinger & Schoenfield, for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
    John M. Barnes, for Intervenor.
   ORDER

Burke, J.

On motion of Petitioner, Continental Casualty Company, it is ordered that the petition to intervene is granted.

OPINION

Burke, J.

On August 7, 1985, while employed by the Legal Assistance Foundation as an advocate in the protection and advocacy program, Claimant went to Howe Developmental Center in Tinley Park, Illinois, to interview a resident at the request of the resident’s mother. Howe Developmental Center is a State institution for the mentally retarded and is staffed by State employees. Claimant was accompanied by an associate law student who also worked for the Legal Assistance Foundation. The Claimant made prior arrangements with the staff at Howe Developmental Center to meet and interview the resident.

When Claimant and her associate arrived at the center, they were met by staff of the facility and led to a small table in an open room within Unit 507 and directed to a table for their interview. Claimant requested a private room in which to conduct the interview, but was informed that the “open room” was all that was available. A staff member brought the resident to the table in the open room. At the far end of the room there were a number of patients who were seated along the wall behind Claimant. The staff permitted the patients, including a resident named Susan, to remain in the room.

The Claimant, while conducting her interview, was struck from behind by a heavy blow to the back of her head and neck. The blow caused the Claimant’s head to go down on the table and snap back. Claimant was subsequently struck two additional times and each time her head snapped back and forth. Claimant stated that without provocation, a resident named Susan rammed her head into the back of the Claimant’s head and neck. When the blows ceased the Claimant saw a staff person lead the assailant away.

At the time in question, Howe Developmental Center generally housed mentally retarded, nonviolent patients. The Claimant had never been in Unit 507. Further, the Claimant had no information to indicate that the person she went to interview at Howe was violent or that any of the other residents at Howe were violent. Unit 507 at Howe Developmental Center was a special unit for residents with behavioral problems and violent tendencies. The resident, Susan, had a history of violent behavior and unprovoked attacks which was documented in her record and which was known by the staff. Prior to the attack, no warning was given to the Claimant or her associate by the staff regarding the violent tendencies of the resident, Susan, or any other resident in Unit 507. The staff failed to supervise or otherwise control Susan at the time of the attack on Claimant. The State negligently exposed Claimant to a mentally retarded patient it knew was dangerous, failed to warn Claimant of the danger and failed to control or supervise a mentally retarded patient.

The State has a duty to prevent the patients of mental institutions from attacking people where such an attack is foreseeable given the history or the condition of the patient. (Maloney v. State (1957), 22 Ill. Ct. Cl. 567; Calbeck v. State (1958), 22 Ill. Ct. Cl. 722.) This is consistent with Illinois law on custodial liability for harm caused by a third person in the custodian s control, which follows section 319 of the Restatement (Second) of Torts (1965). (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496.) This section of the Restatement states as follows:

“One who takes charge of a third person who he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”

It is undisputed that the State is liable for Claimants injuries arising from the attack. The State negligently placed Claimant in a position where she was open and vulnerable to an attack, failed to warn Claimant of the danger and failed to supervise or otherwise control a person under its control. The State breached its duty to prevent a patient in its control from attacking the Claimant when that attack was entirely foreseeable given the previous history and nature of the attacker. See Maloney v. State (1957), 22 Ill. Ct. Cl. 567; Calbeck v. State (1958), 22 Ill. Ct. Cl. 722.

The Claimant is entitled to damages for medical expenses of $5,889.25, pain and suffering experienced in the past and likely to be experienced in the future, and disability experienced in the past and likely to be experienced in the future.

Wherefore, it is hereby ordered that the Claimant be awarded $38,889 in full and complete satisfaction of this claim.

ORDER

Burke, J.

This cause comes on to be heard following the Courts opinion entered herein on March 25, 1993, and pursuant to the order of December 13, 1990, which granted Continental Casualty Company leave to intervene to protect its lien interest under the Workers’ Compensation Act.

On March 25, 1993, an award was entered in favor of the Claimant, Carol Anne-Jeannette Marasovic in the amount of $38,889. The decision did not address the issue of Continental Casualty Company’s interest in the case. At this time the Court anticipates that funds for payment of the award will not become available until late September of 1993. Prior to the funds becoming available, the Court is desirous of resolving the issue of the lien. The Court strongly encourages the parties to arrive at an agreement as to disposition of the proceeds of the award.

