author: Raucci, J. Raucci, J.

text:
    (No. 89-CC-0351, 89-CC-0352 cons.
    Joseph Davis and Jeffrey McCormick, Claimants, v. The State of Illinois, Respondent.

      Opinion filed March 24, 1992.

      Opinion filed September 24, 1996.

    Kogut & Beuke (John M. Kogut and Edward F. Cozzi, of counsel), for Claimants.
    Roland W. Burris and Jim Ryan, Attorneys General (Thomas L. Ciecko and Janice Schaffrick, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Raucci, J.

This matter comes before us on the Respondents motion to dismiss for failure of the Claimant to exhaust his remedies by not bringing a civil action against the driver of the vehicle, in which Claimant was a passenger at the time Davis collided into a concrete wall as a result of taking evasive action to prevent collision with a State police car at an intersection.

We have considered the briefs and oral arguments of the parties and proceed to decide the issue presented to us.

Respondents position is best summarized by the following statement from its reply brief:

“The essence of the (exhaustion of remedies) requirement is that it is incumbent on the claimant to have the issue of the drivers negligence adjudicated in a civil action before seeking final determination of this claim in this Court.”

In support of this proposition, Respondent relies on our decisions in Patton v. State (1988), 41 Ill. Ct. Cl. 77 and Boe v. State (1984), 37 Ill. Ct. Cl. 72 and their progeny.

A cursory reading of those cases demonstrates that Respondent misapprehends their teaching.

In Boe, the driver of the car in which Claimant was a passenger skidded on the road before hitting an allegedly defective post. In Patton, the Claimant’s driver rear ended a State truck and the State obtained a civil judgment against the driver.

Both section 25 of the Court of Claims Act (705 ILCS 505/25) and section 790.60 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) require any person who files a claim to exhaust all other remedies and sources of recovery, whether administrative, legal or equitable. This case presents the question of whether the exhaustion requirement is tantamount to a statutory command that a Claimant must sue a third party against whom' Claimant has no reasonable belief that a remedy exists. We hold that a Claimant is not so required.

Not only does the plain reading of the statute indicate a lack of legislative intent to require pursuit of nonexistent remedies, but, as pointed out by Claimant, the General Assembly has indicated a contrary intent at the time Claimant filed his complaint.

At that time, the Code of Civil Procedure provided in section 2 — 611.1 (Ill. Rev. Stat. 1989, ch. 110, par. 2— 611.1) as follows:

“Untrue statements * * * allegations and denials, made without reasonable cause, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.”

We do not believe that the General Assembly intended to require Claimants to file frivolous or unfounded actions. The Respondent alleges no facts to demonstrate that a remedy exists to be pursued.

Our responsibility particularly as part of the legislative branch of government, is to follow the intent of the General Assembly.

It is therefore ordered that the Respondents motion to dismiss is denied.

OPINION

Raucci, J.

The claims by Claimants Joseph Davis and Jeffrey McCormick were consolidated for purposes of a hearing, Both claims arise out of the same motor vehicle accident with a State police vehicle and allege that State Trooper Cheryl Banes was negligent in the operation of her vehicle.

Claimant Joseph Davis testified that on November 5, 1987, at approximately 11:30 p.m'., he was traveling northbound on an off-ramp óf Illinois Route 53 (hereinafter referred to as Ill-53) in Cook County, Illinois. He was driving an automobile and Jeffrey McCormick was a passenger seated next to him. He was approaching the intersection with Illinois Route 72 (hereinafter referred to as Ill-72). There are traffic control lights at the intersection of Ill-53 and Ill-72. The off-ramp of Ill-53 had four lanes. The two left lanes were turn lanes and the two right lanes were straight ahead lanes. Claimant was in the far right lane with no vehicles in front of him. The traffic light for his lane was green. Prior to entering the intersection, he did not observe any emergency vehicles or emergency or flashing lights, or hear any sirens or horns. Upon entering the intersection, he did not observe any emergency vehicles, or emergency or flashing lights, or hear any sirens or horns. After entering the intersection, he saw a vehicle to his left. He was in the middle of the intersection when he saw the vehicle. It was approximately ten to 15 feet from his automobile. He believes it was traveling approximately 40 miles per hour.

On the west side of the off-ramp, Ill-53 crosses over Ill-72. Ill-72 runs east and west. Where Ill-53 crosses over Ill-72 it is an overpass. There is a big grassy hill obstructing ground level views because Ill-53 is built up.

When Claimant saw the headlights of the vehicle, he did not hear any sirens. He cut the wheel to the right and accelerated. He avoided colliding with the vehicle. He struck the median separating eastbound and westbound Ill-72. There is an island median where a traffic light is mounted on the curb. He struck the curb and the car went airborne, coming down on the north side of Ill-72 and struck another median located for a turn lane off of westbound Ill-72 to enter northbound on Ill-53. His automobile came to rest 20 to 30 yards further away.

After his automobile came to rest, Jeffrey McCormick fell out. There was fire underneath his car. He dragged Claimant McCormick away from the car. He learned the driver of the vehicle he nearly collided with was an Illinois State trooper.

Claimants Davis and McCormick were transported by ambulance to Alexian Brothers Hospital. A doctor saw Davis and he was released. A few days later he went to a doctor at the Dempster Clinic. He had back pains, neck pains, headaches and a sore anide. The treatment he received relieved some of the pain. He still experiences neck pain and has headaches two days a week. He takes aspirin. He has not seen any doctors in relation to his back or neck injury since three months after the accident. He did see Dr. John Diveris in regard to his ankle.-

He had strained tendons and ligaments. He wore an air cast for three weeks. He had stiffness for three dr four years. He missed one week of work from Dominick’s Finer Food Stores and lost $300 in wages. His vehicle was worth approximately $3,000 and was a total loss.

On cross-examination, Claimant Davis acknowledged that his radio was on at the time of the accident. He was talking to Claimant McCormick at the time of the accident. Claimant’s testimony on direct examination of lost wages was impeached when counsel showed that Claimant stated in his deposition that he did not lose any days off work or any wages. Claimant also stated in his deposition that he experienced headaches once a week'.

Claimant Jeffrey McCormick testified that he was a passenger in an automobile driven by Joseph Davis on November 5, 1987. He described the four lanes differently than did Joseph Davis. He also testified that they were in the third lane from the left, contrary to Claimant Davis’ statement that they were in the fourth lane from the left. Eastbound traffic on Ill-72 comes from under the viaduct. The road is built up forming a hill that obstructs vision. He saw that the light was green as they approached the intersection of Ill-53 and Ill-72. He did not observe any emergency vehicles, or emergency lights or flashing lights, or hear any sirens or horns, either prior to, or upon, entering the intersection. When they were halfway through the intersection, he saw headlights to his left. Claimant Davis turned very hard to the right and accelerated. He estimated that the vehicle was traveling between 40 and 50 miles per hour' They hit the median and the car went up on two wheels, and hit another median across the street. He does not believe he fell out of the car. He opened the door after the car came to a rest and was lying next to the car. His neck and shoulder struck the cars interior.

He was taken by ambulance to Alexian Brothers Hospital. He was examined and released. He saw Dr. Anderson at the Dempster Clinic and Dr. Bikshom at Northwest Neurological. He later received an electromyogram from another doctor. He received physical therapy for several weeks. He was experiencing tingling feelings shooting down his arm into three fingers in his right hand. He received an examination at Humana Hospital at the direction of Dr. Bikshorn. He returned in February 1988, to Dr. Anderson because of the tingling feeling in his fingers. He still experiences tingling feelings and dull pain in his fingers approximately three days a week and has lost strength in his right hand. His neck is stiff most of the time.

Claimant McCormick stated that he lost about five weeks of work, and approximately $2,550, as an automobile painter at Trailwood Auto Body in Wheeling because of the accident.

On cross-examination, Claimant McCormick acknowledged that at his deposition he stated that he lost two weeks, and approximately $1,500, from work. Claimant does not know whether the $818 bill from Dr. Anderson at Dempster clinic had been paid. He believed all others were paid. He is not seeing any doctors and does not plan to see any doctors. He is not on any medication. Claimant has skated since the accident. He played hockey prior to the accident, but not afterwards.

Trooper Cheryl Banes testified that at the time of the incident she was a trooper with the Illinois State Police. At approximately 11:30 p.m. on November 5, 1987, she was éastbound on Ill-72 approaching the intersection with Ill-53. The overpass of Ill-53 obscures some vision of the intersection with the off-ramp of Ill-53. She was on an emergency call the night of the accident. The call she received was of an accident involving a car and a deer with a report of personal injuries. She was traveling on Ill-53 when she received the call and she exited Ill-53 onto Ill-72. She activated her lights and siren as soon as she got the call, but she does not remember her rate of speed. She believes she was proceeding south on the Ill-53 off-ramp and was traveling at approximately 20 to 25 miles per hour and slowed to make the turn Onto Ill-72. She turned left heading east on Ill-72. The intersection of the Ill-53 northbound off-ramp and Ill-72 is not under the overpass of Ill-53. She was traveling at approximately 20 to 25 miles per hour as she approached the intersection.

Trooper Banes first saw Claimants’ vehicle when it was in front of her. Trooper Banes believes the intersection is approximately 100 feet in width. She did not see any vehicles moving. She was driving a semi-marked car with grille lights and emblem markings on the door and trunk. She looked to the right and did not see Claimants’ vehicle enter the intersection, but it would have had a green light. When she saw the vehicle in front of her she hit the brakes. She did not hear the tires squeal and did not leave skid marks.

