author: Raucci, J.

text:
    (No. 84-CC-3301
    John L. Grieves and Grieves Construction Co., Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 19, 1987.

    James L. Brusatte, for Claimants.
    Neil F. Hartigan, Attorney General (Jennifer Dover, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is an action brought by Claimant for damages for an alleged breach of contract.

On April 30,1982, bids were opened at the office of Starved Rock State Park for carpentry work for the period of July 1,1982, through June 30,1983.

The work to be performed under the contract was defined in the request for bids as follows:

“2. Services generally may be defined as preventative maintenance services, routine repair services, and emergency repair services.”

There were two bids. Edward J. Muhich bid $26.00 per hour for labor and 15% above cost of materials, while Claimant, John L. Grieves (also known as Grieves Construction Company) bid $17.00 per hour for labor and 5% above cost of materials. (Resp. Ex. 1).

Claimant was awarded the contract, and subsequently the contract was extended for another year, through June 30, 1984. No written contract documents were ever signed, but see the following in Respondent’s answer to Claimant’s interrogatories:

“Interrogatory No. 7: Did the State of Illinois have any contracts with the claimant, Grieves Construction Company during the years 1982-1983 and 1983-1984? If the answer to the above is yes, then:

A) State the precise nature of each contract and describe the work to be done thereunder;

B) Provide the date each contract was entered into and its duration;

C) Provide the times and dates Grieves Construction Company was called to perform work under said contract.”

Answer to interrogatory No. 7:

“Yes

A) Carpentry preventive maintenance services, routine repair services and emergency repair services.

B) Fiscal year 1983 from July 1,1982 to June 30,1983 signed April 30,1982; Fiscal Year 1983 from July 1,1983 to June 30,1984 signed May 10,1983.

C) None.”

Thus, for the purposes of this case, whether or not the State actually entered into a contract with Claimant is not an issue. Respondent has conceded that a contract exists.

The language appearing at the bottom of the certification of the opening of the bids reads:

“Amount to Encumber for this Trade Starved Rock: $1,000
Matthiessen: $ 500”

Thus, it is clear that no work could be performed under the contract that would involve an expenditure in excess of $1,000.00 at Starved Rock and $500.00 at Matthiessen.

The explanation for this limitation can be found in section 6(5) of the Illinois Purchasing Act (Ill. Rev. Stat., ch. 127, par. 132.6 (5)), the Department of Conservation Physical Operations Handbook (referred to in testimony but not introduced into evidence), and the Comptrollers Uniform Statewide Accounting System.

Mr. Bobby Ray Wise, procurement and operations officer for the Department of Conservation, summarized these purchasing limitations as follows:

“We have certain in house limits that we have in our general services or physical operations handbook., And those are stated to our site managers, number one. In that particular handbook it indicates to the site people that you can go up to $1,000 on their own. Site people with approval of the regional land managers can go up to $2,500. Anything over $2,500 that had to be approved by the Springfield office. And at that time a Cod form, C-o-d, or comptrollers obligation document have to be filed with those folks. Anything over and above those amounts up to $5,000 can be filed after it has been advertised in a case like this and obligated with the comptroller with no problems. That is for a single project. Any project over $5,000, but not exceeding ten has to be advertised, also. No project over $10,000 can be handled by the Department. At that time the Capital Development Board takes over. And they have to advertise the contract or with their authority they could authorize it back to the Department under their jurisdiction and sign off.” (Tr. 120-21).

In addition to entering into a maintenance contract with Claimant in the spring of 1982, the Department of Conservation began the paperwork required to replace 82 windows at the Starved Rock State Park Lodge at an estimated cost of $25,000.00 for the windows.

Thus, by letter of June 22, 1982, the Department of Conservation wrote a letter to the Capital Development Board requesting the Capital Development Board to fund the project in the amount of $25,000.00.

An undated project description form (Resp. Ex. 15) prepared by Mario Vitale, states:

“We need to replace the windows in the guest rooms of the lodge because the window frames are deteriorating and do not close properly. The windows are to be replaced by the Regional Hot Shot Crew.”

The form has a section for methods of execution, reproduced below:

EXECUTION METHOD

x Purchase Materials/DOC Construct

_ Purchase Materials/Contractor Construct

_ Contractor Furnish Materials, Labor & Construction

The foregoing indicates that the Department did not contemplate that an outside contractor would perform the labor of installing the windows. Rather, it was contemplated that the installation would be done by Department of Conservation Personnel. This is corroborated in Respondent’s exhibits 14 and 18. Exhibit 14 reads:

“June 29,1982
Mr. Thomas Madigan, Director of Operations Capital Development Board 3rd Floor, Wm. G. Stratton Bldg.
Springfield, Illinois 62706
RE: Starved Rock Lodge — Window Replacement $25,000
Dear Mr. Madigan:
The Illinois Department of Conservation desires to program this project as a purchase, DOC construct. It is felt this is the most viable alternative due to the following:
1. The region’s carpenter staff is located at the Starved Rock site. This crew is capable of doing this work and their proximity to the site will cut the cost of construction.
2. Utilizing DOC’s crew and a purchase will result in the maximum number of windows being installed at the cheapest cost. Two years ago the A/E on the rehabilitation project estimated the cost of this work at $42,000. When inflation contingencies and A/E fees are added to this figure a savings of at least 502! should be realized by executing this project as proposed.
Please advise if additional information is required.
Sincerely,
Robert E. Corrigan, Chief Division of Technical Services”

By letter dated July 6, 1982, the Capital Development Board approved the project as outlined by the Department of Conservation.