Wherefore, it is hereby ordered that

(1) Efforts to secure the appropriation of money to fund the award shall continue but no payment is to be made until further order of the Court,

(2) The parties are to confer regarding disbursal of the proceeds of the award, and

(3) If the parties arrive at an agreement as to disbursal of the award they are to notify the Court of terms of their agreement and, if they are unable to agree, then the parties or one of them is to so notify the Court so that a hearing may be scheduled.

ORDER

Burke, J.

This cause comes on to be heard following the entiy of our order herein on May 4, 1993, and the parties’ response thereto;

Pursuant to the agreement of the Claimant and the intervenor, $8,295.14 of the $38,889 award entered heretofore on March 25, 1993, is to be paid to Continental Casualty Company in care of its counsel and the clerks office is directed to so voucher the payment.

So ordered.


text:
    (No. 87-CC-2999
    Lisa J. Wood and Country Mutual Insurance Co., Claimants, v. The State of Illinois, Respondent.

      Order filed November 9, 1987.

      Opinion filed March 30, 1993.

    Holley, Keith & Maelick, for Claimants.
    Roland W. Burris, Attorney General (David Bo Mattson, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Burke, J.

This Court having considered the Respondent’s motion to dismiss Count III, and being fully advised in the premises, finds that Claimant Lisa Wood has failed to provide timely notice as required by section 1 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 22 — 1). It is therefore ordered that Count III as to Lisa Wood is dismissed for lack of jurisdiction.

OPINION

Burke, J.

On April 21, 1985, Claimant was returning to college from her parents’ home in Bourbannais, Illinois. At approximately 6:45 p.m., Claimant was operating her Ford Escort automobile in a westerly direction on Route 136, which is a heavily traveled highway in McLean County, Illinois, and as her vehicle descended from a crest in a hill, she observed a pothole in the roadway approximately 150 to 200 feet from the crest of the hill. The pothole covered approximately two-thirds of the westbound lane and at the moment she noticed the pothole, she applied the brakes to her vehicle to reduce her speed in an attempt to avoid striking the pothole, but was unable to do so. Claimant lost control of her vehicle and caused the following damages as stipulated by the parties:

A. $6,102.81 for repairs to the Woods vehicle and $10,000 paid by Country Mutual Insurance Company to Beverly Clark, a passenger in the Woods automobile, in her claim for personal injuries and medical expenses.
B. $100 paid by Claimant on the repair of her automobile and not reimbursed by Country Mutual Insurance Company under her policy of insurance.

The Claimant asserts that the Respondent, State of Illinois, Department of Transportation, was negligent by failing to properly maintain the roadway by not applying a permanent patch to a large pothole that was present on the roadway for at least two to three months prior to the accident, failing to install adequate warning signs or otherwise adequately warn motorists of the dangerous condition of the roadway, and failing to check the pothole over the weekend to ensure that it did not present a dangerous condition.

Tom and Marcella Woods, parents of Lisa Woods, stated that they had traveled westbound near the scene of the accident a few days before and had observed the pothole measuring five to eight feet in diameter and of such depth that it became necessary to drive either to the right on a narrow shoulder or to the left into oncoming traffic in order to avoid striking the hole.

Mark Flynn, who lives three quarters of a mile from the scene of the accident, stated that he arrived shortly after the accident and observed the pothole which he described as being five to six feet in diameter and covering about two-thirds of the westbound lane. He further stated that he had traveled the area of the accident twice a day and five or six days per week for about two years prior to the accident and that this particular pothole was present for at least two or three months prior to the accident of April 21,1985. He stated that the pothole was difficult to observe because of the location just over the crest of the hill and that he never saw anyone repair this particular pothole until April 22,1985, which was the day following the accident.

William Grant and Francis Weber stated that the pothole had been temporarily repaired two days prior to the accident. The unrebutted testimony that the pothole was repaired by the State maintenance crew within a few days before the accident is evidence of diligence. Scroggins v. State (1991), 43 Ill. Ct. Cl. 225.

No evidence was introduced indicating actual or constructive notice. The established rule of law adopted by the Court is that “the State of Illinois is not an insurer against all accidents which may occur by reason of its highways.” Scroggins, supra.