Trooper Banes received training for driving in emergency situations while she was at the State Police Academy. Prior to the accident, she had driven a vehicle in response to an emergency call at least 100 times. On the night of the incident, she was driving a semi-marked vehicle with emblems on the door, two rear, deck lights on the inside of the vehicle, two emergency lights, one red and one blue in the front of the grille and the headlights were wigwags. Wigwags alternate high and low beams. The siren comes from the front of the grille. She received a call of an accident involving a car and a deer and there were injuries sustained by the driver and/or passengers. She responded as an emergency call because personal injuries were involved. She activated the wigwag headlights, the emergency lights in the grille and rear deck, and the siren while she was on Ill-53. When she turned left from the off-ramp of Ill-53 and approached the overpass she turned on her intermittent siren. She remembers that her light had been green and it just turned red. When she proceeded through the intersection all she saw was the vehicles that were stopped. The next thing she saw was Claimants’ car in front of her. She hit her brakes and observed the car had hit the raised median. She proceeded to where she could turn around and come back, which she did. She was not reprimanded, suspended or discharged by the Illinois State Police because of the incident.

On cross-examination, Trooper Banes acknowledged that she does not know whether or not there was a personal injury to a driver or occupant of the car accident she was en route to investigate.

Sergeant Mark Omura testified that he was a field supervisor/sergeant on the date of the accident and that he investigated the accident on November 5, 1987. He interviewed Trooper Banes at the scene of the accident. Trooper Banes related her description of what occurred to him. She also told him there were some stopped vehicles on the northbound lanes. According to Banes, the northbound traffic control signal had changed to green but vehicles had stopped at the intersection. He interviewed both Claimants. In his interview with Mr. McCormick, Sergeant Omura learned that he did not see the emergency lights and was not wearing a seat belt.

Sergeant Omura interviewed witnesses at the scene and learned that Claimants’ vehicle pulled around vehicles that had stopped for the emergency vehicle, that was traveling eastbound, and entered the intersection. His determination was that this accident was non-preventable and that Trooper Banes was not at fault. The accident review board determined that the accident was non-preventable.

On cross-examination, he stated that he determined Claimants’ car pulled around vehicles and entered the intersection based upon statements by two witnesses, Mr. Murbach and Mr. Carter. Trooper Banes did enter the intersection against a red light. In Murbach’s statement, there is no mention of Claimants’ car pulling around Murbach’s car. Sergeant Omura never confirmed whether there was an accident involving personal injuries to which Trooper Banes was proceeding. Part of his report erroneously indicated that Mr. McCormick was the driver. Although he issued a citation to Mr. McCormick for not wearing a seat belt, he does not recall where he interviewed him.

Claimants argue that Trooper Banes violated the standard of ordinary care when she drove her semi-marked patrol car into a crowded intersection while her vision was obscured and at a speed which was excessive under the circumstances. The Respondent’s supposition of non-liability is predicated upon sections 11 — 205 and 11 — 907 of the Motor Vehicle Code, hereinafter referred to as the Code. 625 ILCS 5/11 — 205(b), (c)2, and 5/11 — 907(a).

As to emergency vehicles, section 11 — 205 of the Motor Vehicle Code provides:

“§11 — 205. Public officers and employees to obey Act — Exceptions.
(a) The provisions of this Chapter applicable to the drivers of vehicles upon the highways shall apply to the drivers of all vehicles'owned or operated by the United States, this State or any county, city, town, district or any other political subdivision of the State, except as provided in this Section and subject to such specific exceptions as set forth in this Chapter with reference to authorized emergency vehicles.
(b) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated. [Emphasis added.]
(c) The driver of an authorized emergency vehicle may:
o « e
2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be required, and necessary for safe operation; ° [Emphasis added.]

As to Claimants, section 11 — 907 of the Motor Vehicle Code provides:

“§11 — 907. Operation of vehicles and streetcars on approach of authorized emergency vehicles.
(a) Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals meeting the requirements of this Code or a police vehicle properly and lawfully making use of an audible, or visual signal,
(1) the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection and shall, if necessary to permit the safe passage of the emergency vehicle, stop and remain in such position until the authorized emergency vehicle has passed, unless otherwise directed by a police officer e °

Crucial to a just and equitable resolution of the matters before the court are sections 11 — 205(e) and 11— 907(b) of the Motor Vehicle Code which state:

“§11 — 205. Public officers and employees to obey Act — Exceptions.
(e) The foregoing provisions do not reheve the driver of an authorized emergency vehicle from tire duty of driving with due regard for the safety of all persons, nor do such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

and

“§11 — 907. Operations of vehicles and streetcars on approach of authorized emergency vehicles.
(b) This section shall not operate to reheve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.”

The driver of an emergency vehicle must exercise the standard of ordinary care in an emergency situation. In Bouhl v. Smith, 130 Ill. App. 3d 1067, 475 N.E.2d 244, the Court considered sections 11 — 205 and 11 — 907 of the Motor Vehicle Code. The parties were involved in a motor vehicle accident. The citizen driver, Bouhl, was operating a vehicle on a two-lane road nearing a “T” intersection. She had come to a stop behind other stopped vehicles. Officer Smith at that time was to the rear of and proceeding in the same direction as Ms. Bouhl. Officer Smith stated he was traveling below the posted speed limit, seeing the line of vehicles stopped, he pulled into the oncoming lane of traffic to pass. At that time a vehicle turned onto the road at the intersection thus creating a head-on situation between the vehicle which had just turned and Officer Smiths car. Smith then swerved his squad back into what would be the correct lane for his direction of travel, applied his brakes and slid into the rear of Bouhls vehicle. The jury found for the defendant. The Bouhl Court, applying the standard set forth in Pedrick v. Peoria Eastern Railroad Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, reversed the trial courts' denial of plaintiff Bouhls motion for judgment notwithstanding the verdict and remanded the cause to the trial court with directions to enter a judgment for the plaintiff on the issue of liability. Bouhl, 435 N.E.2d at 245.

In Mayfield v. City of Springfield (1982), 103 Ill. App. 3d 1114, 432 N.E.2d 617, the court was presented with a factual situation similar, but distinguishable, to that of the Claimants in this matter. The facts in Mayfield disclose that an emergency vehicle in the act of answering a call collided with a citizen driver resulting in the death of the citizen and damage to nearby property. Ms. Mayfield was enroute to a church function approaching an intersection where she was intending to make a left turn. She proceeded into the intersection as she had a green light. Officer Hughes at this time was proceeding west on the road which Ms. Mayfield was intending to turn onto. He deemed this call to be urgent. He activated his siren and flashing lights and drove toward the intersection where decedent was waiting to turn. The traffic light governing the right-of-way for traffic proceeding in the direction the officer was traveling was red. As he neared the intersection, he used the left turn lane to pass a number of cars that were stopped. He then proceeded into the intersection where he collided with decedents vehicle.

The officers view of the intersection was obstructed or impaired by a school gymnasium, stopped vehicles, the setting sun and shadows cast by a building on a corner of the intersection. The jury concluded the defendant police officer was not negligent and as such denied recovery to plaintiffs. As in Bouhl, supra, the Mayfield court reversed the trial court, held the jury’s verdict for naught and entered judgment for the plaintiffs, finding the defendant was negligent as a matter of law and remanded the decedent’s case for a determination of damages.

The Appellate Court, in Mayfield, stated:

“ ‘The driver of an authorized emergency vehicle may ° * * [p]roceed past a red or stop signal or stop sign, but only after slowing down as may be required and necessary for safe operation.’ (Ill. Rev. Stat. 1979, ch. 95%, par. 11— 205(c)(2).) This suspension of the rules of the road is available only ‘when responding to an emergency call’ (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 205(b)) and only when ‘due regard for the safety of all persons’ is exhibited. (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 205(e)). This special rule governing drivers of emergency vehicles permits them to cautiously circumvent strict application of the traffic laws in the interest of hastening their mission, thus promoting the public safety and welfare. It does not permit them carte blanche authority to charge into heavily traveled urban intersections in defiance of all reason as if bearing the colors for General Pickett. To so construe the authority of section 11 — 205 would undermine the very purposes of public safety and welfare that the statute was intended to serve.” Mayfield, supra, 619, 620.

To prevail Claimants must prove, by a preponderance of the evidence, the negligence of Trooper Banes was the proximate cause of injury to them and that damages naturally flowed from the injury. Stanley v. State (1986), 39 Ill. Ct. Cl. 107, 110.

Mayfield, supra, did not discuss the standard of care. It held, as a matter of law, that the officer was negligent in that he failed to exercise “due regard” for the circumstances.

Bouhl, supra, does not clearly set forth .the basis of the Courts holding.

At 130 Ill. App. 3d 1067, at 1069, the Appellate Court stated:

* * The question of negligence is measured by what a reasonable, prudent, emergency vehicle driver would do under all of the circumstances, including that of the emergency.’ [Citations omitted] * °

The Appellate Court then went on to address “ordinary negligence standards” and concluded that:

“We hold that under the circumstances here presented, the defendant has failed to carry his burden of proving that his vehicle was under sufficient control to proceed in the left-hand lane with due regard for the safety of others. Neither the presence of the unknown motorist, nor the existing weather and road conditions, nor the emergency to which Smith was responding provides an adequate explanation or excuse for the defendant's failure to maintain control of his squad car so as to avoid colliding with the plaintiffs truck. Where, as here, it is clearly established that the plaintiff performed no act or omission which could in any way be considered negligent, and the perilous situation which led to the accident was a creation of the defendant emergency vehicle operator's own negligence, then the defendant must be found negligent.”

As to the negligence of Trooper Banes, this court has held that the conduct of a driver of an emergency vehicle is measured against a specific statutory standard contained in the Illinois Vehicle Code. Bauman v. State (1981), 34 Ill. Ct. Cl. 140, 143-145.

A police vehicle is an authorized emergency vehicle. (625 ILCS 5/1 — 105.) The court has held that a police officer in responding to an emergency call must use a siren when necessary to warn pedestrians and other drivers of her approach and drive with due regard for the safety of others. Bauman, supra, at 145.

