text:
    (No. 75-CC-0113
    National Bank of Bloomington, Administrator of the Estate of Rae Ann Schneider, Deceased, and Clemens Schneider, Claimants, v. The State of Illinois, Respondent.

      Modified opinion on denial of motion for reconsideration filed February 24, 1982.

    Jerome Mirza & Associates, Ltd., for Claimants.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

The issue in this case is whether or not Robert Drucker, an employee of the State of Illinois who was the parole officer assigned to supervise a parolee, one Jesse Sumner, was negligent in his duties, thereby leaving Mr. Sumner free to commit three murders rather than being remanded to a State penitentiary.

Jesse Sumner had been convicted of two bank robberies and one murder when he was paroled from the Department of Corrections in December of 1972. He was placed under the supervision of parole officer Robert Drucker, an employee of the State of Illinois. The parole officer, also an ex-convict, had been convicted on a charge of statutory rape.

The record of the parolee from the time of his parole until he was arrested for the murder of Rae Ann Schneider is as follows. The parolee threatened to kill a certain Mrs. Clark if she testified against him on a criminal damage to property charge. The parole officer was aware of the threat against Mrs. Clark. He talked to her and told her the parolee was a dangerous man and. indicated to her she might place herself in some physical danger if she testified against him. In any event, and whether this was a cause or not the record does not show, Mrs. Clark did not show up at the time of the hearing on the charge of criminal damage to property. The date of the hearing was December 22, 1972, the day Rae Ann Schneider was murdered.

A circuit judge of the area in which the parole officer and parolee lived informed the parole officer that the parolee had made various threats to kill people. The record shows that the parole officer also received an anonymous letter stating that the parolee was threatening the lives of various people. Shortly thereafter, he was charged with aggravated incest and the record indicates he had been in trouble with a Federal parole agent.

The record, which, is largely the testimony of the parole officer, is uncontradicted in any manner, shape or form. The record shows the parolee had come back to Danville, which was out of the county in which he was paroled, and threatened witnesses who had testified against him at the time of one of his previous convictions. Shortly before this time, the parolee had been ordered to stay out of Danville except during daylight hours.

The evidence indicates that the parolee had slit the throat of his accomplice in a bank robbery for which he was originally convicted of murder. This conviction was later changed to one of manslaughter by order of the court.

The record shows the parolee threatened his first wife and that he was arrested for assaulting his second wife. He had also been charged with the offense of aggravated incest. The parole officer testified he did not know of that charge.

It seems to the Court that one of the obligations of a parole officer is to contact the various law enforcement agencies in his area to see whether the parolee has violated the terms of his parole.

The parole officer testified that when he interviewed the parolee’s wife, she was very nervous and agitated but she told him everything was all right at their home. Her attitude and reaction should have told him things were not normal.

The original conditions of Mr. Sumner’s parole were that he was to remain in the county to which he was paroled but the record indicates the parole officer had given him parole slips allowing him to travel to places he desired. Another condition of his parole was that he was to refrain from associating with other ex-convicts and the parole officer testified that he encouraged the parolee to associate with one other ex-convict so he was aware he was violating the conditions of his parole.

Beginning with the bank robbery, which resulted in the charge of murder against the parolee, the record shows one continuous sequence of events that should have indicated to the parole officer that his parole should be revoked. The parole officer testified that he was afraid of the parolee.

It is interesting to note that most of the above facts were obtained from the testimony of the parole officer so there can be no question of the knowledge on the part of the agent of Respondent. There is also no question that the parole officer at any time attempted to revoke the parole of the parolee so that he could not continue his acts of violence on people or property.

The record shows that the parolee not only killed Rae Ann Schneider but also killed two other young women. The record does not disclose when the two other murders took place.

It would be difficult to find a case that could show more proof that the State, through its agent, had knowledge of the habits of the parolee and that these habits were dangerous to society at large. Respondent attempts to defend itself on the theory of proximate cause. The Court is of the opinion if there ever was a case of proximate cause, this would rank No. 1.

It is interesting to note that nearly all of the acts cited above took place between the time of parolee’s parole in January 1972 and December 22, 1972, less than one year. During this period of time, despite the knowledge of the incidents above referred to, nothing was done by the State to protect society as a whole.

This Court, in the case of Maloney v. State of Illinois, 22 Ill. Ct. Cl. 567, laid down the following rule:

“The agents of the State are required to use ordinary care to protect persons and their property from being damaged by those placed under their charge."

In the same case, the Court stated:

“Evidence showed that the State’s agents had sufficient warning of patient’s condition, which would have justified and warranted them to keep him under closer surveillance . . .”

In the case of Callbeck v. State of Illinois, 22 Ill. Ct. Cl. 722, the Court laid down the following rule:

“State is required to exercise reasonable care in restraining and controlling dangerous insane persons committed to its custody, so that they will not have the opportunity to inflict a foreseeable injury upon others.”

The Court stated, in the case of Gillespie v. State of Illinois, 25 Ill. Ct. Cl. 309:

“Where evidence showed Respondent was negligent, such negligence was directly responsible for the injury, and Claimant was free from contributory negligence, an award will be made.”

The Court is of the opinion that the extraordinary facts herein put this case in an exceptional category and are far removed from the ordinary case of proximate cause.

The record discloses that a man who had already committed murder and had been placed on probation for a period of approximately one year continued to endanger the lives and property of others and yet the State, in whose custody the parolee remained, did nothing to correct, punish, restrain or prohibit any future acts of violence. The record shows the State was negligent in not fulfilling its primary duty to the citizens of the State to protect their ¡very lives and property.

This case is not intended to be a landmark for future cases involving proximate cause unless the records in such cases are as clear and demonstrative of continuous acts of an individual to endanger his fellow citizens and their property as this one.

The Court cannot, in good conscience, find that the eventual event of murder was not readily foreseeable.

In its motion to reconsider, Respondent, for the first time in over six years of hearings, raises the question of whether or not the Court of Claims has jurisdiction in this matter. It cites at greath length the case of People v. Maryland Casualty Co., which was heard in the District Court of the U.S. Northern District, Eastern Division. In that case, suit was brought against the Maryland Casualty Company and State officers personally when the wafer supply system of the Manteno State Hospital became dangerously contaminated and caused an outbreak of typhoid fever, resulting in the deaths of four individuals and injuring several others. The complaint alleged it was the duty of the various State departments to provide safe drinking water and that they failed in said duty. This suit was not in the Illinois Court of Claims. Respondent takes the position that this case governs the present case and that there was not any liability on the part of Respondent.

The Court calls attention to the following Illinois statutes:

“Except as provided in ‘An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal an act herein named,’ filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.” Section 1 of “An act in relation to immunity for the State of Illinois.” Ill. Rev. Stat., ch. 127, par. 801, effective January 1, 1972.
“The Court shall have exclusive jurisdiction to hear and determine the following matters:
(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit. . .” Section 8 of The Court of Claims Act. Ill. Rev. Stat., ch. 37, par. 439.8.

The case of People v. Maryland Casualty Co., 132 Fed. 2d 850, is not controlling in view of the statutes cited. It is certainly true that a private corporation would be liable for the conduct of the parole agent, if he were an employee of a private corporation. Being employed by the State, his conduct is chargeable to the State by virtue of express authority of the Court of Claims Act.

The record shows that the parolee, in one short year, by his many acts of parole violations and total disregard for human life created a pattern of foreseeability of the events that would happen. The records indicate the unfortunate victim, Rae Ann Schneider, was a young woman, steadily employed, of good habits, and in comparatively good health.

The Court notes with interest the statement of Respondent that only two of 22 parolees in the parole officer’s care were deprived of their parole. This is indeed an endorsement of the Court’s decision in this case, that is to say, that this is an extraordinary case. It offers the finest possible rebuttal to Respondent’s statement that this case would be a key to open up the treasury of the State of Illinois. If the parole system is working as it is supposed to, then a death like the one in this case should be either eliminated entirely or become a rarity. Illinois citizens can then lead their daily lives secure in the knowledge that the sovereign power is doing what it is supposed to do in assuring the safety of its citizens.

Respondent also sets forth that the Court’s decision is too harsh in that it might cause the incarceration of parolees, to their detriment. The Court is of the firm opinion that if it becomes a choice between the welfare of the average citizen of the State and the possible reincarceration of the violators of the law of the State, reincarceration would be a cheap price to pay for the citizens’ safety.

We are aware of the general principle that where the State defines by statute the powers and duties of officers of its departments, it is not creating duties the officers owe to individuals who may constitute the general public; it is “merely outlining the State’s assumed public duty,” and in the performance of this “public duty” the officers are not liable to an individual for negligence. People v. Maryland Casualty Co., 132 Fed. 2d 850; Porter v. City of Urbana (1980), 88 Ill. App. 3d 443.