Mr. Wise gave the following pertinent testimony:

“MS. DOVER: Do you have personal knowledge as to what classifications the project at Starved Rock was given?

A. Yes, it was a permanent improvement project due to the size, type and extent and funding source from which it was paid.

Q. Could you explain that more fully for the Court?

A. Okay, Number One, because the amount exceeded $10,000 for the scope of the work, the Capital Development Board became involved in the project, thus the funding source had to come from them. It was Capital Development Board bond funds that were used. And the scope of work originally called for an estimated cost of approximately $42,000. Due to the size and nature of the project our engineering technical services personnel wrote a letter to Mr. Tom Madigan. He is the Director of Operations with the Capital Development Board. And asked them due to the size of the project and the fact that there would have to be an architect, engineer, feasibility fees, a lot of overhead costs involved, could the Department of Conservation execute a purchase through central management services and have DOC personnel do the construction. As a result, Mr. Madigan wrote a letter back stating that he would, in fact approve that, and signed a letter to that effect in which we would execute the purchase. And that resulted in our specifying the windows from their source and in turn using personnel services dollars for the labor involved.” (Tr. 126,127)

Nevertheless, in spite of the foregoing, on March 7, 1983, Robert Kleczewski, Superintendent at Starved Rock State Park, called Claimant to come to the park to discuss the work that would have to be done to install the 82 windows which had arrived and which were smaller than the window openings. The matter is set forth in Claimant’s brief:

“The meeting with Mr. Kleczewski at the Lodge began shortly after lunch. (R27). According to Mr. Grieves, Mr. Kleczewski informed the Claimant that the Department of Conservation wanted Grieves Construction Company to install some windows that the State had purchased. (R28). Particularly, Mr. Kleczewski told Mr. Grieves that he wanted him to install the windows on a time and material basis as under the contract in existence. (R28). Mr. Grieves and Mr. Lahey went into some detail with Mr. Kleczewski as to how the job would be performed. This was pursuant to Mr. Kleczewski’s request. (R28). Mr. Grieves and Mr. Lahey began preliminary measurements and specifications for the job at the meeting. (R29). Claimant’s Exhibit #3 was testified to and admitted into evidence. This exhibit consisted of the hand written notes and specifications regarding the carpentry work in question made by the Claimant, himself, while inspecting the job with Mr. Kleczewski during the meeting at the Lodge. Said preliminary specifications and drafting was testified to in detail by the Claimant. (R29-34). The date of the document was March 7, 1983. Mr. Grieves then testified that Mr. Kleczewski informed him that he would be getting back in touch with Mr. Grieves to tell him when he wanted to start installing the windows. (R34). Further, Mr. Kleczewski, at no time, indicated that Claimant’s obtaining the job was contingent on anything nor was Claimant asked to provide an estimate. (R35). Mr. Grieves specifically stated that Mr. Kleczewski informed him that the work would be done under a time and material basis pursuant to the contract Grieves Construction Company had with the State of Illinois. (R35).” (Claimant’s Rrief 6).

In addition, Muhich Construction Company, under date of March 4,1983, submitted a bid in the amount of $24,306.00 to do the labor to replace the windows.

Claimant heard nothing further from Mr. Kleczewski. About four or five weeks after the March 7, 1983, meeting, Claimant called Mr. Kleczewski to find out when he would get started. Mr. Kleczewski said he would get in touch with him.

Late in May 1983, Claimant learned that two of Mr. Muhich’s carpenters had been put on the payroll of the Department of Conservation to do the job. One was being paid $15.78 an hour as carpenter foreman and the other was being paid $15.03 per hour as carpenter. The total wages paid to the two men, as employees of the Department of Conservation from May 2, 1983, to June 16,1983, came to $9,119.76.

If Mr. Grieves had done the work at $17.00 per hour the cost to the State would have been greater.

The windows themselves cost $12,927.33, a figure exceeding the limits established by the comptroller for routine maintenance work.

Mr. Wise testified:

“Q. And does the cost provided, the cost mentioned in that purchase order, does that cost exceed the limits established by the comptroller for routine maintenance work?

A. Yes, it would.

Q. Do you have any personal knowledge as to how the labor portion for this project was handled?

A. Yes, I do. Through the records, two individuals were hired and put on the personnel services payroll for the period of time necessary to complete this project.

Q. Do you know out of what fund the labor was paid?

A. Paid out of the personnel services account. I don’t know the specific fund, that being general revenue versus state park fund, but it was a payroll as opposed to a contractual service arrangement. In that case their benefits, taxes were withheld, paid into a retirement system. All the things that any State of Illinois employee would do.” (Tr. 128)

Claimant argues that in putting two carpenters on the State payroll to install the windows, the State breached its contract with him. His case is without merit.

The certificate of the opening of the bids show on its face that the cost of any work done under the contract could not exceed $1,000.00 for Starved Rock and $500.00 for Matthiessen. The comptroller’s regulations and the Illinois Purchasing Act make clear that a project involving labor costs of $9,119.76 could not have been performed under Claimant’s contract. The Department of Conservation correspondence indicates that from the outset, the labor was to be done by persons on the Department payroll. Further, under the comptroller’s regulations, the work was not maintenance but renovation. Mr. Kleczewski was totally in error in giving Claimant to understand that he could do the work under his contract.