Not only was Trooper Banes using her siren and lights, but was using them in a fashion to warn other drivers on the road. While we accept the Claimants’ testimony that they did not hear the siren or see the flashing lights, her uncontradicted testimony is that she activated her siren and lights well before arriving at the intersection. Other drivers at the scene traveling the same direction as Claimants had all stopped even though that traffic had a green light.

Claimants argue that they did not hear a siren or see any flashing lights. But they admit being in a closed vehicle, talking to each other with the radio on. Clearly, Davis, the driver, came to the intersection, saw the green light and drove through. They were distracted, in conversation and with the radio as background. That can hardly have been the fault of Trooper Banes.

There is further the finding by Sergeant Omura that Davis drove around stopped vehicles and entered the intersection. This is supported by the contradictory testimony of Davis and McCormick, as to which lane they were in when they approached the intersection.

Claimant sites Mayfield v. City of Springfield (1982), 103 Ill. App. 3d 1114, as an identical case and grandly pronounces Trooper Banes negligent as a matter of law. A closer look at Mayfield finds the facts far removed from those in the instant case..

In Mayfield, the Illinois Appellate Court reversed the denial of a motion for judgment notwithstanding the verdict. A Springfield city police officer, while proceeding through an intersection, struck and killed a driver on her way to church. The Appellate Court found the officer was negligent. It cited the following facts: the officers view of the intersection was blocked, by a gymnasium; his observation of the intersection was obstructed by vehicles stopped in the other lane of traffic; his vision was impaired by the setting sun glaring in his eyes; his perceptions were diminished by long shadows cast by a multistory building at the corner; and that it was physically impossible to have been driving 20 miles per hour.

The obvious difference between Mayfield and this case is that there is no evidence that Banes’ view of the intersection was in any way blocked, obstructed or impaired in any way. Claimant cites the transcript and states “also it was agreed the Claimants’ view of the intersection was obstructed by the overpass, the grassy knoll and other vehicles stopped at the intersection.” The record reveals no such “agreement.”

Respondent cites, Nolan v. Elliot (1989), 179 Ill. App. 3d 1077, 1083, as being similar because Banes slowed to 25 miles per hour at the intersection.

Claimants’ claim should be denied because of their failure to prove negligence on the part of Trooper Banes and because of the speculative nature of their claim for damages.

We find that Claimants did not carry their burden of proof to establish that Trooper Banes negligently entered the intersection and that Respondent is not liable for Claimants’ injuries. Trooper Banes testified that her lights and siren were utilized. No evidence was offered to refute this fact. Claimants only contend that they did not see her vehicle or lights and did not hear the siren. Claimants admitted their radio was operating. The evidence indicates that Claimants’ vehicle entered the intersection, even though Mr. Carter and Mr. Murbach indicated that other vehicles noticed the emergency vehicle and stopped prior to the intersection. Claimants fail to agree on which lane their vehicle was in. Claimant Davis stated that they were in the fourth lane from the left and Claimant McCormick said they were in the third lane from the left. Claimants both admit that their vision was obscured.

The evidence does not establish that Trooper Banes acted in a manner contrary to the standard of care.

It is therefore ordered, adjudged and decreed that this claim be, and it is hereby, dismissed with prejudice and forever barred.


source: Caselaw Access Project

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

license: Public Domain

text:
    (No. 89-CC-1196
    John Williams, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 28, 1996.

      Order filed May 7, 1997.

    James Paul Costello (Shannon M. Heilman, of counsel), for Claimant.
    Jim Ryan, Attorney General (Michael Rocks, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This is a claim for damages for personal injuries allegedly caused by the negligence of the State.

This Claimant at the time of the incident complained of was an inmate at the Lincoln Correctional Center. On October 29, 1987, the Claimant was working on a food detail on the second floor of the multi-purpose building. He was told to carry three food pans down the stairs. One of the pans was 5 inches deep and 14 inches long, the other two were 2lA inches deep. The pans were stacked on top of one another. The Claimant could not see directly below where his feet were. The stairs were smooth concrete stairs with no slip-resistant materials applied to them. The Claimant was wearing prison issue shoes with plastic bottoms. The Claimant was told in no uncertain terms to hurry by the prison authorities present. Harry Beavers, a prison employee, had seen water on the top three stairs and had sent for a mop just before the Claimant used the stairs. The Claimant slipped on the stairs and fell to the bottom.

The Claimant was taken to the infirmary and kept over night. He had complaints of neck, head, and back pain and a bruise on his buttocks. He returned to the infirmary a few days later and was kept there for a week. He later returned numerous times with complaints of back pain and numbness and pain down his left leg. He was sent to Lincoln Memorial Hospital for X-rays and a neurological examination. The neurologist’s impression was S-l radiculopathy, which is defined as any disease of the spinal nerves. Schmidt’s Attorney’s Dictionary of Medicine, 1995, Vol. 4, P. R-8.

The State does have a duty to provide a safe work pláce for its inmates. (Reddock v. State (1978), 32 Ill. Ct. Cl. 511.) We conclude that the State breached its duty in this instance, and that the Claimant’s injuries were caused by the State’s negligence. The Claimant was carrying pans such that he could not see directly in front of him. He was told to hurry. He had no choice. The steps had water on them. We have in the past found liability where inmates are required to walk through water. Coley v. State (1991), 44 Ill. Ct. Cl. 153; Hammer v. State (1987), 40 Ill. Ct. Cl. 173.

The institutional medical records show that the Claimant complained of back pain from the time of the injury through 1990. The Claimant testified at the trial that he continues to suffer from back pain and is unable to work.

“The burden of proof is on the plaintiff to prove by a preponderance of evidence not only that injuries exist but that they were the result of the occurrence of which he complains.” Bugariu v. Conley (1981), 93 Ill. App. 3d 571, 417 N.E.2d 719.

The Claimant introduced no testimony as to his present condition other than his own.

"When the injury is remote in time from the accident or the condition is one shrouded in controversy as to origin, such as the intervention of either a prior or subsequent injury or disease layman testimony may be insufficient to establish a prima facie showing of a causal relationship.” Hyatt v. Cox (1965), 57 Ill. App. 2d 293, 206 N.E.2d 260.

In the present claim, the Claimant is complaining of a traumatic injury but the neurologists impression was one of disease.

“Medical testimony is not necessary to prove the causal connection where the condition is clearly apparent from the illness and circumstance attending it” Jackson v. Narvik (1976), 37 Ill. App. 3d 88-95, 346 N.E.2d 116-123.

In the present claim, the Claimant’s current condition is not clearly apparent from the diagnosis given by a medical specialist near the time of the injury.

We find that the Claimant’s testimony concerning his condition at the time of trial alone does not meet the burden of proof required óf the Claimant to establish a prima facie case of causation or the existence of the injury. The injury was remote in time and the connection between the diagnosis of disease near the time of the injury and the claim of a permanent traumatic injury is not clearly apparent. The Claimant could have introduced expert medical testimony but did not do so.

The Claimant’s medical expenses were paid by the State; however, he did undergo a certain amount of pain and suffering after his fall. We, therefore, award the Claimant $2,000 for pain and suffering in full and complete satisfaction of this claim.

ORDER ON PETITION TO ADJUDICATE ATTORNEYS LIEN

Sommer, C.J.

This cause returns on a petition filed by Claimant’s counsel pursuant to the Attorneys Lien Act (770 ILCS 5/1), challenging a delinquent child support deduction made by the State Comptroller from Claimant’s award.

On August 28, 1996, this Court issued its decision awarding Claimant $2,000. On September 25, 1996, the comptroller notified Claimant that the entire amount had been consumed by past due child support in accordance with sections 10.05 and 10.05a of the State Comptroller Act. (15 ILCS 405/10.05 and 10.05a.) Those sections provide in pertinent part as follows:

“§10.05. Deductions from warrants and payments for account or claim in favor of State — Statement of reason. Whenever any person shall be entitled to a warrant or other payment from the treasury or other funds held by the State Treasurer, on any account, against whom there shall be any account or claim in favor of the State, then due and payable, the Comptroller, upon notification thereof, shall ascertain the amount due and payable to the State, as aforesaid, and draw a warrant on the treasury or on other funds held by the State Treasurer, stating the amount for which the party was entitled to a warrant or other payment, the amount deducted therefrom, and on what account, and directing the payment of the balance; which warrant or payment as so drawn shall be entered on the books of the Treasurer, and such balance only shall be paid.”
“§10.05a. Deductions from warrants and payments for satisfaction of past due child support. At the direction of the Department of Public Aid, the Comptroller shall deduct from a warrant or other payment described in Section 10.05 of this Act, in accordance with the procedures provided therein, and pay over to the Department that amount certified as necessary to satisfy, in whole or in part, past due support owed by a person on account of support action being taken by the Department under Article X of The Illinois Public Aid Code, whether or not such support is owed to the State. Such deduction shall have priority over any garnishment except that for payment of state or federal taxes. In the case of joint payees, the Comptroller shall deduct and pay over to the Department the entire amount certified.”

Claimants counsel asserts entitlement to one-third of the award, $666.67, for contingent attorney fees plus an additional $946.88 in costs and expenses. Thus, Claimants counsel contends that $1,613.55 of the $2,000 award is subject to an attorneys lien and is therefore immunized from seizure to pay Claimants delinquent child support.

The Court notes that the contingent fee sought by Claimants counsel exceeds the 20% limitation set forth in section 26 — 1 of the Court of Claims Act. (705 ILCS 505/26 — 1.) Accordingly, the court finds that counsel’s purported lien would only be enforceable to the extent of $1,346.88 ($400 contingent fee plus $946.88 in costs and expenses) assuming, arguendo, that a valid and enforceable lien exists.