The rule doesn’t apply when the official (as a police officer) has assumed a special relationship to a person that elevates his status to something more than just being a member of the general public. People v. City of Urbana, supra.

Our question in the instant case is whether there is anything in the statutes that circumvents this general principle. We hold that there is. At the outset, we are mindful that the State is generally immune from being sued in any event but an exception is provided for those claims where jurisdiction has been granted to hear claims under the provisions of the Court of Claims Act. (Ill. Rev. Stat., ch. 127, par. 801.) By virtue of this act, the Court has been granted authority to hear claims in certain matters where it is specifically granted. For example, this Court can hear claims under the Crime Victims Compensation Act, and claims caused by escaped inmates of State institutions. In these instances, the question of “public” duty of the officials is not an appropriate defense in an action before the Court of Claims against the State.

The legislature has seen fit also to grant the Court authority to hear claims sounding in tort if a like cause of action would be against a private person or corporation in a civil suit. (Section 8(d) of the Court of Claims Act. Ill. Rev. Stat., ch. 37, par. 439.8(d).) Our holding in the case at bar is founded upon this statutory provision which we interpret to mean that the distinction between “public duty” and “private duty” is not appropriate in a case before the Court of Claims sounding in tort based on a public official’s conduct.

Surely a private corporation in conducting its affairs has not been granted by the statute the duty to carry out its safeguards only as a duty owed to the public generally. By the provision of the Court of Claims Act cited above, the legislature has classified the State as a private corporation in claims sounding in tort. Such being the case, we are constrained to hold the difference between public duty and private duty is not appropriate in tort claims brought before the Court of Claims and the cited cases are not controlling.

In. our judgment, a private corporation would be liable in the instant case if the parole agent were acting as an employee of a private corporation. Therefore, the State likewise is liable, but not to exceed the limited amount provided in the Court of Claims Act. The distinction between the Court of Claims and a court of general jurisdiction is illustrated by this treatment of tort claims.

To further substantiate this position, it is to be noted that the Court of Claims Act provides specifically that the “defense that a State is not liable for negligence of its employees is not applicable to determining claims brought before the Court of Claims.”

Respondent’s motion to reconsider is denied, and the Court reaffirms its award in favor of Claimant in the amount of fifty thousand ($50,000.00) dollars, plus an additional $1,508.80 for reimbursement of funeral expenses, for a total award of fifty-one thousand five hundred and eight dollars and eighty cents ($51,508.80).


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 75-CC-0412
    Leona Jones, Administrator of the Estate of Monroe Jones, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 18, 1981.

    George P. Troha, for Claimant.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court on joint stipulation of the parties. This action was for the wrongful death of Claimant’s decedent, Monroe Jones, who was approximately 13 years of age at the time of his death. Pursuant to the joint stipulation filed herein, the Court finds as follows:

1. On December 29, 1973, Claimant’s decedent was engaged in riding a sled down the slope created by the elevation of Interstate Highway 80 above street level at the intersection of Duncan and Water Streets in Joliet, Illinois. This elevation of the highway created an embankment abutting the northern and southern shoulders of the highway.

2. Although fences were in place to prevent pedestrian or vehicular access to the highway and shoulders, the embankment was insufficiently fenced to prevent access from the street to the enbankmerit and vice versa.

3. On the date in question, Claimant’s decedent was sledding down the embankment, and upon reaching the bottom thereof, continued to slide beyond his control out into the street, where he was struck by an automobile and killed.

4. Claimant has exhausted all her legal, administrative, and equitable remedies and has complied with all notice and jurisdictional requirements of the Court of Claims Act. Ill. Rev. Stat. 1977, ch. 37, par. 439.1 et seq.

5. Respondent is negligent to some degree for the death of Claimant’s decedent and thus partially liable under the doctrine of comparative negligence.

6. The parties have agreed that the sum of $8,750.00 is a fair settlement of this claim.

7. No material questions of fact or law remain in dispute.

Therefore, it is hereby ordered that Claimant be and is hereby awarded the sum of $8,750.00 (eight thousand seven hundred fifty dollars and no cents) in full and final settlement of her claim.


text:
    (No. 75-CC-0663
    G. H. Sternberg & Company, Claimant, v. The State of Illinois, Respondent.

      Order filed July 31, 1981.

      Order on denial of motion for reconsideration filed November 23, 1981.

    Daily & Walker, for Claimant.
    Tyrone Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

A hearing on the above entitled matter was held on May 1, 1980, and concluded on May 8, 1980, at 630 South College in Springfield, Illinois, before Richard H. Parsons, commissioner.

The Claimant entered into a contract with the Respondent on March 3, 1971, and furnished a performance bond as required, and thereafter proceeded to attempt to perform the contract.

The job involved placement of concrete pipes under the highway at a point north of Granite City in Madison County and at a point near Belleville on Route 460 in St. Clair County.

The contract provided that the pipe should be concrete, 30 inches in diameter and should be installed by “jacking” by hand only; no augers were permitted.

The Claimant completed the placement of the pipes in Madison County as agreed but when he moved his equipment to St. Clair County, he encountered numerous problems and it became apparent that the job would have to be aborted.

The Claimant then tried to reconcile this matter with the Respondent and explained at that time how the job could be handled but it would be more costly and therefore requested additional funds. The Respondent refused to vary the contract or approve additional funds and threatened Claimant with proceedings against his performance bond.

The Claimant looked for alternative ways to complete the job and consulted with one Robert Affholder in regard to same and at that time learned that the Respondent had contacted Affholder previously in regard to how to do this same job, and had been told by Affholder that it was not feasible to install the pipe by a “jacking” operation; that it could be done by installing a liner and pulling the concrete pipe through the liner. None of this information was passed on to the Claimant prior to the execution of the contract.

After a long period of time, the Respondent authorized Claimant to proceed to do the job with a steel casing and concrete pipe as originally suggested by both the Claimant and Affholder.

The job was completed by boring with the use of an auger, and with the encounter of additional concrete, debris, etc., it became obvious that any additional attempts at “jacking” would have been unfeasible.

At the time of the hearing of May 1, 1980, there came a point in the testimony that the Respondent was not ready to proceed and therefore was given additional time (one week) and which time could have given the Respondent an unfair advantage. However, even with the additional time given to Respondent, Respondent did not provide enough evidence to rebut Claimant’s case.

It appears from the record and the discovery of witnesses, and from the preponderance of the evidence that Claimant has proved its case and therefore Claimant is hereby awarded the sum of $44,029.43, which consists of $6,412.50 for steel casing, $22,657.70 for the installation of the casing, $724.02 for extra grouting, $10,630.21 which was the amount expended by the contractor on the aborted portion of the job, and $3,605.00 for improperly withheld damages.

ORDER ON DENIAL OF MOTION FOR RECONSIDERATION

This matter comes before the Court upon motion of Respondent for reconsideration of the Court’s order allowing claim filed July 31, 1981.

Oral argument having been heard in this matter, the Court is of the opinion that the original order allowing claim is correct.

It is hereby ordered that Respondent’s motion for reconsideration be, and the same is, denied, and the Court’s order of July 31, 1981, will stand as the order of this Court.


author: Roe, C.J.

text:
    (No. 76-CC-0787
    Daniel Hodge, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 29, 1981.

    Manton, Janov & Edgar, Ltd. (Rick E. Janov, of counsel), for Claimant.
    . Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant filed this claim as a negligence action pursuant to the provisions of Section 8(d) of the Court of Claims Act. (Ill. Rev. Stat. 1977, ch. 37, par. 439.8(d).) Claimant alleged that on April 9, 1974, he was operating a motor vehicle upon State Highway 10 in Iroquois County, Illinois. State Highway 10 is owned and maintained by Respondent, State of Illinois. At the location of the accident, it was alleged that there was a concrete box culvert with 8-inch by 10-foot headwalls rising 1.5 feet above the pavement lying near the travelled portion of Highway 10.

Claimant further alleged that on the date of the accident (April 9, 1974), he was operating his vehicle along Highway 10 and felt a sudden pull to the left on his motor vehicle, presumably from a bald front tire. Claimant’s vehicle struck the headwall of the culvert, resulting in the severance of Claimant’s left leg from his body below the knee.

Claimant takes the position that the location, construction and maintenance of the concrete culvert was negligent and that the negligence of Respondent was the proximate cause of Claimant’s injuries. Claimant prays judgment against Respondent in the sum of $100,000.00.