Claimant argues, however, that the officials at the park should have attempted to honor his interpretation of the contract by putting him and his employee on the payroll rather than making State employees out of the employees of his competitor. Nothing in the contract or law required such action.

It is therefore ordered, adjudged and decreed that this claim be, and hereby is denied, with prejudice.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 85-CC-0201
    Lillian Lapalio, Claimant, v. University of Illinois Hospital and The State of Illinois, Respondents.

      Opinion filed August 27, 1987.

    Peter Fricano, for Claimant.
    Norman P. Jeddeloh, for Respondents.
   Raucci, J.

This is a claim for personal injuries by Claimant who alleges that, on July 29, 1983, the Claimant went to the University of Illinois diagnostic clinic for a medical appointment. At the conclusion of her appointment, as she was leaving the diagnostic clinic and was walking down the hall from the diagnostic clinic, Claimant noticed a substance surrounded by a puddle on the ground. She stated the substance looked like ice cream. Claimant walked around the ice cream and puddle and slipped and fell, hitting her head on the floor. Later, as she was being assisted in getting up, she saw what she slipped on as being “spider lines” coming out of the puddle of melted ice cream. The Claimant claims that she did not see the “spider line” of melted ice cream until after she had slipped.

After the accident, the Claimant was taken back to the diagnostic clinic where she was examined, and because of her headache and numbness, she was taken home, instead of back to work. She was told to go to bed and not move. She testified that later that night, because of severity of her pain, she was taken to the University of Illinois Hospital emergency room where she was admitted. Several days after her discharge from the hospital, Claimant had to again go to the hospital emergency room because of numbness and head pain. She alleges that as part of her medical treatment as a result of this accident, her attending physician, Dr. Sugar, put her in a neck collar and traction. Claimant testified that she was in traction for three or four months after the accident, and that at the present time, she periodically uses her neck collar. In addition to treatment by Dr. Sugar and Dr. Skosey of the Respondent’s hospital, Claimant also obtained medical treatment by Dr. Katz of Rush-Presbyterian Hospital because of her head pain and sleepless nights. Dr. Katz eventually placed the Claimant on Naprosyn and Elavil prescription medication, which the Claimant still uses on a daily basis for her head and rib pain to help her sleep. She still has these problems as a result of her injuries. The Claimant stated that she is still under active medical treatment from Dr. Katz as a result of the injuries she sustained on July 29,1983. She alleges that to the present time she cannot do certain basic household chores as a result of her injuries.

Claimant was independently examined by Dr. David Stulberg, an orthopedic specialist. His findings are that Claimant had degenerated joint disease of the cervical spine and had sustained a strain of her cervical spine as a result of her fall. He further stated that her symptoms could be decreased with the administration of a physical therapy program and the institution of certain exercises.

The Claimant was employed by the City of Chicago’s Department on Aging and Disabilities. As a result of this accident, she lost 30 days from work immediately after the accident plus another two weeks of days off of work occasioned when she had to go to the doctor or had to stay home because of her head pains. Her amount of wage loss was $2,644.59. She testified that as a result of the injuries she sustained, she was forced to retire early, causing her additional wage loss of $20,332.00. As a result of her accident on July 29, 1983, Claimant incurred hospital, medical and drug bills in the amount of $4,879.38.

Respondent introduced evidence indicating that the ice cream spill had occurred immediately before the accident as indicated by the fact that the ice cream had not fully melted. A witness for the Respondent, who was working nearby at an intake desk, testified that she warned the Claimant of the condition and warned her to avoid the area and use care.

Respondent claims that Claimant is guilty of negligence in walking in the area after being warned and because of the theory of comparative negligence, Claimant is not entitled to recover. Respondent further claims it had insufficient notice of the ice cream spill to remove it and hence is not liable for Claimant’s injuries.

The record is clear that Respondent had actual notice of the ice cream spill. It is also clear that Claimant attempted to avoid the spill albeit unsuccessfully. We cannot conclude that her failure to avoid the thin “finger” of the melted ice cream constitutes comparative negligence. Our determination of this issue is fortified by our recognition that visitors (or patients) of medical institutions are preoccupied with concern over the reasons which brought them to the institution. This increases the need for immediate attention of personnel to spills and the like.

Based on the testimony and evidence adduced, we assess Claimant’s damage at $7,500.00.

It is therefore ordered, adjudged and decreed that Claimant is awarded $7,500.00 in full and complete satisfaction of this claim.


author: Burke, J.

text:
    (No. 85-CC-0295
    Wanda M. Evans, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 2, 1988.

    Deutsch & Deutsch (Sidney S. Deutsch, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

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

Finds that Claimant, Wanda M. Evans, brings this action against the State of Illinois, to recover damages sustained as a result of an automobile accident which occurred shortly after midnight on February 3, 1983. Claimant was a passenger in an automobile driven by her then husband, Carl Evans. The auto was proceeding in a westerly direction on Knoxville Road, just east of Illinois 67. It was snowing heavily causing a slippery road surface. At the point where Knoxville Road crosses Mill Creek, the Evans vehicle skidded off the roadway and dropped approximately 20 feet to the creekbed below. Claimant alleged that the post and guardrail on the east end of the north side of the bridge were broken which allowed the auto to slip off the roadway.

Claimant bases her claim for damages on the contention that the guardrails were broken and thus allowed the auto to slide off the roadway and drop to the creekbed. To support her contention, Claimant cites Zidek v. State (1969), 27 Ill. Ct. Cl. 12, but no guardrails or protective devices were ever in place in the Zidek case. However, in the instant case, guardrails were in place.