On its face, section 10.05a of the State Comptroller Act plainly indicates that delinquent child support deductions can only be subordinated by garnishments for . the payment of State or Federal taxes. No mention is made in section 10.05a of attorneys’ liens or any other liens, for that matter, as being capable of taking priority over delinquent child support deductions. For its part, the Attorneys’ Lien Act (770 ILCS 5/1) is silent on the question of priorities. Given the clear language of section 10.05a and the absence of any statutory provision which would give priority to an attorney’s lien, we hold that a section 10.05a delinquent child support deduction takes priority over a claim under the Attorneys’ Lien Act.

Alternatively, we find that Claimant’s counsel has failed to prove that the purported attorney’s lien here was ever perfected so as to actually attach to Claimant’s award. Casés construing the Attorneys’ Lien Act have routinely noted that the Act is a purely statutory creation which was unknown at common law and that, as such, the Act’s provisions must be strictly followed in order for a valid and enforceable lien to come into existence. (See, e.g., In re Kleckner, 93 B.R. 143, 145 (N.D. Ill. 1988); Unger v. Checker Taxi Co. (1961), 30 Ill. App. 2d 238, 241, 174 N.E.2d 219, 221; and Cazalet v. Cazalet (1944), 322 Ill. App. 105 107, 54 N.E.2d 61, 63.) Under the Act, notice must be accomplished by either personal service or registered or certified mail:

“* « o enforce such hen, such attorneys shall serve notice in writing, which service may be made by registered or certified mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such Men and stating therein the interest they have in such suits, claims, demands or causes of action.” 770 ILCS 5/1.

The attorneys hen does not attach until actual service of the above notice has taken place. (Cazalet, 322 Ill. App. at 107, 54 N.E.2d at 63.) Here, Claimants counsel has failed to prove that the statutoiy notice was ever properly served on Respondent, let alone prior to the Comptrollers September 25, 1996, notification concerning the delinquent child support. Thus, there never was a valid and enforceable attorneys hen.

It is therefore ordered that the petition to adjudicate filed herein by the law firm of James Paul Costello, Ltd. is denied.


author: Frederick, J.

text:
    (No. 89-CC-2702
    Anthony Johnson-Bey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 5, 1996.

    Anthony Johnson-Bey, pro se, for Claimant.
    Jim Ryan, Attorney General (Paul J. Ciastko, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Anthony Johnson-Bey, filed his claim in the Court of Claims on February 28, 1989. Claimant seeks $125,000 in damages for the alleged failure of the State of Illinois to provide Claimant, an inmate of the Illinois Department of Corrections, with adequate medical care. This is a medical negligence claim. The cause was tried before the Commissioner on July 25, 1995.

Claimant testified that he was transferred to Graham Correctional Facility from Stateville Correctional Center on August 25, 1988. Upon his arrival at Graham, he was to have an initial medical screening to assess his medical condition and determine if he had any standing medical orders from Stateville. Claimants medical records indicate he was to be referred to a medical doctor for back pain “ASAP.” His medical condition stemmed from an earlier incident in March of 1986 where he suffered a low back injury in the L-4, L-5 vertebrae which was diagnosed as a herniated'disc. Upon arrival at Graham, Claimant had his initial screening and was referred to the medical doctor. The records indicate, as of August 27, 1988, that Claimant was having low back pain which he had had for years. Claimant had been scheduled to see an orthopod prior to his transfer but had not seen that specialist prior to transfer. The records also indicate that there was no inflammation or tenderness in the area by palpation and that Claimant was to receive Naprosyn and a low bunk. Claimant was to return to the doctor in one month. The physician also noted the possibility of a small herniation of the nucleus pulposus of the L-4 and L-5 vertebrae and that Claimant had chronic back pain.

Claimant further testified that the outside medical contractors only entered the orders and it was up to. the medical staff at the facility to insure that the orders were enforced. Claimant argues that the physician’s orders were not enforced by the medical staff at the facility. Claimant states that "it took the staff almost a month to enforce the orders.

Claimant testified that when he was first moved to a housing unit at Graham, he was put on a top bunk against the doctor’s orders.

On September 30, 1988, more than a month after the doctor’s initial orders, Claimant declared himself a medical emergency so that he could be treated by medical personnel immediately rather than be seen at random. Claimant’s medical records from September 30, 1988, indicate that Claimant complained of having a muscle strain on the left flank because he had to climb out of a top bunk. There was no sign of redness. Claimant continued to ask about a low bunk, saying he should have a low bunk. Claimant was in a top bunk from August 25, 1988, until September 30, 1988. Claimant would have to step on the toilet, step on the sink, and then propel himself into his top bunk. Getting down again was also a tedious event.

The medical records of Nurse Olindeski also indicate that M.D. ordered low bunk — inform inmate would assume it would be issued. Claimant was insistent in obtaining information about who was responsible for not giving him a low bunk.

Later in the day on September 30, 1988, Claimant was seen by a doctor. The doctor noted Claimant complained of having back pain from getting down from a high bunk. Tenderness was noted in the L-4 and L-5 areas. The doctor ordered that Claimant was not to lift for exercise, was to have a backboard for three months, and that if the problem persisted, he was to see an orthopod as soon as possible. Claimant was prescribed Flexeril and Naprosyn. Claimant testified that he received everything that was ordered and that his condition improved. He received physical therapy. Claimant received and continues to receive a low bunk.

Claimant testified that his back pain has not completely gone away. He indicates that he still experiences weakness in that area.

At the time óf trial, Claimant had completed all of his treatment. Claimant testified that he believes because of the improper care and treatment he received at Graham, he is unable to lift heavy objects. He also believes he won’t be able to do any manual labor when he goes back into society. Claimant was scheduled to be released in December of 1995.

Claimant feels his back injury was documented and that the medical staff ignored the doctors’ orders about a low bunk for over a month. He was having pain from August 25,1988, from being assigned to a top bunk.

On cross-examination, Claimant indicated that on September 30, 1988, he slipped on a chair while climbing down from the top bunk. Claimant’s medical records indicate that his lower back pain dated back to 1986, and that he had received considerable care and treatment from 1986 through 1988. Claimant received treatment for lower back pain approximately 100 times between March of 1986 and March of 1989. Claimant also admitted that prior to August of 1988, he could not lift heavy objects because of his back problems. He feels, however, that this inability to lift heavy objects was aggravated by his being in a top bunk for over a month. Claimant called no other witnesses and stated he did not think he needed any other witnesses.

The Law

Claimant alleges that he was denied proper medical care and treatment by the Illinois Department of Corrections because the Department failed to give him a lower bunk for approximately 30 days when a lower bunk was prescribed by his physician. The State of Illinois has a duty to provide proper health treatment for inmates in the custody of the State and the State must exercise ordinary and reasonable care for the inmates health and life under the circumstances of the particular case. Peters v. State (1987), 40 Ill. Ct. Cl. 152; Starnes v. State (1992), 45 Ill. Ct. Cl. 285.

In a medical negligence case, to prevail, the Claimant must prove by expert testimony the standard of care, that the State deviated from the standard of care, and that the deviation was the proximate cause of Claimants injury. Claimant has failed to present any expert testimony to establish the standard of care, that Respondent deviated from the standard of care, and most importantly, that the deviation was a proximate cause of the Claimants injury. Williams v. State (1994), 46 Ill. Ct. Cl. 221.

In this case, the court can find, based on the evidence and without an expert, that the State was negligent in not following the doctors orders to provide Claimant with a lower bunk. However, without expert testimony, we cannot find that Claimants alleged injury was proximately caused by Respondents negligence. (Williams v. State (1994), 46 Ill. Ct. Cl. 221, 224.) The proof of proximate cause in this case is nonexistent. Claimant has, therefore, failed to meet his burden of proof by failing to prove proximate cause by expert testimony. This court cannot speculate as to Claimants back pain and how it was caused.

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


text:
    (No. 90-CC-0251
    Glenn M. Bahl, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 25, 1997.

    Hohlt, House, De Moss & Johnson, for Claimant.
    Jim Ryan, Attorney General (Gregory T. Riddle, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Glenn M. Bahl, filed his complaint sounding in negligence and seeking damages of $66,256.03 in this court on August 23, 1989. This is a tort claim against the Respondent, State of Illinois, for personal injuries for when Claimant allegedly slipped and fell in a rut or hole in a field at the Du Quoin State Fair on August 29, 1987. The Respondent has denied the material allegations of the complaint and has affirmatively alleged that the Claimants injuries were caused by the negligence of the Claimant.

At trial, Claimant testified that at the time of the accident he was a track foreman for the Union Pacific Railroad and was 47 years of age. Claimant was in attendance as a member of the general public at the Du Quoin State Fair to watch a concert. After attending the concert, the Claimant was on his way back to his car which was parked in the parking lot southeast of the State Fair grandstands. Claimant was following a path that a large number of people were taking. The pathway was “just a field” that everybody was using to get to the parking lot. Claimant stated: “As I was walking down the path, I don't know what happened. I just — all I heard was a pow and I slipped and I was on the ground just bip bip.” Claimant testified that it had not rained the day of his fall, but there was water in the hole in which he fell. The area where he fell was right off of the midway which was lit up but it “was dim through this field, but you could see.” The hole was 4 to 6 inches deep and was entirely filled with water. The Claimant was taken to a local hospital and then by ambulance to Belleville Memorial Hospital where he was examined by Dr. Hurd. Two and one-half days later Claimant underwent surgery to repair a broken ankle. Claimant was discharged from the hospital three days later. Claimant was in a cast for nine weeks and he was off work approximately 13 weeks. Claimant’s medical bills totaled $6,956.03.