Claimant argues that the culvert headwall served no purpose whatsoever and that the presence of the head-wall rendered the roadway unsafe. Claimant introduced evidence that highway construction standards in existence on the date of the accident were such that the concrete culverts, such as that involved in the present case, were obsolete and were in fact in the process of removal by the State of Illinois and by Iroquois County. Finally, Claimant argues that the medical evidence and testimony established that the presence of the headwall was responsible for the severance of the Claimant’s leg when his vehicle struck the culvert.

Respondent argues that construction standards in existence for new or reconstructed highways should not be applied to culverts constructed in 1922. The evidence revealed that the culvert in question was constructed in 1922 and that the construction standard alluded to by the Claimant was promulgated in 1943. Respondent argues that the change of a standard, such as in the construction of culvert headwalls, could not and should not place a duty upon the State of Illinois to reconstruct or alter all existing culvert headwalls in the State of Illinois on State highways.

Respondent also argues that Claimant failed to prove probable cause. Respondent admits that Claimant’s injuries were caused by collision with the culvert headwall; however, Respondent disputes Claimant’s position that the existence of the headwall was a proximate cause of Claimant’s injuries and argues instead that Claimant’s loss of control of his vehicle was the proximate cause of his injuries.

Undeniably, as Respondent argues, the burden of proof in this case is upon the Claimant. Respondent argues that Claimant totally failed to show a duty and violation thereof and that in the failure to show a duty on behalf of Respondent, the question of proximate cause becomes irrelevant. Respondent argues that even if Claimant did establish a duty to remove the headwall on the culvert, that the proximate cause of the accident was Claimant’s failure to keep his vehicle on the main travelled portion of the highway. Respondent attacks Claimant’s credibility with respect to the speed of Claimant’s vehicle at the time of the accident and the manner in which Claimant’s vehicle left the roadway. Finally, Respondent attacks Claimant’s credibility with respect to Claimant’s testimony that he had consumed only two beers and drove his truck around the town of Milfor, Illinois, for 2M hours prior to the accident.

Walter Johansen, a registered professional engineer, was called as a witness by Claimant. Mr. Johansen qualifies as a highway design expert. He testified that the standard for the construction of highway culverts of the type involved in this case had, since March 3, 1943, provided and directed that culvert structures be flush with the earth work, so as to avoid creating hazards for vehicles leaving the main travelled portion of the roadway. It appears that the standard, introduced as Claimant’s exhibit No. 1, was in effect on April 9, 1974, the date of the accident in the case at bar.

On cross-examination, Johansen admitted that he had never been involved directly in maintenance of existing highways. He further testified that the standards about which he testified were standards applicable to the construction of Interstate Highway 57 and were used on the construction of that interstate. Further, he stated that these standards were relative to the design and redesign of old facilities, as well as the construction of new facilities. Johansen did not know if there were any specifications in force in 1974 at the time of the accident on the issue of upgrading State roads to current specifications and standards, other than the fact that when a roadway was upgraded, then it must be upgraded to latest standards. Johansen testified that “just because they change the standard they don’t go out and rebuild every highway.” Johansen did not know if the road in question had ever been upgraded or reconstructed since the adoption of the new standards which require head-walls to be flush with the level of the ground on the shoulders of the highway.

The State is not an insurer of the condition of highways under its maintenance and control. (Schuck v. State (1965), 25 Ill. Ct. Cl. 209; Ohms v. State (1975), 30 Ill. Ct. Cl. 410, 414.) The State is, however, under a duty to the motoring public to use reasonable care in maintaining roadways under its control. (Ohms v. State, supra.) In order to recover, Claimant must show, among other things, that the State breached its duty and that the breach was a proximate cause of the injuries to the Claimant.

It should be noted that Claimant has not seen fit to provide the Court with any citations of authority on any issue in this case other than a number of citations, the effect of which is that proof of drinking cannot be equated with intoxication and that it is error to introduce evidence of drinking unless there is evidence of intoxication. This was a collateral issue in the case and there was no real dispute concerning this rule of law. Not only has Claimant failed to cite any authority in connection with his theory of liability in this case, but neither has the State provided the Court with authorities in opposition to Claimant’s theory. Apparently, neither Claimant nor the State felt it necessary to brief these rather important and delicate issues, and to leave the legal research to the Court and its commissioner.

We are unable to sustain Claimant’s theory of liability in this case. Clearly, the State must use reasonable care in its maintenance of roadways. However, that is not the question in this case. The critical issue in this case is the extent and nature of the duty of the State to upgrade existing roadways to meet current standards applicable to reconstruction or new construction. Construction standards for roadways are bound to be changed from time to time to meet new or different conditions and to provide the motoring public with greater safety. The record is replete with references to upgrading work that was done from time to time on other culverts such as that in the present case where the headwalls that protruded above the earth’s surface were removed. However, there was no evidence that this headwall was among those that should have been removed first or that this headwall would not have been removed in due course when State workers were able to devote their attention to this particular stretch of highway. Further, it is not unreasonable to conclude that monetary limitations would prevent the State from completely redoing every State highway at any time that the State adopts new construction standards for reconstructed or new highways. The impossibility of such a responsibility both from the standpoint of public finances and available manpower militates in favor of a rule that would not require the State to undertake massive reconstruction of existing facilities.

Nor are we convinced that Claimant has established that the existence of the headwall was a proximate cause of his injuries. The evidence was vague at best on the question of what caused Claimant’s vehicle to leave the main travelled portion of the roadway and thereby come in contact with the culvert wall. Claimant testified that he felt a pull on his vehicle similar to that which would be exerted by a flat tire. Claimant further testified that his speed was prudent and reasonable and that weather conditions were excellent immediately prior to this accident. Claimant was a young man with substantial driving experience. It is unlikely that a flat tire would have caused such a violent misdirection of Claimant’s path of travel as to have rendered this accident unavoidable and not without contributory fault on the part of the Claimant.

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


text:
    (No. 76-CC-0854
    Patrick J. Kelly, Individually and as Executor of the Estate of Catherine Kelly, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 26, 1981.

    Award affirmed on rehearing October 21, 1981.

    Zimmerly, Dodd, Ansel & Stout, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim brought by Patrick J. Kelly, individually and as executor of the estate of Catherine Kelly, deceased, who was his wife.

This claim arises as a result of an accident that took place on December 23, 1973, at the overpass of Route 128 and Route 70, in Effingham County.

The accident occurred on that section of the road that was carrying eastbound traffic. The west side of the overpass, which was the side that traffic bound in an easterly direction would have to climb, was wet but was not ice covered. At the crest of the overpass and on the downward slope to the east, it was ice covered and slippery. As a result of this icy condition, four cars, after coming up over the crest and striking the icy portion of the overpass, slid off the highway.

State Trooper Davis had been directed to the scene to help clear up the situation and to prevent any further accidents. Three of the cars had been removed and the wrecker was pulling the fourth car back onto the highway which blocked the eastbound traffic. At approximately 12:00 noon, a Ford motor vehicle came over the crest, followed by a National Carrier truck. They were not aware that the eastbound lane was closed because that could not be observed until they reached the peak of the overpass. Both vehicles slowed down and were proceeding slowly down the overpass when a yellow Freight Systems truck approached from the west and attempted to pass both the Ford and the National Carrier truck. When it hit the ice, the yellow truck struck the National Carrier truck, knocking off one of its front wheels, and it then hit the Ford vehicle, knocking it off the road. Directly behind the Freight Systems truck was a Dodge automobile driven by Mr. Kelly who was accompanied by his wife. When the National Carrier truck was stopped abruptly on the ice, the Kelly vehicle, which was unable to stop, slid into the National Carrier truck. It suffered severe damage to the front of the truck and it was evidently sides wiped by the Freight Systems truck as it also had severe damage to the rear end. As a result of the Kelly car sliding into the truck, Catherine Kelly was killed and Patrick J. Kelly was seriously injured.

Mr. Kelly’s injuries consisted of a severe injury to his knee that resulted in an operation and his leg being shortened by perhaps one and one-half inches for an extended disability. He also had other injuries, including the amputation of a finger and extended disability to his arm.

Prior to this accident, Patrick J. Kelly was a healthy man, had no physical disabilities, and was working full time as a carpenter. He was 56 years of age. As a result of his injuries, Mr. Kelly is no longer able to work.

Catherine Kelly was 65 years of age. She was not employed outside the home; however, she was a very active person in social and civic duties in her community.

We therefore have a situation in which traffic traveling to the east over the overpass on wet, but not slippery, pavement abruptly came to the crest of the overpass and immediately found themselves on ice-covered pavement so bad that four vehicles had, the morning of the accident, slid off the pavement. The problem was complicated and made more dangerous by the fact that the tow truck pulling the four vehicles back onto the road effectively blocked the east lane so that traffic traveling to the east had to contend not only with the slippery conditions on a downgrade, which could not be ascertained until the crest of the overpass had been reached, but also with a blocked pavement.