In order to prevail, Claimant must prove by a preponderance of the evidence that the State was negligent and that this alleged negligence was the proximate cause of the Claimant’s injuries. (Brockman v. State (1975), 31 Ill. Ct. Cl. 53.) Claimant must show that the existing guardrails, erected by the State of Illinois to maintain safe roadway conditions, were indeed in a state of disrepair at the time of the accident.

Evidence presented at the hearing established the following facts:

1. Milan police officer Green, who arrived on the scene within five minutes of the accident indicated there were no roadway defects.

2. The Illinois Department of Transportation departmental report indicates that Respondent had no knowledge of broken guardrails at the time of the accident and the guardrail was in good repair prior to the accident.

3. Claimant could not testify with certainty whether or not the guardrail was in good repair at the time of the accident.

4. Photographs and testimony of the driver of the auto lacked credibility. Driver identified photographs to be taken at two distinct periods of time. He claimed the photographs were taken after two accidents at the same location; one occurred in 1982 and the second on February 3, 1983. The photographs were clearly identical.

5. The affidavit of Raymond Harrison found in the IDOT report states that he believes the guardrails were not in good repair prior to the 1983 accident and this is disputed by the interview of Harry Favri, maintenance field engineer with IDOT in which he states that he and his workers routinely checked that roadway for damaged guardrails and that no damage was noted between the Evans’ 1982 and 1983 accidents.

Claimant has failed to prove by a preponderance of the evidence that the State either knew of the broken guardrail or should have known that said guardrail was in a state of disrepair and having had notice thereof, failed in its duty and obligations to make reasonable and necessary repairs. There has been no showing of the State’s negligence; therefore, it is not necessary to consider the questions of damages Claimant may have sustained as a result of the accident.

It is therefore ordered that this claim is denied and Claimant’s complaint is dismissed with prejudice.


author: Patchett, J.

text:
    (No. 85-CC-0443
    County of Cook, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 22, 1987.

      Order filed November 2, 1987.

    Jude Wiener, for Claimant.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This cause comes on for hearing upon a claim by the Claimant for reimbursement of certain expenses paid by Cook County to Cook County Public Aid employees. Under the former statutory arrangement, Ill. Rev. Stat., ch. 23, pars. 12 — 5, 12 — 18.4, and other similar statutes, the State of Illinois was to reimburse county departments of public aid for actual administrative expenses incurred in their discharge of duties in administering certain programs.

This case arose out of an award made in a case filed in the circuit court of Cook County, Merrill v. Drazk, 72 Ill. 5384. That case arose when certain employees of Cook County filed suit claiming that they were discriminated against because they did not receive the same benefits that other Cook County employees received. An award was ultimately made in that case to the plaintiffs. It has been an issue as to whether or not the State and County agreed on an indemnification agreement, which would be effective if the County did not appeal. This Court finds that if such an indemnification agreement ever existed, it has not been proven to this Court by competent evidence.

Ultimately, a factual stipulation was entered into by the Claimant and the Respondent. Pursuant to the stipulation, the Claimant agreed to reduce its claim to $2,405,055.26. Subsequent to the filing of the stipulation, Claimant filed a motion for summary judgment. Respondent filed a motion against summary judgment, and the Claimant filed a reply to the Respondent’s motion against summary judgment. Subsequent to the filing of the Claimant’s reply, the Respondent has not filed any additional pleadings. Therefore, this Court must accept the fact that the Respondent has stipulated to the entry of a judgment in favor of the Claimant in the sum of at least $2,405,055.26. This award is further supported by the fact that a similar case was decided by this Court, County of Cook v. State (1983), 36 Ill. Ct. Cl. 68. This case had a very similar factual situation.

The State continues to contest the entry of a further sum of $22,288.79, since the State claims they were attorney fees. The Court has considered the factual stipulation entered into between the parties, and they have considered the exhibits attached to the Claimant’s reply to the Respondent’s motion against summary judgment. Exhibit C-l, attached to that pleading, clearly establishes the County’s argument is correct as to the status of the sum of $22,288.79. It further appears that the factual stipulation entered into by the parties effectively eliminates any dispute on the underlying facts involved in this case.

Therefore, it is the opinion of this Court that an award should be entered in favor of the Claimant, the County of Cook, and against the Respondent, State of Illinois, in the sum of $2,405,055.26 (two million four hundred five thousand fifty five dollars and twenty six cents) pursuant to the factual stipulation entered into between the parties, and an additional award of $22,288.79 (twenty two thousand two hundred eighty eight dollars and seventy nine cents), said award to reflect the final payout pursuant to exhibit C-l attached to the Claimant’s reply to the Respondent’s motion against summary judgment. It is so ordered.

ORDER

Patchett, J.

This matter coming on to be heard upon the motion of Respondent for leave to withdraw its motion to reconsider this Court’s June 22, 1987, opinion granting Claimant’s motion for summary judgment, due notice having been given the parties hereto, and the Court being fully advised in the premises;

It is hereby ordered that Respondent’s motion be, and the same is, hereby granted, and Respondent is hereby granted leave to withdraw its motion to reconsider.


author: Montana, C.J.

text:
    (Nos. 85-CC-1151, 85-CC-1295, 85-CC-1442, 85-CC-1637, 85-CC-1642, 85-CC-1711, 85-CC-1894, 85-CC-2265, 86-CC-1148, 87-CC-0985, 87-CC-1141, 87-CC-2902 cons.
    Board of Trustees of Southern Illinois University et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 29, 1988.