It is well established that the State of Illinois has a duty to maintain its highways in a reasonably safe condition for all users, and in order to prevail on a claim for a breach of that duty, claimants must show that the State had actual or constructive notice of the defect causing the injury or damage complained of. (Stills v. State (1989), 41 Ill. Ct. Cl. 60.) The duty to maintain is fulfilled by using reasonable diligence in such maintenance. To recover, a claimant bears the burden of establishing by a preponderance of the evidence that the State has the duty to use reasonable care in maintaining the highway at the accident site. The duty to maintain was fulfilled and Claimant failed in meeting her burden of proof.

It is hereby ordered that this claim is denied.


text:
    (Nos. 87-CC-3271, 87-CC-3272 cons.
    Kenneth Miller and Henry Hite, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 7, 1992.

    Copeland, Finn & Fieri, for Claimants.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimants brought this action against the State of Illinois as a result of an incident which occurred on Interstate 57. On June 8, 1986, Kenneth Miller was operating a motor vehicle south on Interstate 57 at approximately 3:00 p.m. He was near Peotone when the car hit a rise in the highway. Mr. Miller stated that he did not see the two-foot high, “A” shaped rise at any time prior to the impact. When the car hit the rise, he grabbed tightly onto the steering wheel and pulled over to the side. The car flew slightly into the air on the left side and sustained damage to the undercarriage. Prior to striking the rise, Mr. Miller observed two or three cars that pulled over about 50 to 100 yards past the rise on the highway. Henry Hite, Mr. Millers father-in-law and owner of the car, was a passenger at the time of the incident. As a result of the impact with the rise, both Claimants were treated in the emergency room of a hospital in the Kankakee area and released.

The issues are whether the State is responsible for this particular incident allegedly caused by the buckling of the rise in the pavement on Interstate 57, and whether the State had actual or constructive notice prior to the occurrence of the incident.

No evidence was presented to show that the State or its employees knew or should have known about this particular rise on the day in question. Claimants cited a case which deals with similar facts, but is distinguishable because evidence of 70 similar prior incidents involving buckles was presented which gave the State notice of a particular problem in the area. (St. Cyr v. State (1989), 41 Ill. Ct. Cl. 36.) In the case at bar, it is clear that the buckle existed for a short period of time. The other two or three cars in the vicinity may have been damaged by the buckle immediately before Claimants’ car struck it, but there was no evidence to suggest that the State should have known about this buckle or failed to do anything about it once it occurred.

State employees stated that there is no way to predict when a buckle is going to occur and that there is no set pattern to buckling. The State does not deny that these buckles can be a dangerous condition; however, the fact that these buckles occur is not evidence of negligence. Where there is no indication of prior notice, either actual or constructive, on the part of the State to these conditions, the State will not be held responsible.

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


text:
    (No. 87-CC-3424
    Stanley Trotter, Claimant, v. The State of Illinois, Respondent.

      Order filed April 6, 1993.

    Gerald M. Sachs & Associates, for Claimant.
    Roland W. Burris, Attorney General (Janice L. Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   ORDER

JANN, J.

This claim sounding in tort arises out of a motorcycle accident which occurred on May 14, 1986, on an exit ramp from Interstate 94 at 159th Street in Thornton Township, Cook County, Illinois. Claimant alleges that Respondent negligently maintained the ramp in a manner which proximately caused physical injuries and property damage suffered by Claimant.

A hearing was held before Commissioner Michael Kane on December 20, 1991. A brief was submitted by Respondent on December 9, 1992. Claimant has not filed a brief.

FACTS

On May 14, 1986, Claimant, a 39-year-old male was operating a 1983 Honda Goldwing motorcycle eastbound on Interstate 94 (the Calumet Expressway) when he exited at 159th Street intending to go to Hammond, Indiana. Claimant was in possession of a valid operators license and had been riding motorcycles for about 15 years at that time.

Claimant testified that he was traveling at approximately 30 m.p.h. on the ramp which was a two-curve exit ramp. As he made the turn in the second curve, there was a pothole which he observed and then struck a second or two later. Claimant identified and marked exhibits which showed the pothole located off the actual roadway in the gutter which was attached to the shoulder of the roadway. After striking the pothole, Claimant stated he lost control of his motorcycle. It veered left as he traveled to the top of the ramp and onto 159th Street where he hit a cement divider and sustained personal injuries and damage to his motorcycle.