Trooper Davis gave the driver of the yellow Freight Systems truck a ticket for driving too fast for conditions. He did not give tickets to any of the other drivers involved in the accident.

It is Claimant’s contention that the State was negligent in not warning the traveling public of the dangerous conditions that existed and in failing to divert traffic from that portion of the highway which was blocked or obstructed by reason of the prior collision and the removal of the vehicles.

It is Respondent’s contention that the flares put out by Trooper Davis and other personnel at the scene should have adequately warned the traveling public that a dangerous situation existed and they should have had their vehicles under control to avoid accidents.

The evidence shows that Mr. Kelly was a full-time carpenter who had worked for one employer for approximately 22 years and was working for him at the time of the accident. In 1972, his income was $10,100. His physical problems include immobility because of damage to his left knee and it remains straight and stiff nearly all the time. This affects his ability to climb in and out of cars and prevents him from climbing ladders and stairs. He lost a finger on his right hand and cannot grip a hammer or saw.

At the time of the hearing, the carpenter rate was $12.00 per hour.

The record is clear that before the accident, both the Kellys were in good physical condition. The medical treatment received by Mr. Kelly was for multiple rib fractures, a fracture of his right wrist, a traumatic amputation of his right ring finger, a comminuted fracture of his index finger, and a severe injury of the left knee resulting in disruption of the medial collateral ligament. Exploratory surgery was performed on the left knee with repair of his medial collateral ligaments, removal of the medial meniscus, and reconstruction of the medial aspect of the joint. The amputation of the right ring finger was revised and the fracture of the right index finger was fixated. He was placed in a long arm cast after closed reduction of the radial fracture. He was further treated with bed rest and physical therapy for his hand and knee.

This accident occurred in December 1973 and he was released from the hospital in March 1974. In August of that year he was examined by a doctor and found to have no movement in the small finger of the right hand and a mild deformity of the forearm. It appears he had suffered approximately 40% permanent physical impairment to the right hand and a 40% permanent physical impairment to the left lower extremity.

Mr. Kelly’s hospital and medical bills were in the amount of approximately $14,000 and it appears that his lost earnings would exceed the sum of $75,000.

It is interesting to note that after the Kelly accident in which two trucks and two cars were involved, the State belatedly diverted traffic around the overpass. Unfortunately, as far as the Kelly vehicle was concerned, the diversion came too late because had it occurred earlier, Mrs. Kelly would undoubtedly be alive and Mr. Kelly would not have suffered the injuries he sustained.

Claimant cites Burgener v. State (1964), 25 Ill. Ct. Cl. 6, where the Court made the following observation:

“Where record indicated Respondent had notice that particular highway tended to an unusual accumulation of ice and water, and that Respondent had, in fact, known of several accidents the previous night, Respondent was held to have had actual notice of dangerous condition of highway.”

The Court further stated that “Respondent had notice of dangerous condition of highway and was negligent in failing to erect signs to warn the traveling public.” The same case laid down the following rule:

“While the State is not liable for injuries from the natural accumulation of ice and snow (Levy vs. State of Illinois, 22 C.C.R. 694), it may be held liable for failure to warn the traveling public of the dangerous condition of a highway caused by an unusual accumulation of ice, where it has had notice of such condition. (Bovey vs. State of Illinois, 22 C.C.R. 95).”

There can be no question that the State had notice of the condition of this particular area because of the accident that had occurred at approximately 8:00 a.m. that morning and the fact that the State had sent various State troopers to the scene to try to alleviate the situation. The Respondent added to the danger by blocking the east lane of traffic with a tow truck that was removing the cars that had slid off the road. This, in the Court’s opinion, created an exceptionally hazardous condition because the blockage of the road could not be ascertained by the traveling public until they had reached the crest of the overpass. It is true that the State had placed flares along the highway but with the foggy conditions that existed at the time of this accident, it was extremely doubtful that flares could have been of the help they would have been under normal conditions.

It is the Court’s opinion that Mr. Kelly was not guilty of contributory negligence and that the State failed in its duty to protect the traveling public.

An award is hereby entered in the amount of $25,000.00 for the loss of life of Catherine Kelly, and in the amount of $100,000.00 for the injuries and loss sustained by Patrick J. Kelly.


author: Polos, C.J.

text:
    (No. 76-CC-1803
    Joanne Futrell, Claimant, v. The State of Illinois, Respondent.

      Order filed April 18, 1979.

    Case dismissed on rehearing November 18, 1981.

    Cornfield & Feldman (Gail Mrozowski, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Paul Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Polos, C.J.

This cause is before the Court on the motion of Claimant for reconsideration of an order dismissing this cause. That order was entered on Respondent’s motion when Claimant failed to respond thereto. Claimant has advanced reasonable grounds for not responding to the motion, and we accordingly vacate our prior order of dismissal, and will consider Respondent’s motion on the merits.

Claimant, a State employee, has alleged that she was classified in, and paid for, a position which was lower than the classification for the work she was actually performing. She filed a grievance with the Department of Mental Health, and a formal hearing was convened. During the course of the hearing, a settlement agreement was reached. That agreement provided that Claimant was to be reallocated to a Mental Health Specialist I, and that she was to receive back pay as a Mental Health Technician II from August 1, 1972, to August 1, 1973, and as a Mental Health Technician III from August 1, 1973, to August 1, 1975.

Respondent bases its motion to dismiss upon section 9 of the Finance Act (Ill. Rev. Stat. 1975, ch. 127, par. 145), which provides:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for which remuneration had already been made, except that wage payments made pursuant to the application of the prevailing rate principle or based upon the effective date of a collective bargaining agreement between the State, or a State agency and an employee group shall not be construed as an additional payment for work already performed.”

Claimant argues that the foregoing statute has no application to the case at bar, as it was intended to prevent fraudulent undertakings to increase compensation of persons already fully paid for the services they performed for the State of Illinois. Claimant argues that in this case she was not fully paid for the services which she actually performed for the State of Illinois.

However, this Court is bound to give effect to the plain meaning of a statute. Section 9 of the Finance Act is a clear and unequivocal prohibition against any additional payments “for work already performed” for payroll periods “for which remuneration had already been made.” The statute provides amounts paid to State employees for services rendered shall be considered as full payments for all services rendered for that payroll period. There are but two exceptions to this general prohibition: retroactive payments to tradesmen who are paid in accordance with the pay scale prevailing in the geographic area of their employment, and claims for retroactive pay based upon the effective date of a collective bargaining agreement.

Clearly, both of these exceptions relate to union-negotiated wage scales, and were enacted for the purpose of overcoming the time lag inherent in applying newly negotiated wage scales at the appropriate effective date.

The history of the Finance Act lends support to a strict construction of its provisions. The Act was passed in 1919, and until August, 1967, there were no exceptions to the blanket prohibition against retroactive wage payments. In 1967, the exceptions relating to union-negotiated wage scales were added. The Act was amended on at least one other occasion, but the legislature kept intact the prohibition against payments of additional sums for work already performed.

This Court has constantly held that the statute prohibited further payment to a State employee for work already performed, where the employee had accepted a payroll warrant for the pay period in question. See Hunter v. State, 9 Ill. Ct. Cl. 1; Novak v. State, 10 Ill. Ct. Cl. 258; Smith v. State, 11 Ill. Ct. Cl. 374; Hollander v. State, 14 Ill. Ct. Cl. 40; Clayton v. State, 21 Ill. Ct. Cl. 321.

The absence of any legislative action to expand the amendments to the statute, during a period when this Court has held that the statute prohibited payment of additional sums for work already performed, raises a presumption that the Court’s construction of the statute accurately reflected the intention of the legislature.

We must therefore conclude that section 9 of the Finance Act (Ill. Rev. Stat. 1975, ch. 127, par. 145) bars the instant claim.

For the foregoing reasons, the motion of Respondent to dismiss this claim is hereby granted, and this cause is dismissed.


text:
    (No. 76-CC-1807
    Vernice Bibbs, Claimant, v. The State of Illinois, Respondent.

      Order filed November 18, 1981.