      Order filed May 17, 1988.

    Denise E. Gale, for Claimant Board of Trustees of Southern Illinois University.
    F. Anne Zemek, for Claimant Board of Trustees of Community College District 508.
    Mitchell, Russell & Kelly (Ronald K. Szopa, of counsel), for Claimant DePaul University.
    Donna Enders, Cara A. Bocian, Javier D. Braithwaite, Jacqueline Thomas, Eureka College, Emanuel Martinez, Donald H. Moon, and Tahiti P. Weaver, pro se, for Claimants.

      Neil F. Hartigan, Attorney General, for Respondent.
   OPINION

Montana, C.J.

These Claimants brought claims seeking tuition payments. Each filed a standard “lapsed appropriation” form complaint alleging that demand for payment was made to the Illinois State Scholarship Commission (hereinafter referred to as the ISSC), but the demand was refused on the grounds that the funds appropriated for the payments had lapsed. All of these claims are against fiscal year 1984 appropriations.

These claims come on to be heard following our decision in Aurora College v. State (1985), 37 Ill. Ct. Cl. 321 and Roosevelt University v. State (1987), 39 Ill. Ct. Cl. 161. We begin here where the latter opinion left off. In that decision we ordered the ISSC to re-examine its records to determine if it had received more refunds from the FY 84 001-69131-4475-0100 line item appropriation and to notify us if so and we would reconsider our decision. The ISSC has notified the Court that an additional $34,006.29 in refunds is available. We will now consider the claims in the order in which they were filed.

Southern Illinois University in claim number 85-CC-1151 had sought, and the Respondent had agreed to, an award of $23,937.13. We previously awarded $22,934.95 leaving a balance of $1,002.18. We hereby enter an award in claim number 85-CC-1151 in the amount of $1,002.18. This award leaves a balance available of $33,004.11.

Next in time was the Board of Trustees of Community College District 508 with claim number 85-CC-1295. It sought and was entitled to $286.00. We hereby award $286.00 in claim number 85-CC-1295. This award leaves a balance of $32,718.11.

Donna Enders’ claim, number 85-CC-1442, was next. She sought and was apparently entitled to $225.00. We hereby enter an award for $225.00 in her claim, leaving a balance of $32,493.11.

Cara Bocian filed the following claim, number 85-CC-1637. She sought $2,200.00. As stated in the May 20, 1987, decision, her previously not having been paid was due to an incorrect social security number problem and she did not appear on a roster for which the school could ask payment. Having examined the departmental report compiled by the ISSC, we find she is entitled to, and we hereby enter, an award of $2,200.00. This award leaves an unexpended balance of $30,293.11.

Javier Braithwaite, claim number 85-CC-1642, was next. Mr. Braithwaite had previously been paid for halftime status but the ISSC report indicates that he was entitled to be paid for full-time status or an additional $190.00. We hereby enter an award in claim number 85-CC-1642 in the amount of $190.00. Payment of this award would leave an unspent balance of $30,103.11.

Next in time was claim number 85-CC-1711 filed by Jacqueline Thomas. As confirmed by the ISSC report on file, she is entitled to, and we hereby award her, the sum of $382.04. The unawarded balance is now $29,721.07.

DePaul University filed the following claim, number 85-CC-1894. It sought $12,258.61 but the ISSC only approved $11,525.28. There is nothing in the record to explain the difference. We hereby award DePaul University the undisputed amount, $11,525.28. Because sufficient money will be left over at the conclusion of this opinion, we will consider an award of the disputed amount if the Claimant raises an objection within 30 days of the date this decision is filed. This award leaves a balance of $18,195.79.

Eureka College’s claim was not addressed in the previous decision due to an oversight but had filed claim number 85-CC-2265 next in time. Eureka College’s claim was denied on June 22,1987, for lack of lapsed funds. Its claim was originally filed for $5,525.00 but the parties stipulated that only $5,435.00 was owing. We hereby award Eureka College $5,435.00 leaving a balance of $12,760.79.

Next was claim number 86-CC-1148 filed by Emanuel Martinez. He sought $1,022.00. We are unable to determine from the record whether he is entitled to an award. Again, because there will be sufficient funds remaining at the conclusion of this opinion we will reconsider this claim. Respondent is hereby ordered to supplement its report indicating its position as to whether the Claimant is entitled to an award.

Donald H. Moon, claim number 87-CC-0985 sought an award of $205.00 which amount is supported by the record. We hereby enter an award of $205.00 in claim number 87-CC-0985. This award leaves a balance of $12,555.79.

The Board of Trustees of Community College District 508 filed its third claim, number 87-CC-1141, next in time. It sought, and the record supports, an award of $286.00. We hereby award $286.00 in claim number 87-CC-1141, leaving a balance of $12,269.79.

Last in time was claim number 87-CC-2902 filed by Tahiti P. Weaver. Like Eureka College, her claim was not addressed in the previous decision because we did not have actual knowledge of it being on file. The record supports her claim for $410.00 and we hereby enter an award in that amount.

$11,859.79 remains for any unknown claims.

ORDER

Montana, C.J.

This cause comes on to be heard following the Respondent’s response to our order dated February 29, 1988;

The court hereby finds after considering the Respondent’s supplement to its previously filed report that the Claimant is entitled to an award in the amount of $1,022.00. After making said award, the sum of $10,837.79 remains for any unknown claims.