Roger Knapp testified on behalf of Claimant. Mr. Knapp was a concessionaire and for many years had a concession trailer at the Du Quoin State Fair. On August 29, 1987, Mr. Knapp observed the Claimant on the ground after the accident. Mr. Knapp and his wife were going to their car along a common pathway that had been used for years. He further observed that the ground near where Claimant fell was “really rough.” Mr. Knapp testified that Claimant’s foot was lying in the hole. Mr. Knapp described the hole as being grassy with no dirt around the hole. The witness also stated that the hole was “maybe 18 inches by 2 foot or maybe it was, you know, 24 by 24, something like that” and it looked to be 4 to 5 inches deep. The hole did not appear to have been dug. There were tire tracks around the area. The location was the southwest corner of the carnival. Trucks that are quite heavy set heavy carnival rides down in this location. Also mobile homes are parked in the area. There were no state workers prohibiting individuals from utilizing the field and there were no barricades or posted restrictions. The area was commonly used by the general public as a means of ingress and egress to and from the fairgrounds. The area where the Claimant fell was not a parking lot but was the southwest corner of the midway. There was a parking lot across the street on the fairgrounds. The parking lot and the walkways are grassy. The hole was not obvious.

Mr. Knapp does not know how the Claimant fell as he did not observe the actual fall. Mr. Knapp testified that there are holes in this area every year but he could not testify as to how long the particular hole in question had been there. Mr. Knapp also testified that there were many state workers in the area.

Claimant testified that he had “maybe a beer or two” while he was at the fairgrounds.

Claimant was off work due to his injuries approximately 13 weeks. In addition to the medical costs, Claimant spent $68 on special shoes. Claimant testified that it was painful for him to be on his feet at work and that his ankle still bothers him in the spring when it is damp and the weather changes. At the time of the trial, Claimant continued to take Tylenol in the morning and evening and can no longer walk 18 holes of golf and enjoy himself.

During 1987, Claimant earned $11,000 in income for 16 weeks of employment or an average of approximately $695 per week gross. He lost 13 weeks of employment due to the injury. Claimant received $1,172 from the Railroad Unemployment and Sickness Board which must be repaid from any award and Union Supplement Pay of $2,500. Claimant testified that the $2,500 must also be reimbursed. Claimants health insurer must also be reimbursed to the extent of Claimant’s recovery. Claimant testified that the injury had slowed him down and on damp days or cold winter days his ankle bothers him. On cross-examination, Claimant testified that the $2,500 payment he received from the Railroad Retirement Board was in connection with his being unemployed during 1987 for six months. This testimony contradicted his earlier testimony on direct examination and the contradiction was not explained.

The Law

The State owes a duty of care to the users of its parks to reasonably maintain the premises. (State Farm Mutual Automobile Insurance Co. v. State (1992), 44 Ill. Ct. Cl. 265.) The State is not an insurer of the safety of persons who visit its parks. (Heimann v. State (1977), 32 Ill. Ct. Cl. 111.) In order for a Claimant to recover upon a theoiy of negligence, he must prove by a preponderance of the evidence that the State has breached its duty of reasonable care, that the breach was a proximate cause of the Claimant’s injuries, and that the Claimant was damaged as a result of the negligence. The Claimant must also establish that the State had either actual or constructive notice of an alleged defect or dangerous condition before recovery is allowed. (Dunbar v. State (1992), 45 Ill. Ct. Cl. 175.) Invitees to State parks assume the normal and obvious risks attendant to the use of the premises. (Gower v. State (1994), 46 Ill. Ct. Cl. 434.) Claimant voluntarily walked through a grassy area used by heavy trucks and mobile homes. The area was not significantly lighted. This was not a walkway designed by Respondent but an area routinely used by fairgoers as a means to enter and leave the park. Claimant assumes a risk in entering this area after imbibing some alcohol at night. More importantly, Claimant has failed to present any evidence to establish that the State had actual or constructive notice of this alleged defect. To create a duty for the State to seek out every four to six inch depression in state parks where invitees may walk even outside of walkways would be to make the State an insurer of the safety of all those who use its parks. The case law is consistent that the State has no such burden:

It is the burden of the Claimant to prove actual or constructive notice of this alleged dangerous or defective condition to prove the States negligence. The record is devoid of such evidence. The general assertion that there may be holes in some area over time does not create constructive notice of the hole in which Claimant fell. Having failed to meet his burden of proof, we are constrained to deny this claim.

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


text:
    (No. 90-CC-3402
    Richard Blakely, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 7, 1996.

    Matthew J. Maurer, for Claimant.
    Jim Ryan, Attorney General (Chad D. Fornoff, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Richard Blakely, filed his complaint in the Court of Claims on January 19, 1990. His claim sounds in tort. Claimant seeks recovery for injuries he received at the Pere Marquette State Park when his wheelchair went over the sidewalk and down a steep hill where it struck a steel post. Claimant alleges the State knew or should have known that the sidewalk in question was unsafe because it did not have guard rails, fences or protective railings; Claimant seeks damages in excess of $15,000.

The court has carefully reviewed the testimony and exhibits and the court has considered the briefs and arguments of counsel.

The Facts

On June 22, 1989, the Claimant, Richard Blakely, was employed as the Executive Director at the Illinois Springfield Center for Independent Living in Springfield, Illinois. The purpose of that organization is to advance the rights of individuals with disabilities in the community.

On June 22, 1989, Claimant was at Pere Marquette State Lodge in Grafton, Jersey County, Illinois, for a meeting of the various centers of independent living located in the State of Illinois. The meeting was scheduled for two days with the participants staying overnight at the lodge. There were other individuals with disabilities at the meeting, including those being confined to a wheelchair, who attended this meeting. The lodge and grounds had been publicized as being accessible to the disabled and this was a fact that was relied upon in selecting the Pere Marquette State Lodge facility for the meeting. The lodges brochure states that all areas of the lodge allow for handicap access.

At approximately 12:30 p.m. on June 22, 1989, the individuals at the meeting broke for lunch. At that time, the Claimant and another individual decided they would look around the área and get some fresh air. They went to an area near the tennis courts. The Claimant had never been at the facility before. The Claimant is a quadriplegic who has been in a manual wheelchair for the past nine years. The Claimant testified he has never experienced problems in the past in maneuvering and traveling in his manual wheelchair. The Claimant went over a bridge eastbound and then was returning to the lodge. The Claimant was going westbound over the bridge near the tennis courts after having previously traveled the same route in the opposite direction. Claimant started to make a 90 degree turn in the area where the sidewalk slopes toward a large hill. At the bottom of the hill there was a tree with steel posts around it. There was no other way by which Claimant could return to the lodge other than the one taken by the Claimant. The Claimant attempted to stop his wheelchair from rolling over the sidewalk by grabbing the pegs on the side of his wheelchair. He attempted to put his hand in the wheel to stop his descent down the hill and he attempted to apply the brakes on his wheelchair. As soon as the Claimants front wheels went over the edge of the sidewalk, his wheelchair picked up speed as it went down the hill. The Claimant collided with the steel posts around the tree. Upon impact, the Claimant was thrown from his wheelchair and landed in a nearby parking lot approximately five to six feet away.

At the end of the sidewalk where the Claimant’s wheelchair left the walkway there were no railings, bushes or other type of guard rail. The hill slopes down 10 to 12 feet from the sidewalk to the steel posts. The change in elevation from the sidewalk to the area of the steel posts is approximately 15 feet.

The Claimant was assisted back into his wheelchair by an individual at the park. Due to his disability, he did not realize that his leg was broken. The Claimant did feel a pressure in his leg, was sweating profusely, and was having muscle spasms and headaches. Claimant’s leg would not stay straight and was sticking out to the right. The Claimant left the conference early and returned to his home in Springfield, Illinois. He experienced difficulty and pain in driving home. After he arrived home, the Claimant’s mother called 911 due to Claimant’s condition and he was transported by ambulance to Memorial Medical Center.

The Claimant’s leg was broken in two places. One break was above the knee and the other one below the knee. This condition is called a floating knee. He was hospitalized from June 22, 1989, through June 24, 1989. Claimant was readmitted from June 28, 1989, through July 1,1989. His leg was put in a cast.

Due to the accident, Claimant suffered numerous damages. Claimant believes he developed bladder infections because he was unable to empty his leg bag. due to his cast. In addition, he lost approximately $1,500 in salary due to 14 days of missed work as a result of the medical problems he experienced. Since the Claimant had to keep his cast dry, he was unable to shower. He experienced great difficulty in washing his hair. Claimant could not push his wheelchair and was required to use an electric wheelchair. His leg was placed in a cast for approximately six weeks and then replaced by a knee brace. The Claimant had difficulty sleeping and was unable to drive which substantially impaired his mobility.

The Claimant incurred medical bills for his two hospital stays in the amount of $2,880. The bills for the two hospital stays were $1,210.49 and $1,680.52, respectively.

On the date of the accident, Pere Marquette State Park in Jersey County, Illinois, was under the care and control of the Illinois Department of Conservation.

Claimant was reimbursed for his meal expenses through a travel voucher with his agency. Workers compensation insurance was available through Claimants employer agency but Claimant did not file a workers compensation claim for his injuries. Claimant arrived at the park on the morning of June 22, 1989, and did not pay an admission fee to enter the park itself.

After Claimant’s first stay in the hospital, he claims he contracted a bladder infection. This was not diagnosed by any physician and no drugs were prescribed for this infection.

Claimant’s second hospitalization from June 28,1989, to July 1, 1989, was entirely related to the use of a sulfa drug. Claimant took a sulfa-based drug between the time of his first and second hospitalizations. Claimant took a sulfa-based tablet, having forgotten that he was allergic to sulfa. As a result of this self-treatment with sulfa drugs, Claimant developed a serious reaction and was rehospitalized.