    Cornfield & Feldman, for Claimant.
    Tyrone C. Fahner, Attorney General (Paul Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

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

Finds that Claimant filed a grievance for being denied the right to attend the November 1974 training class in preparation for a promotion to Mental Health Technician II; that during the pendency of the grievance, Claimant did in fact attend a training class and received a certification of completion on June 9, 1975; that Claimant’s name was placed on an eligibility list from which she was duly promoted on September 16, 1975, in full compliance with Rule 2 — 170 for the Department of Personnel Rules; that after Claimant was promoted, the Department of Mental Health hearing officer ruled that Claimant was denied the right to attend the November 1974 training class and was entitled to additional retroactive back pay as if she had been promoted to Technician II in November 1974; that the hearing officer’s ruling of additional retroactive back pay as if Claimant had been promoted in November 1974 was in direct conflict with Rule 2 — 170 of the Department of Personnel Rules and was in direct conflict with Section 9 of the Finance Act (Ill. Rev. Stat. 1973, ch. 127, par. 145); that even if Claimant had attended the November 1974 training session, Claimant would still be classified as a “trainee” for the entire period of this claim, which is consistent with this Court’s ruling in Anderson v. State (1980), 34 Ill. Ct. Cl. 316, where this court denied the additional wages for a trainee.

It is hereby ordered that the motion of Respondent for judgment in favor of Respondent be and the same is hereby granted and the claim is hereby denied.


author: Poch, J.

text:
    (No. 76-CC-1821
    Walter York, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 21, 1981.

    Thomas Bielinski, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This case comes to be heard upon a joint stipulation entered into by the parties. According to the agreed-upon facts, this claim arose as follows:

On May 7, 1974, Claimant was an inmate at Joliet Correctional Center where he worked as a cook in the residents’ kitchen. As a cook, one of his responsibilities was the operation of the stove, including the lighting of the oven. On the aforementioned date, Claimant was attempting to light the oven when it exploded in his face, apparently as a result of gas leakage. The explosion caused him to suffer burns about his face and body, for which he seeks recovery of damages.

Respondent has conceded that it was negligent in failing to maintain the oven in a safe condition, and that its negligence was the sole and proximate cause of Claimant’s injuries. It is further conceded that Claimant was acting with due care for his own safety.

Both parties agree that Claimant’s damages equal $1,500.00 and that an award in that amount would constitute full and final satisfaction of this claim.

Although the Court is not bound by a joint stipulation such as this, we hesitate to interpose a controversy between the parties where none appears to exist. In this case, the stipulated facts are sufficient to warrant a finding of negligence on Respondent’s part and liability for Claimant’s injuries. As for the agreed-upon award, we see nothing to indicate that this amount was not determined by a thorough consideration of all the elements of damages relating to this case. We therefore accept the stipulation in its entirety, including the suggested award.

Claimant is hereby awarded the sum of $1,500.00 (one thousand five hundred dollars and no cents) as full and final satisfaction for the instant claim.


text:
    (No. 76-CC-1936
    McLean County School District No. 5, Claimant, v. Illinois Soldiers’ and Sailors’ Children’s School, Respondent.

      Opinion filed June 7, 1982.

      Order on denial of motion for reconsideration filed August 26, 1982.

    Fleming, Messman & O’Connor, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant filed a claim for monetary damages as a result of property loss resulting from the destruction of windows and other property at the Eugene Field Elementary School by persons who were wards of the Illinois Soldiers’ and Sailors’ Children’s School, Normal, Illinois.

Claimant waived the right to a hearing and submitted briefs along with evidentiary depositions of Charles Me Anally and Edward Schweinberg. There was no oral testimony submitted and the commissioner did not have the benefit of questioning any of the parties involved.

The Illinois Soldiers’ and Sailors’ School is located in Normal, McLean County, Illinois, and is a facility operated by the Department of Children and Family Services. The facility consists of 52 acres with several buildings on its grounds. At the time of the occurrence, there were approximately 65 children in residence.

There are three cottages that house students and all are connected to a central core. From this core, entrance can be gained to any of the three cottages. One person is assigned to this core from 10:30 p.m. until 6:30 a.m. One of the duties of this person is to visually observe the three cottages and to conduct intermittent bed checks of the students. It was evidently impossible for the attendant to see the windows of any of the three cottages from where he was stationed.

Each cottage had an exterior door that was locked at night to prevent ingress. Each door was equipped with a panic bar for emergency egress. The cottages’ windows are 2½ to 3 feet from the ground and can be opened from the interior to exit the cottages. Each cottage has a “cottage parent” who was on duty from 6:30 a.m. until 10:30 p.m. After the “parents” leave at 10:30 p.m., the supervisor in the core area comes on duty. A duty officer comes on duty at 5:00 p.m. until 1:00 a.m. to patrol the grounds on a non-set schedule. After 1:00 a.m., no duty officer is present.

The facility is an open institution in that doors are not locked to keep the children in nor is the facility encircled with a fence.

The investigatory report filed by the Department of Children and Family Services stated that Gordon Bolden and James Huggins admitted using croquet mallets to break the Claimant’s windows and were apprehended by the State police while driving a stolen automobile. This incident occurred during the late evening on February 25, 1976, or the early morning of February 26, 1976. This damage occurred while the children were at liberty without the permission or knowledge of the Respondent.

Gordon Bolden was a delinquent minor who had been involved in many activities such as burglary, theft, shoplifting, criminal damage to property, aggravated battery and truancy, and had also been involved in breaking lights and windows, on the Respondent’s grounds. He had escaped from Respondent’s quarters on at least eight previous occasions.

James Huggins has not been classified as a delinquent minor but had been involved with Gordon Bolden in the window breaking incident on Respondent’s grounds and had run away from Respondent’s facility on several occasions.

The record indicates that it was characteristic of many of the children to run away from the facility and it experienced an average of 1.2 runaways in each 24-hour period. After the incident in question, Respondent closed the cottage windows so the children could not open them to exit the building, which is how the two children responsible for this particular incident had gotten away from Respondent. It appears that by closing the windows, the number of runaways has been reduced.

This Court set down the rules that must be followed before recovery can be made: (1) that an inmate escaped from an institution over which the State had control; (2) that the inmate caused the damage claimed while he was at liberty after his escape; (3) that the proper State authority establishes upon investigation that the damages were caused by the escapee; and (4) a determination of the nature and extent of the damages. 26 Ill. Ct. Cl. 15.

The record shows that the damage to Claimant’s facility was in the amount of $608.59.

Claimant having supplied the requisite proof, as set forth in Castleman v. State (1976), 31 Ill. Ct. Cl. 382, and Respondent having failed to offer any evidence in rebuttal, award is hereby entered in favor of Claimant in the amount of six hundred eight dollars and fifty-nine cents ($608.59).

ORDER ON DENIAL OF MOTION FOR RECONSIDERATION

This matter comes before the Court upon motion of Respondent for reconsideration of an award heretofore entered by this Court.

Respondent’s position is that the Court erred in entering an award for damages resulting from the acts of two runaways from the Illinois Soldiers’ and Sailors’ Children’s School in Normal, Illinois.

The Court, in viewing the record and in particular the commissioner’s report, finds the following to be the apparent facts in this case. The two individuals involved were Gordon Bolden and James Huggins. The record calls attention to the fact that there are 65 inmates in the facility from which the individuals escaped and that they are all there because they have been found to have been in need of some kind of supervision or were classified to be delinquent minors.

The record shows that Gordon Bolden had been involved in many activities, including burglary, theft, shoplifting, criminal damage to property, aggravated battery and truancy and had been involved in breaking lights and windows on the Respondent’s grounds. It also appears he had run away from the institution on at least eight prior occasions. James Huggins, the other individual involved, had not been classified as a delinquent but had been involved with Bolden in the window-breaking incident on Respondent’s grounds and had run away on several occasions from Respondent.

It is also interesting to note that on the occasion of the incident on which this claim is based, they were in a stolen car when they were captured.

The record discloses that after 10:30 p.m., there was one person whose duty was to more or less supervise the three cottages in which the inmates were confined. He was situated where he could not see the windows of the cottages. The windows were left unlocked and were approximately 2M to 3 feet above the ground and could be opened from the interior. After 1:00 a.m., there was no duty officer at the cottages. The record shows the doors were not locked to keep the inmates in. A significant fact is that after this incident, the windows were closed and that prior to this incident, the institution was averaging 1.2 runaways in each 24-hour period. It also appears that by the simple act of closing the windows, the number of runaways has been reduced.

Respondent calls the Court’s attention to two cases. In the case of Johnson v. State (1981), 34 Ill. Ct. Cl. 234, the damages were caused during the initial escape while the escaped inmate was actively being pursued by agents of Respondent. Further, there is nothing in the opinion in that case that would indicate the individual escaping had a record anywhere near equal or parallel to that of one of the inmates involved in the present matter. The second case, Curiel v. State (1979), 33 Ill. Ct. Cl. 56, involved a claim where an inmate while on off-grounds activity stole a motor vehicle. He was off-grounds as he was supposed to be going to the control center for medication. The record in this case is also silent as to whether or not his previous activities would lead one to believe he would attempt to escape or create further problems or damages. The Court is of the opinion that both of these cases contain facts that do not in any manner, shape or form conform to the present case.