It is hereby ordered that the Claimant be, and hereby is, awarded $1,022.00.


text:
    (No. 85-CC-1180
    Ronald Belleisle, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 9, 1988.

    Ronald Belleisle, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Karin Kepler and Erin O’Connell, Assistant Attorneys General, of counsel), for Respondent.
   Patchett, J.

This is a claim which is a result of an accident that occurred at the Graham Correctional Center on September 27, 1984. A hearing was held in this matter before a Commissioner of this Court on May 11,1987, in Chicago, Illinois. The Claimant appeared pro se, and the Respondent was represented by the Attorney General’s office.

The Claimant testified under oath that he had a job working in the kitchen on the day in question. The job required him to unload pots and pans after meals, place them on a cart, and push the cart to another location. While pushing the cart, a wheel on the cart collapsed or came out when the leg of the cart hit a drain hole. As a result of this, the Claimant’s arm became caught under the table, resulting in his arm being pulled on by the cart. At the hearing, the Claimant displayed a ripped muscle in his arm which was readily observable. The Claimant did receive medical treatment for his injury, including five days of light duty recommended by the physician at the institution. The Respondent’s case consisted of entering reports and a photo of the table in question into evidence. The Respondent put on no testimony.

It is clear that the Claimant suffered an injury as a result of an accident that occurred while he was working in the institution. The uncontradicted evidence before the Court is that this injury resulted from a table wheel breaking or falling off. However, the Claimant failed to prove by a preponderance of the evidence that the State had breached any duty with regard to his safety. From the evidence it appears that the reason for the mishap was that the Claimant pushed the cart with which he was working into a drainage hole. This is not the fault of the State.

For this reason, this claim is hereby denied.


author: Sommer, J.

text:
    (No. 85-CC-1606
    Jimmie C. Peters, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 19, 1987.

    Jimmie C. Peters, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

Claimant is an inmate at Menard Correctional Center in Chester, Illinois. This case was filed January 1985, and prays for money damages in the sum of $100,000 on the basis of Respondent’s alleged failure to treat or give proper medical attention to Claimant’s “slipped disk.”

An exhaustive review of the departmental report pursuant to Rule 14 is unnecessary. It appears that Claimant has received substantial medical treatment at the Menard Correctional Center extending from July 4, 1984, through the time of the hearing in the case. This treatment includes contact with numerous physicians including neurologists and hospitalization. Claimant offered no evidence whatsoever that the substantial medical treatment revealed by the departmental report was in any way inadequate or negligently administered. The proof at hearing in this case consisted entirely of Claimant’s unsupported conclusions that he had not received adequate or satisfactory care at the hands of the various physicians to whom he had been referred by Respondent.

This Court has repeatedly held that the Respondent has a duty of care with respect to proper health treatment of inmates in the custody of the Illinois Department of Corrections. (Witte v. State, 21 Ill. Ct. Cl. 173; Davidson v. State, 35 Ill. Ct. Cl. 825.) The State must exercise ordinary and reasonable care for the preservation of a prisoner’s health and life under the circumstances of the particular case. (Woods v. State (1985), 38 Ill. Ct. Cl. 9.) Whether or not the State has failed to act in accordance with the standard of ordinary and reasonable care for the preservation of a prisoner’s health is a question of fact. Desort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703, 342 N.E.2d 468.

In this case, there is nothing in the record to indicate that inadequate medical care had been afforded to the Claimant, other than Claimant’s own conclusions and complaints. No expert testimony was offered or elicited to show that the symptoms from which Claimant suffers could or should have been differently treated than the treatment that was in fact afforded. The Court may not conclude on its own what is or is not appropriate medical care under the circumstances of this case without the aid of expert testimony. See Woods v. State (1985), 38 Ill. Ct. Cl. 9.

It is the opinion of this Court that the Claimant, having failed to meet the burden of proof required, is not entitled to an award.


text:
    (No. 85-CC-1713
    Willie Williams, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 6, 1988.

    Willie Williams, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant, an inmate in the penal system for the State of Illinois seeks recovery for his personal property which he claims was lost or converted by Respondent.

Claimant states that while a resident of the Menard Facility at Chester, Illinois, he was transferred, on or about the 23rd of February, 1984, to the Federal District Court in Chicago. At the time of this trip, his personal property was inventoried by Respondent and preserved in the personal property office. Claimant alleges that upon his return to Menard on March 7, 1984, Claimant claims that while in Cook County he was wearing personal jewelry consisting of two rings and a watch which were taken from him by “prison’s officials” on or about March 1, 1984, when being transferred from the Federal facility in Chicago to the Joliet Correctional Center in preparation for his return to Menard.

Claimant alleges that his two rings and a watch were transported back to the Menard facility from the Joliet Correctional Center but were “misplaced” by Menard officials. Claimant sets the value of his lost personal property including the two rings and the watch at $1,900.00.