The Law

The State owes a duty of reasonable care to the users of its parks. (State Farm Mutual Automobile Insurance Co. v. State (1992), 44 Ill. Ct. Cl. 265.) The Claimant was injured while at Pere Marquette State Lodge near Grafton, Illinois. This park was under the care and control of the Illinois Department of Conservation. There is no question that Claimant received severe injuries as the result of his crash into the steel post.

The Respondent has raised the following issues in opposition to the claim. The Respondent argues that Claimant failed to exhaust his other remedies by failing to file a workers’ compensation claim with his employer since he was at a business meeting. Claimant believed that there may have been a workers’ compensation claim through his employer. The Respondent has also raised that the Recreational Use of Land & Water Areas Act (745 ILCS 65/1 et seq.) applies under the facts of this case and the State would only be liable if the State’s conduct were a willful and wanton failure to guard or warn Claimant against a dangerous condition. Claimant admits Respondent’s actions were not willful and wanton.

We need not resolve the foregoing two issues because the Court finds Claimant has failed to prove even a negligence claim against Respondent by a preponderance of the evidence. The Claimant went along a sidewalk and then went back the same way he had just come. He obviously did not observe any dangerous condition as he did not take any special precautions on the return route. The Claimant presented no evidence that the State had actual or constructive notice that the walkway constituted a dangerous condition. The State is not an insurer of invitees on State property. The State must only exercise reasonable care for the safety of invitees. (Fausch v. Board of Trustees of the University of Illinois (1989), 42 Ill. Ct. Cl. 175.) The Claimant has the burden of proving that the State was negligent by a preponderance of the evidence. (Hoekstra v. State (1985), 38 Ill. Ct. Cl. 156.) In order for Claimant to prevail, he must prove by a preponderance of the evidence that the State has breached its duty of reasonable care, that the breach was the proximate cause of Claimants injuries, that Claimant was injured as a result of the negligence, and that the State had actual or constructive notice of the alleged defect. Dunbar v. State (1992), 45 Ill. Ct. Cl. 175.

We have reviewed the record very carefully. There is no evidence of prior accidents or warnings to the State indicating that this sidewalk was defective. This sidewalk was not a defective condition per se. There was no expert testimony to indicate that this was an obvious dangerous condition. The Claimant has failed to meet his burden of proof because he has failed to prove the State was negligent. While we certainly sympathize with the Claimant because of his injuries, we must find that they were not caused by the States negligence.

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


author: Sommer, C.J.

text:
    (No. 91-CC-2119
    Winston L. M. Senor, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 16, 1997.

    Winston L. M. Señor, pro se, for Claimant.
    Jim Ryan, Attorney General (Julie A. Smith, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

In this claim it is alleged that the Respondent negligently took $300 from the Claimants trust fund account at the Menard Correctional Center due to the forgery of an unknown inmate and sent the money to a third party without the Claimants permission.

The Claimant filed a grievance with the Menard Correctional Center Institutional Inquiry Board, which found that the Department of Corrections failed to investigate the Claimant’s complaint; that the Board would assume the money was disbursed due to staff negligence; and that the Board would recommend that the Claimant be reimbursed in the amount of $300. Warden James H. Theiret concurred. However, the tort claims coordinator for the Department declined to approve the reimbursement because the coordinator found that the Claimant failed to substantiate that the loss was the result of direct staff negligence. Department personnel later recommended that the Claimant pursue his claim in the Court of Claims.

A hearing was held by the Commissioner on May 7, 1996. The evidence presented at the hearing consisted of testimony from the Claimant and testimony from Christine Bowles, Trust Office Supervisor at the Menard Correctional Center. The Claimant waived the filing of a brief. The Respondent filed a brief on July 15,1996.

The facts of this case are not disputed. An unknown inmate, using the Claimants name, filled out a voucher requesting the transfer of $300 from the Claimant’s trust fund account to an individual identified as Katie Cranberry. The amount was deducted from the Claimant’s account. About a week later, when the Claimant went to the commissary, he discovered that the money was taken from his trust account. The Claimant attempted to reach Katie Granberiy via letter, but received no response. The identity of the inmate who forged the Claimant’s name has never been learned. Christine Bowles, the Trust Office Supervisor, testified that the system in place at that time for verifying vouchers was “really pretty poor.”

Section 25 of the Court of Claims Act requires that, before a Claimant may file a claim, he shall exhaust all other remedies and sources of recovery whether administrative or judicial. (705 ILCS 505/25.) The Respondent’s only argument is that the Claimant failed to exhaust his remedies in compliance with the Act.

It is the finding of this court that the Claimant did exhaust his remedies. The Respondent argues that the Claimant failed to exhaust his remedies by failing to sue Katie Cranberry. As authority for this proposition, the Respondent cites Doe v. State (1991), 43 Ill. Ct. Cl. 172, in which this court granted a motion to dismiss the complaint of a patient of a State mental health facility who was assaulted by another patient because the Claimant failed to sue the other patient. Doe is inapposite to the case at bar. The Claimant in Doe was able to identify the party who committed the tort, leaving no bar to a suit against that party. In the instant case, the tort feasor was not Katie Cranberry. She may have received the money, but she did not forge the Claimants name and defraud the Claimant and the Department. Because the identity of the tort feasor is unknown, the Claimant is unable to pursue a legal or equitable remedy against the tort feasor. Furthermore, the Claimant did attempt to investigate the forgery by attempting to contact Katie Cranberry.

Although the Respondent does not argue directly that the Claimant failed to exhaust his administrative remedies within the Department, it does cite a case as authority or such an argument. The Respondent cites Watkins v. State (1992), 45 Ill. Ct. Cl. 203. The underlying facts in Watkins are similar to the case at bar. However, the Claimant in Watkins failed to appeal an adverse ruling by the Institutional Inquiry Board. Here, the Claimant received a favorable ruling from the Board and from the warden, which the tort claim coordinator declined to approve. The Claimant was then advised by departmental personnel that his next step was to file a complaint with this Court. These facts make the instant case distinguishable from Watkins.

Turning to the substantive issues of the complaint, this Court has held that the State has a duty to exercise reasonable care to safeguard and return an inmates property when it takes actual physical possession of such property. (Harris v. State (1994), 46 Ill. Ct. Cl. 190; Gammons v. State (1981), 35 Ill. Ct. Cl. 271; Doubling v. State (1976), 32 Ill. Ct. Cl. 1.) Furthermore, the loss of bailed property while in the possession of a bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. Harris v. State (1994), 46 Ill. Ct. Cl. at 193.

In the instant case, the Claimant has shown that the Respondent was in actual physical possession of his property — the $300 in the trust fund account. Therefore, there is a presumption of negligence by the Respondent unless the Respondent rebuts this presumption by evidence of due care. The Respondent did not offer evidence to rebut the presumption. In fact, Christine Bowles, the Trust Office Supervisor, testified that the system was “really pretty poor.”

It is therefore ordered that the Claimant is awarded $300 in full and complete satisfaction of this claim.


author: Mitchell, J.

text:
    (No. 93-CC-0521
    Ali Hassen, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 12, 1997.

    Ali Hassen, pro se, for Claimant.
    Jim Ryan, Attorney General (Diann K. Marsalek and Jennifer Link, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Mitchell, J.

Claimant is an inmate with the Illinois Department of Corrections who was incarcerated at Dixon Correctional Center in Dixon, Illinois, at all times relevant to his claim. In 1985, five years prior to his incarceration, Claimant was first diagnosed as having asthma. Since that time, Claimant has received periodic treatments for asthma.

In his complaint and at a hearing conducted by a commissioner of this court, Claimant alleged that on September 26, 1991, he suffered an asthma attack while in the hallway near the prison library. Claimant left the building without a pass and waled toward the prison health care unit, apparently quite a distance from the library. On his way to the health care unit, Claimant was detained by correctional officers and questioned about where he was going and his authority to be going there. Claimant alleges that 12 minutes after he left the library, two additional officers, Lieutenant Burge and Captain Dempsey, detained Claimant and questioned him as to where he was going. These officers gave Claimant several direct orders to stop, and Claimant did eventually stop. After a brief exchange with those two officers, Claimant alleges that he was driven to the Health Care Unit in a vehicle used by prison staff, treated, and sent back to his housing unit.

Claimant testified that he attempted to tell the officers where he was going and did not use offensive language. Witnesses for the Respondent testified that Claimant was evasive with his answers and used offensive language. The following day, Claimant was given disciplinary reports for, among other things, unauthorized movement and insolence. These reports were heard at an adjustment committee hearing where Claimant was found guilty and disciplined with two weeks’ loss of library and commissary privileges.

At the hearing before a commissioner of this Court, Respondent produced witnesses who testified that the Claimant left the library without a pass and without authorization. Claimant disagreed with the witnesses presented by Respondent about the necessity of a pass or authorization in emergent situations, such as an asthma attack, and disagreed about Claimant’s use of offensive language.

The jurisdiction of this Court is limited by statute as found in section'8 of the Court of Claims Act. (705 ILCS 505/8.) The decision to require inmates to move between buildings only after obtaining a pass or receiving permission is within the administrative discretion of Dixon Correctional Center. Complaints challenging this administrative discretion fail to state a claim upon which relief can be granted by this Court. Holmes v. State (1978), 32 Ill. Ct. Cl. 275.

Furthermore, Claimant has failed to show that he suffered any measurable damage as a result of the enforcement of this policy. The Claimant has the burden of proving his damages and in the absence of such proof, no award may be entered. (Harris v. State (1989), 41 Ill. Ct. Cl. 184; Jackson v. State (1992), 45 Ill. Ct. Cl. 314.) Claimant has not alleged, let alone proven, that he received inadequate medical treatment or that the brief detentions by prison staff caused him harm in any measurable manner.