In addition to the Claimant’s testimony, there was presented on his behalf the testimony of an expert, Robert Lippman, who is a professional civil engineer. The State presented John Cannon, an employee of the Illinois Department of Transportation, and also an expert pursuant to Supreme Court Rule 220, Mr. Dror Kopemick. Based on the testimony presented through these four witnesses and the exhibits provided by both parties, it is the finding of the Court that the accident did not occur in the way described by the Claimant. Further, it is physically impossible for the Claimant to have hit the cement median on 159th Street according to the testimony he gave and the exhibits entered into evidence.

Claimant’s Exhibits Nos. 1 through 9 show the location of the pothole on the date of the incident and, in addition, the ramp as it heads towards 159th Street. It is the Claimant’s testimony that after he hit the pothole, the motorcycle veered to the left. It is clear from the photos that the Claimant himself identified that if the motorcycle veered to the left and he was unable to control it, Claimant would not have hit the concrete divider on 159th Street. At the time he supposedly hit the pothole, the Claimant was heading in a somewhat northerly direction, the concrete divider is further to the east and it is not shown in any of the photographs. What does appear in the photographs is the barrier in existence which would have prevented his motorcycle from veering to the left and hitting the concrete median.

Mr. Lippman, Claimants own expert, testified that the Claimants statements were confusing as to the incident. Based upon what he was able to ascertain, Lippman opined that the cause of the accident was a poorly maintained shoulder and the lack of an advisory speed limit sign. On cross-examination, Mr. Lippman reiterated that it was not his opinion that the pothole Claimant allegedly struck was the cause of the accident. Claimant had been unable to identify exactly what pothole allegedly caused his accident.

The State’s evidence was primarily produced by Mr. Kopernick who is a mechanical engineer employed by Triodyne, Inc. He is an accident reconstruction expert. He reviewed copies of the police reports, depositions, and took numerous photographs of the location as it existed at the time of his examination. By that time, the nature of the location had changed and the ramp had been redesigned. However, through photographic reconstruction, the witness was able to establish where the pothole had been at the time of the incident. According to his testimony, the hole was approximately 150 to 175 feet from 159th Street, which is consistent with the views depicted in Claimant’s photographs. Further, Mr. Kopernick recreated a similar pothole at the Illinois Department of Transportation property in Alsip. Videotapes were identified and presented of that hole and of the expert operating a similar motorcycle through the pothole. It is clear from these tapes that if the operator is aware that the pothole is about to be struck, a pothole of the size and nature described by the Claimant and identified in the photos would not cause an operating problem for the driver. The only distinction that can be drawn between these tests and the Claimants operation is that the Claimant was unaware that he was to hit the pothole until shortly before he actually struck it. This testimony is not conclusive in and of itself, but it is another contradiction of the Claimant’s version of what occurred.

Mr. John Cannon, IDOT team section technician, also testified on behalf of Respondent. Mr. Cannon was, as part of his duties, responsible for maintenance of the roadway where Claimant’s accident occurred. Cannon’s review of IDOT records found no complaints or notifications of problems concerning the condition of the ramp in question. Cannon also had personal knowledge of the ramp, but indicated he had no recollection of any problems at that location.

THE LAW

While the State of Illinois is not an insurer of the conditions of its roadways, it does have a duty to use reasonable care in maintaining its roads. (Baker v. State (1989), 42 Ill. Ct. Cl. 110, 115, citing Ohms v. State (1975), 30 Ill. Ct. Cl. 410.) Said duty of reasonable care requires that defective and dangerous conditions not exist on the highways. Baker, at 115, citing Moldenhauer v. State (1978), 32 Ill. Ct. Cl. 514.

However, a key issue with respect to the existence of such conditions is, as noted in Baker, whether the State had actual or constructive notice of a dangerous condition and whether the condition was then permitted to exist without warning to the public. (Baker, at 115, citing Clark v. State (1974), 30 Ill. Ct. Cl. 32.) To be in a dangerously defective condition, the highway must be in a condition unfit for the purpose it was intended. Baker, at 115, citing Allen v. State (1984), 36 Ill. Ct. Cl. 24.

The evidence adduced at the hearing in this matter discloses no actual or constructive notice of a dangerous condition at the location in question to the Respondent. Claimants testimony as to how the accident occurred failed to establish any negligence by the Respondent which was the direct and proximate cause of the accident. Claimant has failed to meet his burden of proof as to negligence on the part of Respondent by a preponderance of the evidence presented.

It is hereby ordered that this claim be, and is hereby denied.