Claimant presented an institutional grievance to the Administrative Review Board at Menard on April 18, 1984. The minutes of the Administrative Review Board meeting contained the following:

“Findings: With regard to the personal property issue, the inmate stated that on February 24,1984, he was taken to Chicago on Writ status. He stated that, at that time, his personal property was inventoried and he received receipts for same. He stated he believes the property was placed in the personal property office. He stated he returned to the Menard Correctional Center on March 7,1984. At that time, Officer Ticer indicated he refused to inventory the personal property due to the amount involved. The inmate stated he was then forced to sign the personal property inventory sheet and took his property to his cell. He stated he determined his television set, his radio, a pair of shoes, and two pair of jeans and jean jackets were missing from his personal property. The inmate stated he has since received his television set. The inmate estimated the remaining personal property at a value of approximately $150.00.
On February 28, 1984, the inmate stated he was taken from a federal institution in Chicago to the Joliet Reception and Classification Center. He stated that, at that time, his watch and two rings were confiscated. He stated the property was transferred with him to the Menard Correctional Center. He stated he has recently been advised by the Menard Administration that the property in question is now missing. He stated that both rings contained diamonds and that the watch was a Timex Quartz. The inmate is also requesting copies of receipts for his personal property.”

Claimant states that his watch was later returned but was broken.

Respondent’s exhibit No. 1 was the resident personal property inventory record showing a packing date of 2-23-84. Aside from the two rings and the watch claimed to have been misplaced by Respondent, Claimant lists the following property as having been converted or lost, to-wit:

1. 196 albums at $6.98 each

2. Radio, $59.00

3. One pair of shoes, $39.00

4. Two blue suits, $74.00

The inventory record of 2-23-84 is signed by Claimant immediately under the following printed declaration:

“I hereby certify that the personal property sheets I am signing contain a true and complete listing of my personal property.”

The personal property inventory lists the number of “records” of the Claimant at six (6), no suits, no rings, no wristwatch and no radio.

A resident personal property inventory record dated 3-6-84 identified as Plaintiff’s exhibit No. 2 and allegedly prepared at Joliet Correctional Center listed Williams with two rings and a wristwatch number 73359, under the heading “permit items.”

With respect to Respondent’s exhibit No. 1 Williams stated, “I admit that the items incorporated in the personal property receipts are some of the items that belong to me.” With respect to Plaintiff’s exhibit No. 2, Respondent admitted that the inventory record apparently prepared at Joliet was questioned as to authenticity but admitted that the inventory record was in Claimant’s personal property file.

Upon his return to Menard, Claimant alleged that a correctional officer named “Ticer” informed him that Ticer had discovered that two rings and a watch on the Joliet inventory were missing. Williams testified that he gave Ticer the receipt showing the value of the rings and the watch. Ticer was, at the time of the hearing in this case, no longer an employee of the Department of Corrections. An adjustment committee summary identified as Respondent’s exhibit No. 3 revealed that Officer Ticer testified on 9-14-84 before the adjustment committee that “he didn’t have any knowledge about Williams’ rings.” Ticer apparently denied ever having copies of receipts from Williams (see Respondent’s exhibit No. 3). Williams testified that his recollection was to the effect that each of the rings was of a value of $800.00. Williams testified that he gave the receipts showing the valuation of the rings to Ticer without having first made copies of them. Williams testified that reproduction or copying facilities were available to inmates at Menard Correctional Center. Williams stated he did this because he “was under the assumption that arrangements would be made to compensate (me) on a departmental level.” Williams said he had turned the receipts over to Ticer because Williams felt this “tangible evidence” turned over to the correctional officer would be sufficient enough to substantiate the cost of the rings.

Williams testified that the original inventory at Menard identified as Respondent’s exhibit No. 1 “did not accurately inventory that property.” Williams testified that with respect to his watch and rings, he was allowed to keep them at Joliet until he left to be transferred to Menard. The rings and watch were taken from him March 7,1984.

Williams testified that he had filed a substantial number of lawsuits against the State of Illinois in the Federal courts during the last 10 years. Many of those lawsuits complained about prison employees violating administrative regulations and administrative directives.

With respect to the 196 record albums, Williams testified that these 196 albums were acquired in a two-to-three month period of time prior to February 23, 1984, when Williams was taken to Cook County on a writ. Williams testified that he did not remember who boxed the 196 albums up. Williams testified with respect to an administrative review hearing in January of 1984, several months before the operative events set forth in the present claim, that he had claimed the loss or confiscation of 196 record albums. Williams had difficulty remembering his testimony or the facts concerning that administrative review hearing.

As in all cases, we are called upon to judge the credibility of witnesses. Impeachment can consist of many factors including observations of the demeanor and sincerity of witnesses, contradictions in testimony and the believability of the witness’ testimony as a whole, taking into account the witness’ past experiences, ability to recollect and many other factors. In the case at bar there are substantial indications that Claimant is not believable. For example, Claimant’s memory regarding certain incidents and events germane to the present claim was detailed and flawless; Claimant’s memory failed him when questioned about matters that occurred before and after the scenario out of which the present claim arose that were material subjects of cross-examination. Claimant was guarded and furtive in the delivery of his testimony. Many of the Claimant’s “tactics” in connection with the present case showed a high sensitivity to questions of the availability of documentary evidence and records; yet, Claimant says that he parted with the only real evidence of value as to his jewelry and watches on a trusting assumption that a single correctional officer’s possession of those documents would suffice to cause the State of Illinois to remit over $1,600.00 to Claimant for his jewelry.

All in all, Claimant’s case rests, in the last analysis, on the credibility of his testimony. We find Claimant’s testimony to be incredible, and insufficient upon which to base an award in this case.

It is therefore ordered, adjudged and decreed that the Claimant’s claim is denied.


author: Raucci, J. Raucci, J.

text:
    (No. 85-CC-1868
    Ellis Hunt, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 1, 1986.

      Order on denial of rehearing filed August 25, 1987.