Accordingly, it is hereby ordered that Claimant’s claim be, and hereby is, denied and this case be closed.


author: Patchett, J.

text:
    (No. 93-CC-1262
    Johnnie Veal, Claimant, v. Paul Klincar et at., Respondents.

      Order filed August 5, 1996.

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

Patchett, J.

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

1. When Claimant was an inmate at the Sheridan Correctional Center, he brought this complaint in tort against Paul Klincar and the Illinois Prisoner Review Board, including present and/or past Prisoner Review Board members. Claimant was convicted of a crime and sentenced on January 31,1972.

2. Claimant appears to allege that the Prisoner Review Board arbitrarily acted beyond its legal authority by applying a three-year appearance date to the Board for Claimant and later applying section 1003 — 5(f) of the Unified Code of Corrections (Ill. Rev. Stat. ch. 38, par. 1003 — 5(f)) to this action, subjecting Claimant to endure an ex post facto condition. Based on the Prisoner Review Boards actions Claimant alleges the Respondents caused severe mental and emotional distress, and physical and psychological humiliation to Claimant. As a result, Claimant prays this Court enter a judgment against the Respondents and for the Claimant for a total sum of $830,000.

3. The Illinois Court of Claims is a court of limited jurisdiction. (See 705 ILCS 505/5 (1992).) The Claimants complaint is based on a decision of the Prisoner Review Board, which Claimant alleges acted arbitrarily and beyond its legal authority. The Court of Claims Act does not confer jurisdiction on the Court of Claims to hear decisions of the Prisoner Review Board. Furthermore, the Prisoner Review Board does not provide a mechanism for a review/appeal of its decisions to the Illinois Court of Claims.

4. The Prisoner Review Boards procedures for requesting a rehearing of a decision regarding parole are quite specific. Title 20, Ch. IV, Section 1610.100 of the Illinois Administrative Code provides:

“(1) A rehearing will be granted only by the affirmative action of the Board in conference.
(2) After a parole is denied, a rehearing may be requested by the person who was denied.parole or another in his behalf. Such request must be made in writing and must set forth new facts or extraordinary circumstances which could not' have been known to the parole applicant at the time of his interview by the Board member, or new facts or extraordinary circumstances which have arisen subsequent to the time of the interview, or both, which have not been previously considered.” Title 20, Ch. IV, Section 1610.100 Illinois Administrative Code.

5. This is the proper recourse of review available to the Claimant. Claimant has not requested a hearing. Thus, jurisdiction to entertain this matter does not lie in the Court of Claims. In addition, by filing a claim in the Court of Claims and not petitioning for hearing according to the rules established by the Prisoner Review Board, the Claimant has failed to exhaust his administrative remedies as required by section 790.60 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) and section 25 of the Court of Claims Act (705 ILCS 505/25), which require that any person who files a claim in the Court shall, before seeking final determination of his claim, exhaust all remedies, whether administrative, legal or equitable.

6. Rule 790.90 of the Court of Claims Regulations provides that failure to comply with the provisions of 790.60 shall be grounds for dismissal.

Wherefore, based on the Court of Claims’ lack of jurisdiction to review decisions of the Prisoner Review Board, or, in the alternative, Claimant’s failure to exhaust available remedies, Respondents respectfully move this court to enter an order dismissing Claimant’s claim with prejudice.

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


text:
    (No. 93-CC-1952
    New Division-Clybourn Currency Exchange, Inc., Claimant, v. The State of Illinois, Dixon Correctional Center-Inmate Trust Fund, Respondents.

      Order filed August 28, 1996.

    Ira Nevel, for Claimant.
    Jim Ryan, Attorney General (Joel Cabrera, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This cause comes before the court on a verified complaint filed by Claimant, New Division-Clybourn Currency Exchange, Inc., alleging that Respondent, State of Illinois, wrongfully refuses to reimburse Claimant for the value of a $500 check. The Claimant contends that it is a holder in due course, pursuant to section 3 — 302 of the Uniform Commercial Code. (810 ILCS 5/3 — 302.) In addition to the value of the check, Claimant seeks reasonable attorneys fees in the sum of $350, pursuant to section 17 — la of the Criminal Code of 1961 (720 ILCS 5/la) and seeks interest at the rate of 9%, pursuant to section 2 of the Interest Act. 815 ILCS 205/2.

A hearing was conducted on March 31, 1995, at which one witness, Marty Nevel, the president of Claimant, was presented. Claimant referenced four exhibits and Respondent presented one exhibit, the department report.

I. Claimants Case in Chief

Mr. Nevel testified that the normal procedures regarding check cashing is to make sure the person presenting it must be on Claimants files by means of a signature card. If the person is unfamiliar, then Claimant verifies the check usually with the bank to verify if there are funds available or stop payments.

In this instance, Claimant registered the payee, Dekota Short. He identified Claimants Exhibit No. 1 as a check drawn from the Dixon Correctional Center made payable to Dekota Short for $500 dated August 14, 1992. The check was cashed by Claimant.

Mr. Nevel identified Claimants Exhibit No. 2 as the signature card completed by Dekota Short and verified by a Public Aid identification card dated August 21, 1992. The signature on her identification card matched the signature on the check and on the signature card. He identified Claimants Exhibit No. 3 as a copy of the Claimants telephone bill showing a telephone call to the Dixon National Bank on August 21,1992. The bank confirmed that there were no stop payment orders and that there were sufficient funds in the account. Claimant charged Dekota Short $6.90 as a service charge. Claimant verified the signatures on the check.

The check was returned to Claimant on August 26. After the check was returned, he had a conversation with Sally Brady, the Business Administrator for Dixon Correctional Center (hereinafter “DCC”).

On cross-examination, Mr. Nevel acknowledged that Claimant has not filed a suit to collect the $500 from the bank.

II. Respondents Case in Chief

Respondent offered its department report, pursuant to section 790.140 of the Court of Claims Regulations. (Respondent’s Exhibit No. 1.) Claimant objected. The Court admits pages 3 through 12 into evidence.

III. Rebuttal Testimony by Claimant

Mr. Nevel was recalled to present testimony in rebuttal to Respondent’s Exhibit No. 1. He stated that Sally Brady of DCC informed him that a stop payment had been placed on the check because the signatures on the check requested form had been forged. Apparently the signatures of an inmate and the assistant warden were forged on the request form. The funds were to come from an inmates account. After the check was mailed, DCC discovered the mistake and placed a stop payment. Mr. Nevel indicated that he would have never cashed the check had he been told that a stop payment had been placed on it.

IV. Argument of the Parties

On the merits, Claimant argues that the Respondents evidence does not prove that the inmate’s signature was forged. The Respondent put the check into the stream of commerce and Claimant was a holder in due course, subject only to real defenses which are not present in this case. Claimant had no duty to call the bank. In the alternative, Claimant argues that the Respondent was negligent.

. The Respondent argues that the Claimant has failed to exhaust its remedies pursuant to section 790.60 of the Court of Claims Regulations. (74 Ill. Adm. Code 790.60.) Section 25 of the Court of Claims Act requires any person who files a claim to exhaust all other remedies and sources of recovery. (705 ILCS 505/25.) Claimant did not file suit against the bank or the endorser, Dekota Short. The documents show that a stop payment order was placed on August 19, 1992, two days'before the check was presented to Claimant. Respondent argues that attorney’s fees, costs and interest are not recoverable against the State unless specifically authorized by statute.

• Claimant waived its- opportunity to file a brief; however, the Respondent requested time to file a brief. No briefs have been received.

V. Conclusion

It appears from the record that the check in question is not a State warrant drawn on the State Treasury. It is drawn on an Inmate Trust Fund account held at Dixon National Bank. Mr. Nevel testified that he called the bank on August 21, 1992, when Dekota Short presented the check prior to cashing it and was not told anything by the bank that caused him to believe the check would not be honored. The record indicates that a stop payment order was in place maybe as early as August 19.

The threshold question is whether Claimant must proceed against other parties prior to seeking recovery from Respondent. Based upon Mr. Nevels testimony, the Court finds that the bank was in error in responding to Mr. Nevel that it would honor the check. Nothing in the record indicates whether Claimant has sought recovery against Dekota Short or the bank.

The Court finds that Claimant is required to exhaust remedies or recoveries against all other persons before proceeding against Respondent. Therefore, the claim is denied.


text:
    (No. 94-CC-2267
    Richard Black, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 11, 1996.

      Order on Petition for Rehearing filed August 5, 1996.

    Richard Black, pro se, for Claimant.
    Jim Ryan, Attorney General (James Doran, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This cause comes before the Court on Claimant Richard Black’s complaint seeking damages-in the sum of $500,000 for breach of contract by Respondent State of Illinois. Claimant alleges that Illinois State University (hereinafter ISU) withdrew his enrollment in a class, Sociology 210, without authority and without affording him procedural safeguards. The complaint states that ISU discriminated against Claimant “an African American by involuntarily withholding his enrollment in Sociology 210 for participating in robust discussions with David Eaton, a white.”

A hearing was conducted on April 13, 1995, at which Claimant appeared and testified. Mr. Black stated that he was enrolled in Sociology 210 and was forced to withdraw without procedural safeguards. The instructor had presented a three-dimensional depiction of health. After the instructor asked for criticism, Claimant said “that it sounded like hogwash.” The class was conducted by ISU at Pontiac Correctional Center (hereinafter PCC). He did not pay any fees or other money in relation to the course.

Claimant stated on cross-examination that the incident took place in February 1989, and that he graduated from ISU in December 1993. He filed a grievance with the Students Judicial Office at ISU. He was told that he was removed from the class by prison officials. The decision was appealed pursuant to appeal procedure at ISU and was affirmed in the fall of 1990. ISU denied any responsibility for the withdrawal. Claimant believes the instructor had him removed from the list. Later, Will Davis, an employee of ISU and a class coordinator at PCC told Claimant that he could no longer attend the class. He told Claimant that he was intimidating his instructors. He was attending the class and another one in communications. Claimant indicated that Mr. Davis attempted to have him removed from the communication class, but after some discussion he remained.