In Ingram v. State (1979), 33 Ill. Ct. Cl. 134, the Court laid down the rule that the State is liable for actions of escaped inmates if it was negligent in allowing the escape. This case also laid down the rule that where it is shown that an inmate of a State correctional facility has escaped, a presumption of negligence arises and it becomes incumbent upon the State to rebut the presumption.

It is the Court’s opinion that negligence has been established in this matter and while the institution from which the individuals escaped was not in one sense of the word a “correctional institution,” it was a State institution where the State had charge of the inmates. It also had the records of the individuals causing the damages and the Court believes the State was negligent in its duty in not preventing thé escape.

To follow Respondent’s argument to its logical conclusion, the citizens of the State of Illinois would be open prey to individual activities, such as those of Gordon Bolden and James Huggins. Their record of escapes and criminal activities, as stated previously, certainly should have put the State on notice of the kind of supervision that was required and should have strongly indicated to Respondent that more restrictive measures should be enacted and complied with. The relatively simple matter of closing the windows, which evidently alleviated some of the escapes, is indicative of the fact that Respondent was indeed negligent in handling individuals whose propensities were as well known as those of Bolden and Huggins. It is the Court’s opinion that to condone activities such as occurred in this case, with the knowledge the State had of the proclivities of its inmates, would be an open invitation to inmates to indulge in all sort of illegal activities to the detriment of every resident of the State of Illinois.

Motion for reconsideration denied.


text:
    (No. 76-CC-1987
    William J. Jeanguenat, Claimant, v. The State of Illinois, Respondent.

      Order filed April 29, 1982.

    Louis E. Olivero, for Claimant.
    Tyrone C. Fahner, Attorney General (Anthony C. Raccuglia, Special Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant originally filed a suit in the circuit court of La Salle County against the city of Peru, an Illinois corporation, and Mark S. Mills. The city of Peru, an Illinois corporation, was dismissed out on motion. On August 24, 1978, Claimant was awarded a jury verdict in the amount of $5,000.00 against Mark S. Mills. This amount was paid to Claimant and a release and satisfaction of judgment was executed at the time of payment.

It is Respondent’s position that the release of one tortfeasor is the release of all. In support of its position, Respondent cites the case of Elberstett v. Country Mutual Insurance Company (1979), 79 Ill. App. 3d 407, and McGill v. State of Illinois, 29 Ill. Ct. Cl. 450. In the McGill case, the Court held that “the law is well established in this state, as respondent suggests, that the release of one tort-feasor releases all joint tort-feasors” and refers to Illinois Law & Practice Releases §25. The Court further held that although the joint-tortfeasors were sued in different forums, this did not change the rule.

It is hereby ordered that this case be, and the same is, dismissed.


text:
    (No. 76-CC-2144
    George B. Silverman et al., Claimants, v. The State of Illinois, Respondent.

      Order filed February 10, 1982.

    Udoni, Silverman, Connelly and Gaynes, for Claimants.

      Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

The record discloses that on August 4, 1969, the Claimants leased to the County of Cook for the use of the Cook County Department of Public Aid a building in Maywood, Illinois. The term of the lease was five years, commencing on October 1, 1969, and ending on September 30, 1974. Due to the fact that Claimants were required to do some remodeling on the premises before it could be occupied, Claimants did not actually take possession until October 1, 1969.

It appears that by virtue of the provisions of Public Act 78-363, effective January 1, 1974 (Public Aid Code, Ill. Rev. Stat., ch. 23, par. 12 — 18.1), the Cook County Department of Public Aid ceased to be a governmental instrumentality of the county and became an instrumentality of the State of Illinois, and the State assumed the instant lease.

Later by an undated amendment attached to the lease establishing the term of the lease as commencing March 15, 1970, and ending March 14, 1975, the parties’ rights and obligations with respect to terminating and renewing the lease were set forth.

On June 10, 1974, one of the Claimants wrote to the Cook County Department of Public Aid to inquire of it its intentions with regard to renewing the lease for an additional 60 months.

On July 17, 1974, an employee of the Illinois Department of Públic Aid wrote to Claimants reminding them that effective January 1, 1974, the interest of the Cook County Department of Public Aid was transferred to the Illinois Department of Public Aid and notified them to send all notices in regard to the lease to the Illinois Department of Public Aid.

. On December 13, 1974, Mr. Roland Burris, director of the Department of General Services, answered Claimant’s letter of June 10, 1974, and informed him that the State of Illinois, by the Department of General Services for the use of the Illinois Department of Public Aid, wished to extend its present lease for an additional three and one-half months, commencing March 16, 1974, and terminating June 30, 1975. Claimants take the position that this letter merely re-defined the term of the lease and extended it to June 30, 1975, but in no way affected Respondent’s rights to renew under section 8 of the lease nor its obligations to notify the Claimants in writing if it was not going to exercise its rights to renew. Claimants further contend that on June 30, 1975, the lease rolled over for an additional 60 months. There is no explanation in the record as to why Claimants brought suit for only 12 months rent rather than 60 months rent.

It is the opinion of this Court that the Respondent, by its correspondence, indicated that it desired to terminate the lease as of June 30, 1975, and that such termination was accepted by the written signature of Claimant Silverman.

Claim denied.


text:
    (No. 76-CC-2249
    Robert Patis, Claimant, v. The State of Illinois, Respondent.

      Order filed August 24, 1981.

    Alan Kawitt, for Claimant.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court on the joint stipulation of Claimant and Respondent for the entry of an award in this case. The parties stipulated additionally to the facts alleged in Claimant’s complaint, to wit: that Claimant was a judgment creditor of one Lee Roy Calvin, an employee of the Illinois Department of Transportation as of December 17, 1974, the date of service on Respondent of wage deduction summons in case No. 72-M1-110082 in the circuit court of Cook County, Illinois (which summons was returned February 4, 1976, and continued to July 8, 1976), that Respondent failed to withhold any sums from Calvin’s wages while Calvin remained in its employ, and that Calvin left Respondent’s employ on August 7, 1976.

The Court being otherwise fully advised, it is hereby ordered that an award be and is hereby entered in favor of Claimant in the amount of $125.00 (one hundred twenty-five dollars) in full satisfaction of his claim.


text:
    (No. 76-CC-2279
    Kathleen Martens, Claimant, v. The Board of Trustees of Southern Illinois University, Respondent.

      Opinion filed October 29, 1981.

    Charles E. Hamilton, for Claimant.
    Donovan, Hatch & Constance (Harold A. Donovan, of counsel), for Respondent.
   Poch, J.

On August 19, 1975, the Claimant, Kathleen Martens, then age 20, and two friends attended a rock concert at the Mississippi River Festival, a program of summer entertainment held on the grounds of Southern Illinois University at Edwardsville (SIU-E). Ushers, security personnel.and such services are provided by full- or part-time employees of SIU-E. The three attended as ticket-purchasing customers.

The River Festival is held in a natural amphitheatre. There is a stage under a pavilion at the front of the amphitheatre with chairs arranged for seating within the pavilion. Above this, on the slopes of the bowl that forms the amphitheatre, patrons sit on the grass in the open.

Claimant and her two companions arrived at the site at about 4:30 p.m.; the concert was scheduled to begin at 7:30 p.m. They initially picnicked outside the festival site and entered when the gates opened at 6:30 p.m. They took seats on the grassy hillside near and to one side of the pavilion. The SIU-E personnel at the gates checked their cooler and blankets for drugs and alcoholic beverages; no inquiry was made as to fireworks.

At about dusk fireworks began to be set off by various unknown persons in the crowd attending the concert. These consisted of firecrackers that merely explode and “bottle rockets”, which shoot into the sky and produce vivid colors without sending any sort of hard projectile into the crowd. During this activity there were no public address requests that the fireworks cease, nor were there any signs or warnings in evidence anywhere prohibiting or referring in any way to fireworks. No witness was able to testify as to any action taken by SIU-E personnel in response to the fireworks, although Gary Gunter, chief of police for SIU-E (who was not present at the festival site on the date in question), testified that their policy was to confiscate any fireworks his men found in any patron’s possession.

The crowd for this particular River Festival performance, Jefferson Starship, numbered about 20,000 persons, which was considered to be as large a crowd as would be expected to attend any River Festival event. Gunter testified that the number of SIU-E personnel on duty, both ushers and regular security people, for this night was between 200 and 250. He also testified that trouble is to be anticipated at a rock concert such as was held that night because of the nature and size of the crowd.

Claimant testified she had been to rock concerts before this night at the River Festival and had witnessed fireworks at every one. However, she had never seen any that involved the firing of any projectiles into or over the crowd.