Claimant believes that this is a case of discrimination because he had had a heated discussion with Dwight Brooks, the African American instructor of the communication course, but was not removed from that class. The instructor of Sociology 210, David Eaton, is white.

Claimant argued that he was not afforded any procedural safeguards. The ISU catalog specifies that any instructor observing or suspecting misconduct of a student must first read the student a statement of rights. This was not done. If the problem cannot be resolved informally, then the instructor is to write a formal disciplinary report. The student handbook specifies that a student is not to be removed from a class or denied permission to attend unless his attendance would endanger life or property. Claimant did not have a copy of the student catalog or the student handbook with him.

Claimant argued that the Illinois School Code provides that the Illinois Department of Corrections (hereinafter Department) is in control of the school room and only the department can say who is admitted, not ISU. He requested damages in the sum of $25,000 because an educational opportunity was withdrawn from him and his rights were violated.

The departmental report was made a part of the record. The record was left open to allow Claimant to provide a copy of his grievance letter from ISU, a copy of the student handbook and the pertinent provisions of the School Code.

Claimant cites sections 13 — 43.11 and 13 — 43.12 of the Illinois School Code (105 ILCS 5/13 — 43.11 ánd 5/13 — 43.12), for the purpose of demonstrating that only the Department had the authority to remove him. An October 27,1989, letter addressed to Claimant indicated that the Student Grievance Committee denied his grievance. The letter, signed by the Acting Associate Director of the Student. Judicial Office Annex or ISU, also stated that:

"The investigating team found that the decision to bar you from the classroom was punishment established by the correctional institution. Professor David Eaton did not request that you be removed from the class nor did he participate in the decision to bar you from any future courses.”

In a November 1, 1989, letter to the Student Code Enforcement and Review Board, Claimant appealed the denial of his grievance. He stated that Professor David Eaton did point the áccusing finger at him and supplied misinformation about his conduct in class. The letter states that the Committees finding that the decision tó exclude him was made by the Department was incorrect because Wilbert Davis, an ISU advisor and supervisor, stated that he made the decision to exclude Claimant, based upon an accusation by Eaton. He stated that the Committee ignored that he was also enrolled in a communication class but was only prevented from attending Eatons class. He complained that the Committee did not interview him or Mr. Davis.

In a January 8, 1990, letter to Claimant, the president of ISU indicates that the appeal was denied by the Review Board.

The provisions of the handbook appear to establish a Student Code of Conduct and indicates that ISU applies disciplinary sanctions for violations of expressed regulations. The procedures to be followed when a student is charged with violations of the expressed regulations are stated.

Respondent has not filed a brief. Respondent filed a departmental report that is hundreds of pages in length and contains numerous documents that are not relevant and is not organized in any fashion, i.e., chronologically. The report is of no assistance in determining this case. Respondent has not enunciated its positions.

In order to prove his breach of contract complaint, Claimant has the burden of establishing by a preponderance of the evidence that a contract was in existence. (Hanifi v. State (1993), 46 Ill. Ct. Cl. 131, 141.) The Claimant has failed to establish the existence of a contract between him and ISU. There are no documents in the record that could be interpreted as providing the terms of a contract between Claimant and ISU. Claimant’s testimony, that he did not pay any fee or money to attend the Sociology 210 class, indicates that no consideration was provided by Claimant for the right to attend the class.

Claimant did not provide any statutory citations or other legal authority to indicate that he possessed contractual rights in relation to the class. Claimant has not established the facts of his removal, nor has he provided any documents that ordered or directed him to be removed from the class. We are constrained to deny Claimant’s claim.

It is therefore ordered, adjudged and decreed that this claim is dismissed and forever barred.

ORDER

Raucci, J.

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

The petition for rehearing should be denied.

It is therefore ordered that the Claimants petition for rehearing is denied.


text:
    (No. 94-CC-2555
    Shefsky & Froelich, Ltd., Claimant, v. The State of Illinois, Respondent.

      Order filed June 29, 1994.

      Opinion filed April 29, 1997.

    Shefsky & Froelich, Ltd., pro se, for Claimant.
    Jim Ryan, Attorney General (Michael Rocks, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, C.J.

Claimant Shefsky & Froelich, Ltd., a law firm, brought this claim seeking payment of $30,000 in legal fees and $286.67 in costs for representing the Respondents Department of Financial Institutions (DFI) in a proceeding to determine where unclaimed tax refunds should be sent. Claimant alleged in its standard lapsed appropriation form complaint that demand for payment was made to DFI but the demand was refused on the grounds that the funds appropriated for the payment had lapsed. The Respondent filed a stipulation agreeing to entry of an award in the full amount sought. The claim is now before the Court for approval of the stipulation.

The Court is not bound by such stipulations and, based on the record herein, we cannot approve the one at bar.

The record indicates that the Claimant had no written contract with DFI to perform the services. For the same reasons that DFI could not make payment in the absence of a contract, the Court cannot make an award. Pursuant to sections 9.01 and 10 of the Illinois Purchasing Act (30 ILCS 505/9.01, 505/10), such agreements must be reduced to writing and if not then they are void. Failure to comply with the Illinois Purchasing Act in this instance also runs afoul of section 11 of the State Comptroller Act, 15 ILCS 405/11.

Thus, we are constrained by law to disapprove the stipulation. However, for purposes of possible further consideration of this matter by the General Assembly and in fulfillment of our responsibilities as an advisory body to the General Assembly we point out that the record indicates the following:

1. At the request of DFI, the Attorney General did appoint the Claimant Special Attorney General to handle the case.

2. DFI received $300,000 in unclaimed assets.

3. BiHings in this claim spanned three fiscal years, including FY94, and DFI lapsed or had a projected lapse balance in a contractual line in excess of $1,000,000 in each of those years.

4. DFI has stated it would have made the payment had a contract been executed, and DFI has stated it agrees that this claim is valid.

5. Any appropriation to pay this claim should be made from Fund No. 054.

Wherefore, it is hereby ordered that the stipulation at bar be, and hereby is, disapproved.

OPINION

Sommer, C.J.

The Claimants complaint seeks $30,286.67 for services provided to the Department of Financial Institutions (DFI). A departmental report, dated April 5, 1994, agreed that this is a valid claim. On May 23, 1994, the Respondent filed a stipulation, agreeing to an entry of an award.

On June 29, 1994, this Court entered an order disapproving the stipulation. This Court found that the Claimant had no written contract with DFI to perform the services. Pursuant to sections 9.01 and 10 of the Illinois Purchasing Act, such agreements must be reduced to writing and, if not, they are void. (30 ILCS 505/9.01, 505/10.) The parties do agree that the Claimant provided the services claimed over the three fiscal years at the request of DFI and with the appointment by the Attorney General.

A hearing was conducted on October 17, 1996. The Respondent appeared through its counsel, Mr. Michael Rocks, Assistant Attorney General, and Mr. Howard A. Davis appeared on behalf of the Claimant. The parties waived the right to have a court reporter present and a transcript made. Mr. Davis had verified the complaint. He identified the 11 pages of group exhibit A and invoice for period through August 31, 1993, attached to the complaint. Mr. Davis testified that he either provided most of the services or was familiar enough with the services provided to know the billings accurately reflect the amount of time expended on behalf of the State.

The parties agreed that the Claimant would submit documents in support of its claim. The Respondent would then have the right to respond with the Claimant maintaining a right to reply.

The Claimant filed a letter, dated November 7, 1996, containing certain information and two additional documents. According to the Claimant, the services were provided to DFI in regard to the Shapiro v. Barnett litigation. The Claimant’s letter indicates that $30,572 (differing from the $30,286.47 claimed in the complaint, exhibits, and stipulation) is claimed and can be separated by fiscal year as follows: (a) FY92 — $10,146.50; (b) FY93 — $15,846.59 and (c) FY94 — $4,479. Attached to the Claimant’s letter is a copy of a January 11, 1993, letter from Mr. Davis to the general counsel of DFI. The letter recounts a conversation die two had wherein the general counsel agreed that DFI would pay the Claimant a contingent fee of ten percent plus costs based on monies collected by DFI from the Shapiro case, for the services provided to DFI. The copy of the January 11, 1993, letter was not executed by the general counsel or anyone else on behalf of the Respondent. Also attached to the Claimant’s letter is a March 15, 1993, interoffice memorandum. The Claimants memorandum states that on March 11, 1993, the general counsel for DFI called to inform Mr. Davis that the Claimant would be paid for representing the Department on the 10% contingent fee basis set forth in the prior letter to the general counsel.

The Respondent did not file any letters, briefs or other written material. The Respondent has not disputed, and even agrees with, the facts as presented by the Claimant.

The record contains sufficient information to support a finding that an agreement was formed between the parties. It was an oral agreement, the terms of which are represented by the January 11, 1993, letter. In a suit involving parties other than the State of Illinois, such an agreement could be enforceable against both parties. However, the Illinois Purchasing Act (30 ILCS 505/9.01, 505/10) declares such “agreement” to be void. But for the statutory provisions, as previously cited by the Court, the Claimant would have an enforceable right. This Court, however, finds that the Claimant did provide the services and that the 10% contingent fee plus costs, supported by the number of hours of service indicated in the Claimant’s document is reasonable in the amount of $30,286.67.

It is therefore ordered that this claim is denied. However, it is recommended that the Claimant present this claim to the General Assembly for consideration of payment. This Court has found that the Claimant did provide services to the State at the State’s request and that such services are reasonably valued at $30,286.67. Any payment should be from the fund prefixed 054, and not from the general revenue fund.