At about 8:15 p.m., a bright pink, large flare caught the attention of Paula Lehman, one of the Claimant’s companions. It went up from the rear of the amphitheatre within the festival area and flew over where Claimant and her companions were seated. Miss Lehman testified that it reminded her of a signal flare, and she thought it would pass beyond them. Claimant’s attention also was drawn to this bright flare, and she commented that “this is going to hit someone.” The next thing either witness remembered was Claimant’s being struck in the forehead by the flare’s projectile.

This projectile, admitted into evidence, consists of a metal tubular body about eight inches long and II2 inches in diameter. About three inches of the body was solid; the remainder, hollow. A collar with fin-like projections is attached to and slides along the solid end.

No witness could testify as to who set off this flare or whether any SIU-E personnel were in the area from which the flare was set-off.

Claimant was cut on her forehead just above the bridge of her nose. She was taken by ambulance to the emergency room of a local hospital, where the laceration was sutured. She subsequently lost three days from her employment, an income loss of $63.84. She incurred a bill of $100.00 from the emergency room physician, a bill of $73.00 from the hospital and a bill of $47.00 from the ambulance.

Thereafter, Claimant was treated by Dr. Donald Buser, her local physician. He testified that he first saw her on September 10,1975, for injuries resulting from the August 19 accident. His examination revealed a suture line above the nose and along the midline of the nose extending from the area above the inside of the left eye to the area above the inside of the right eye, three-fourths of an inch long. There was also a one-inch laceration along her nose. She was complaining of constant headaches. X-rays and an EEC were taken, both of which failed to disclose anything. He prescribed medication to relieve her headaches.

Dr. Buser saw Claimant for more time in the next nine months, during which time the frequency of her headaches had been reduced to once a month. Dr. Buser’s bill for his treatment during this period was $73.00 and the EEC exam at the hospital cost $45.00.

Claimant testified that her eyes were swollen shut for three to four days following the accident and that she . had bruises for about three weeks.

Claimant still has a noticeable half-moon shaped scar over the bridge of her nose plus a scar running vertically below it onto the bridge of her nose.

The possessor of land has a duty to use reasonable care to protect an invitee against a known, dangerous condition if it constitutes an unreasonable risk of harm to the invitee and if the possessor should expect that the invitee will not discover or realize the danger or will fail to protect himself against the danger. (William v. Wiewel (1976), 36 Ill. App. 3d 478, 344 N.E.2d 34.) It is undisputed that Claimant was an invitee of Respondent. The issues to be determined are therefore: (1) Was the situation enough to constitute a “known, dangerous condition”? (2) Did Respondent have reason to believe that Claimant would not realize the danger or would fail to protect herself from the danger? and (3) Did Respondent use reasonable care to protect Claimant from the actions of third persons?

According to testimony, the launching of fireworks or projectiles was a common occurrence at concerts hosted by SIU-E. The legislature has seen a situation. (Ill. Rev. Stat., ch. 127½, par. 128). The legislation was specifically designed to protect human life and property. It evidences a clear legislative expression that lighted, exploding, and flying objects are dangerous to the public. Moreover, as more persons are exposed to such dangerous objects, the risk of injury is proportionately increased. The situation at the festival on August 19, 1975, was clearly dangerous; and since testimony indicates that occurrences of fireworks at rock concerts hosted by Respondent were the rule rather than the exception, Respondent should have been aware of the dangerous situation.

The second question, then, is whether Respondent should have expected that Claimant would not discover or realize the danger or would fail to protect herself against the danger. Testimony indicated that there were between 200 and 250 ushers and regular security people on duty the night of the incident. Claimant had every reason to believe that these people were there for her protection and would take necessary steps to eliminate any dangerous situation — especially a situation which was prohibited by State law. Respondent was the person charged with enforcing this law, and it cannot transfer to Claimant the duty to protect herself any more than she did in such a large public gathering.

The final question is whether Respondent used reasonable care to protect Claimant from the actions of third persons. The rule of law regarding a landowner’s duty to guard an invitee against the actions of a third person, whether negligent or criminal, is that the duty will not be extended to the owners unless there is knowledge or previous incidents or special circumstances which would charge the owners with knowledge of the danger and the duty to anticipate it. (Mancha v. Field Museum of Natural History (1972), 5 Ill. App. 3d 699, 283 N.E.2d 829.) It has already been determined that Respondent had knowledge of the danger, and testimony confirms that it did anticipate the danger. Gary Gunter, chief of police for SIU-E, testified that on a night such as the night in question trouble was always to be anticipated because of the nature and size of the crowd. Respondent therefore is charged with the use of reasonable care to protect Claimant from danger. Respondent failed in this respect. There is nothing in the record to show any action by Respondent other than a cursory search prior to entering the premises. Respondent presented no testimony that its employees took any steps to prevent the fireworks after they began being set off inside the premises. Because of the statutory prohibition, Respondent has an affirmative duty as a State agency to enforce the law or suffer the consequences of its inaction. The failure to even warn those violating the law after the fireworks began bespeaks to the violators at least tolerance of their actions by SIU-E. Such encourages rather than discourages the illegal and unsafe activity.

We believe an award of $10,000.00 for lost wages, for pain and suffering, hospital, doctor and ambulance bills, and for permanent scars is a just and fair award.

Claimant is hereby awarded the sum of ten thousand dollars ($10,000.00).


text:
    (No. 76-CC-2461
    Paul G. Hollis, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 6, 1981.

    Patrick J. Moran, for Claimant.
    Tyrone C. Fahner, Attorney General (Kevin J. Caplis, Special Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim for personal injuries arising out of a bicycle accident on a State highway. Claimant alleges that he was injured on October 10, 1975, at the overpass of St. Charles Road and the I-90 Expressway. Claimant alleges he was riding a bicycle which struck a pothole in the pavement causing him to be thrown from the bicycle which resulted in the injuries complained of.

Claimant, a young man of 18 years of age and an experienced bicyclist, was operating a 10-speed bicycle eastbound in the right hand lane of St. Charles Road at or near the bridge overpass over the 1-90 Expressway. He had been over the road in question approximately six months prior to the time of the accident.

The overpass bridge had a severe incline and as Claimant reached a point about three quarters of the way toward the crest of the incline, he glanced to his left for a few seconds to look for traffic coming up behind him. He then felt a jolt and remembers nothing further until he awoke in the hospital. He never saw the pothole in the pavement which he claims caused his bicycle to fall. The pothole was approximately four feet square and about three inches deep.

The accident occurred on a clear day at about noon. Claimant alleges he did not know what speed he was going at the time of the accident but there were no obstructions to his vision except for an automobile travelling about 30 feet ahead of him in his lane of traffic.

A local police officer testified that, after being called to the scene of the accident, he found Claimant’s body 22 feet west of a pothole in the pavement. Claimant’s bicycle was found by the officer to be 38 feet west of the pothole. He further testified that the size of the pothole was as heretofore indicated. He testified that he had travelled the area of the accident within a few weeks prior to the accident but had not noted any potholes nor had he reported any potholes to the State Department of Highways.

Before Claimant can recover, he must establish the fact that there was negligence on the part of Respondent, that said negligence was the proximate cause of the injuries, and that he was not guilty of contributory negligence.

The record is devoid of any actual knowledge on the part of Respondent as to the existence of the pothole and the only constructive knowledge would be the result of the testimony of the attorney for Claimant who qualified as a civil engineer. He stated that the pothole, in his opinion, was in existence between 30 and 90 days prior to the accident.

There are conflicting stories as to how the accident occurred. A nurse from Memorial Hospital of Du Page County testified, from hospital records, that Claimant stated, on his arrival at the hospital, that a wheel had come off the bicycle throwing him on his face, thereby causing the injuries complained of.

Claimant’s bicycle was collapsible. His testimony was to the effect that he turned to his left for a period of 10 seconds and was not watching the road ahead of him and therefore did not see the pothole in the pavement. He testified that he remembers hitting the pothole and that his next recollection is waking up in the hospital.

The evidence shows the pavement was dry and there were no obstructions to Claimant’s vision.

This Court has repeatedly held that the State is not an insurer of persons travelling upon its highways but that it does owe ordinary care in the maintenance of its highways. See 27 Ill. Ct. Cl. 342.

It is the Court’s opinion that Claimant has not proven that the State had actual or constructive knowledge of the defect in the highway and therefore was not negligent in the maintenance of said highway. Claimant must also prove that he was free from contributory negligence at the time of, or immediately prior to, the accident.

This Court has held that if Claimant looks but does not see the defect that caused his accident, the State is not responsible.

In this case, the testimony of Claimant is to the effect that he, for a period of 10 seconds or more, was not looking ahead and did not see the defect in the pavement which was approximately four feet square.

This Court has previously held that “where evidence showed that Claimant could have avoided hole in pavement had she been watching, freedom from contributory negligence was not proven.” See Schnell v. State of Illinois, 24 Ill. Ct. Cl. 257.

In the case of McAbee v. State of Illinois, 24 Ill. Ct. Cl. 374, this Court held as follows:

“As we have held many times, and as have other courts, this Court will not tolerate one testifying that they looked and did not see something, which appeared from their testimony would be very apparent.”

In this case, a four-foot-square hole in the pavement would have been evident to anyone who had been watching the road ahead. The McAbee case is nearly identical to the present case. A bicyclist was injured on a clear day with no obstructions to mar the visibility and Claimant did not see the hole in the highway that caused the accident.

It is the Court’s opinion that Respondent did not have actual constructive knowledge of the defect in question and the only attempt to prove such knowledge was by the testimony of Claimant’s attorney. The supreme court of the State of Illinois, in the case of McKey v. McKean (1943), 384 Ill. 112, 51 N.E.2d 189, used the following language where the attorney for one of the parties testified in the cause he was trying:

“This practice has been repeatedly condemned by this court. The testimony of an attorney in a case under such circumstances is entitled to little or no weight or credit.”

The testimony by the attorney for Claimant being the only evidence as to actual or constructive knowledge by the Respondent, Claimant has failed in his proof in that respect and also in his failure to prove he was free from contributory negligence.

This cause is dismissed.


author: Roe, C. J.

text:
    (No. 76-CC-2491
    William Roy LaMasters, Jr., Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 9, 1981.

    Harlan Heller, Ltd. (Brent D. Holmes, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

Claimant pursues this claim for personal injuries sustained by him on October 30, 1975, while he was an inmate at the Illinois State Penal Farm at Vandalia, Illinois.

On October 30, 1975, the Claimant was working in a kitchen at the penal farm at the request of agents, servants and employees of the Department of Corrections. On that date, Claimant was involved in the preparation of instant mashed potatoes and was required to carry a three-gallon pot of hot milk and butter from one location in the kitchen to another. Claimant alleges that through the negligent fault of Respondent, Claimant was caused to fall and suffer serious burns on his body, for which he now seeks remuneration.

Claimant testified that he and two other inmates were cooking at the institution on the day in question. Claimant testified that some mashed potatoes had fallen on a grate which runs in front of the vats where mashed potatoes are prepared. The grate was 18 inches wide and ran all along in front of the vat in the kitchen. Claimant testified that he slipped on the mashed potatoes that had fallen on the grate and the hot milk and butter burned him. The burning resulted in scarring on his right hip and on his back and side. Claimant testified that he suffered considerable pain and discomfort as a result of his injury. Prior to the accident, Claimant had been cooking in the kitchen approximately six months. Although Claimant admitted that he was the one that was making the potatoes in the area where the slippery grate was located, he did not know that there was a slippery condition on the grate. Claimant testified as follows:

“I seen the potatoes on the grate, the ones on the tile I did not see, which tripped me, and I slipped the rest of the way.”

Claimant testified that the floor in the kitchen was “always wet.” Sometimes the floor in the kitchen was wet at the time the inmates arrived to prepare the meal. Claimant further testified that sometimes the floor was dry, “but, not really dry” and that it was impossible to cook a meal without making the floor wet.

Claimant knew that it was dangerous around the vats. Claimant testified “oh, yeah, everybody knew it was dangerous around the vats.” Claimant knew that it was dangerous before this incident. Claimant did not know how the mashed potatoes got on the floor.

Claimant argues that the State may be held liable for injuries to an inmate in a State correctional center when injuries are caused by the negligence of the officers, agents, or employees of the State. (Moore v. State (1951), 21 Ill. Ct. Cl. 282). Claimant continues that it is undisputed that his injuries were caused by slipping on a foreign substance “of unknown origin” on the kitchen floor. However, Claimant testified on more than one occasion that he knew that the floor in the kitchen was slippery and in fact had seen mashed potatoes in an area immediately adjacent to where he slipped and fell. Claimant had notice of a dangerous condition that existed in front of the vats where he fell and was injured. Claimant argues, however, that “the mere fact that Claimant knew that he was working in a dangerous area does not render his actions to be contributory negligence.” We do not agree.

Claimant was aware of the slippery condition on the floor and was aware of the presence of mashed potatoes on the floor in the area where Claimant was required to walk. Claimant’s uncontroverted testimony is that he slipped on mashed potatoes in an area immediately adjacent to an area where he had noticed mashed potatoes on the floor. Claimant cannot avoid the responsibility of showing due care for his own actions in prosecuting this case against the State of Illinois. Claimant has failed to show due care and his claim must therefore be denied.

It is therefore ordered that Claimant’s claim be denied.


text:
    (No. 76-CC-2606
    Lewis University, Claimant, v. The State of Illinois, Respondent.

      Order filed May 3, 1982.

    Sunn, Stefanich, McGarry and Kennedy, Ltd., (Roman Okrei, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Paul Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter coming on to be heard upon a joint stipulation for the final portion of the complaint, which has been agreed to by Claimant, Lewis University, by its attorney, Roman Okrei, and by the Respondent by Tyrone C. Fahner, Attorney General of the State of Illinois, and the Court being fully advised in the premises:

Finds: The stipulation pertains exclusively to the contract period from October 1, 1973, to May 31, 1974.

The audit of the program during this contract period from October 1, 1973, to May 31, 1974, showed that Claimant had exceeded its line item contract amount by $6,215.45 and should not receive reimbursement for this amount.

The total contract amount claimed for this final period was $111,858.57 with $93,539.16 already paid, .leaving a difference of $8,319.71 in dispute. By reducing the $6,215.45 which exceeded the line item budget amounts from the disputed amount, the actual amount remaining for reimbursement on the project for this final contract period was $2,104.26.

It is hereby ordered that Claimant is granted, a final award of $2,104.26 for the contract period from October 1,1973, through May 31,1974, and that upon the award of this amount, the entire complaint in this matter has been completed.


text:
    (No. 76-CC-2682
    Nathan Olken and Nora Olken, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 12, 1981.

    Hoffman and Davis (Paula Jacobi, of counsel), for Claimants.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This cause comes before this Court on a stipulation by the parties. The complaint herein sounds in the breach of a real estate lease contract entered into between the Claimants and the Respondent.

The lease was for property located at 560-62 West Roscoe Street in Chicago, Illinois. The Respondent had agreed to lease the property for two years commencing July 1, 1975, and ending June 30, 1977, at a monthly rental of $3,083.33. Although the State took occupancy of the premises on July 1, 1975, it vacated and terminated the lease in mid-August 1975.

The complaint herein contains two counts. The first count seeks damages for the Respondent’s alleged breach of that provision of the lease providing that the premises would be returned in as good condition as at the date of taking possession. The Claimants alleged that certain damage had been done to the leasehold and that certain items of personal property were missing at the time the premises were returned to the Claimants. Count I of the complaint seeks $18,325.00 in damages.

Count II of the complaint alleges that the Respondent had wrongfully terminated the lease without justifiable cause as provided in the lease. The Claimants seek the total rent due under the lease ($73,999.92) less previous payments by the State ($9,250.00) for a net total of $64,749.92.

In the stipulation, the Respondent has admitted that the certain items of personal property were removed from the premises while it was occupied by the Department of Corrections. In addition, the Respondent has admitted that the termination was wrongful.

After a series of arm’s-length negotiations, the parties have agreed to compromise this claim subject to this Court’s approval. The amount agreed upon is $10,000.00 (ten thousand and 00/100 dollars) which would satisfy both counts of the complaint. The parties have pointed out the difficulty of proof because of the passage of time since the events in question and the present unavailability of competent witnesses.

This Court does not have to accept the conclusions and recommendations of any party before it concerning the resolution of suit where the State is obligated to pay money. This Court is mindful of the responsibilities imposed upon it by the legislature in determining the validity of claims against the sovereign. The main task this Court undertakes is to protect State funds from being paid out without valid reasons.

However, where, as in the present case, the State has admitted that it has caused damage to a Claimant and that Claimant is willing to compromise his claim, this Court will not set aside the expressed intentions of the parties where the negotiations have been at arm’s-length and resolved with full authority by both sides. This is especially true where the amount agreed upon appears to be reasonable under the circumstances of the case. We, therefore, approve the stipulation of the parties now pending before the Court.

It is hereby ordered, that $10,000.00 be and the same hereby is, awarded to Nathan and Nora Olken, Claimants, in full and complete satisfaction of any and all claims arising out of the complaint filed herein.