    Ellis Hunt, pro se, for Claimant.

      Neil F. Hartigan, Attorney General (Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

In this case Claimant, Ellis Hunt, age 49, an inmate at Menard Correctional Center, seeks damages from the State for injuries received by him on January 12, 1985, when he was attacked by another inmate and struck on the head twice with a broom handle.

On the date and time of the incident in question, the following facts have been admitted by Respondent pursuant to Claimant’s “Request to Admit”:

1. Cellhouse rules and regulations required the security staff to supervise all inmate movement at the prison.

2. A Protective Custody Unit existed at the prison for the purpose of protecting inmates from other inmates.

3. Members of the security staff were required to check all cell doors when inmates were moving to and from their cells for the purpose of making certain that all doors were secure.

4. Respondent’s agents were required to take appropriate steps to provide security for inmates assigned to the Protective Custody Unit at the prison.

5. Regulations of the prison require that Respondent’s agents protect inmates assigned to the Protective Custody Unit.

6. Claimant was assigned to the Protective Custody Unit because Respondent’s agents had determined that Claimant was in need of protection from other inmates.

On the date in question, Claimant was attacked by inmate Johnny Brown around 7:15 to 7:30 p.m. Claimant was taking lifer food orders, which is his job at the prison.

Prior to the date of the attack, Claimant’s antagonist had threatened Claimant. Claimant reported this to a guard. The guard warned Claimant not to be present on the gallery through feeding time or movie time. Claimant testified that he followed this admonition and went to the gallery at 7:15-7:30 p.m. taking lifer orders. Claimant testified that his antagonist was out of his cell without explanation and walked up to Claimant and struck him in the head with a broom.

Claimant sustained lacerations on his head, which were sutured. The lacerations healed satisfactorily. Claimant claims that the head lacerations caused him to have blood pressure problems.

Respondent argues that the State is not an insurer of the safety of inmates under its control. (Dorsey v. State (1977), 32 Ill. Ct. Cl. 449, 453.) In the case at bar, the uncontradicted evidence demonstrates that Claimant advised the agent of the State shortly before he was injured of the threat posed to him by prisoner Johnny Brown.

Second, the State argues that Claimant’s injury was a result of his own fault and negligence. The evidence in this case establishes that Claimant followed Respondent’s suggestion to remain off the gallery in question while prisoners were going to and from meals and movies. The presence of Claimant’s antagonist on the gallery at the particular time the Claimant was attacked was unexplained and, according to the uncontradicted evidence, in violation of administrative rules and regulations.

There is no question that Claimant sustained serious head lacerations, which caused him considerable pain and discomfort. Medical records submitted by Respondent subsequent to the hearing in response to Claimant’s motion to produce do not permit the conclusion that Claimant’s blood pressure problem is in any way related to the lacerations sustained on his scalp as a result of the attack by inmate Johnny Brown.

It is therefore ordered, adjudged and decreed that Claimant is awarded $750.00 in full and complete satisfaction of this claim.

ORDER ON DENIAL OF REHEARING

Raucci, J.

This Court, having considered Respondent’s petition for rehearing, Claimant’s response thereto and being fully advised in the premises, finds:

1. Respondent maintains that it was not served with the Claimant’s “Request to Admit” which was filed on March 6,1985.

2. Reading the record, we can see how confusion could have occurred. However, the Commissioner specifically called to the Attorney General’s attention the existence of the “Request to Admit.” See the transcript of proceedings for December 2,1985, at page 21, where the Commissioner Rath discussed the request as “consisting of ten paragraphs.” The Assistant Attorney General then asked to see the document.

3. Additionally, to this date, no response or denial to the “Request to Admit” has been filed.

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


text:
    (No. 85-CC-2244
    Charles Martin, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1987.

      Order filed November 2, 1987.

      Order filed April 28, 2988.
    Charles Martin, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This is a claim brought by Claimant, Charles Martin, now a resident of Dixon Correctional Center, for personal injuries sustained while he was a resident of Logan Correctional Center, for alleged lack of medical attention after the incident, and for wrongful transfer from Logan Correctional Center to Menard Correctional Center.

The record demonstrates that the medical authorities at Logan Correctional Center considered Claimant to be mentally ill. However correct this diagnosis may have been, it has no bearing on certain aspects of Claimant’s claim. Claimant has filed numerous pleadings in this case, some of them somewhat unintelligible. He filed a related action in the Federal District Court for the Central District of Illinois which was dismissed by order of that court entered on January 24, 1985, which found that Claimant’s grievances were not actionable under 42 U.S.C. 1983, but possibly could be heard in a State court.

Claimant makes essentially, four allegations of wrongdoing on the part of the Respondent:

A. That on April 13, 1984, at Logan Correctional Center, Captain Hockaday, while “under the influence of liquor or dope,” deliberately slammed a heavy door on Claimant, knocking him to the floor and causing him to break a rib.

B. That the officer on duty refused to let Claimant have emergency medical care.

C. “Dr. Trapp, 4/16/84, deliberately made out a medical report that nothing was broken, and no serious injury present. No treatment was given for broken rib.”

D. “Dr. Capler who received this report and in spite of my continued complaint of hard breathing with pain in chest and unable to sleep, treated my problem as mental hallucinations and prescription for mental disorder, had me shipped to Menard Mental Center, being assisted by Dr. Levie, 4/16/84 & 4/17/84.”

While Claimant has filed a variety of pleadings, the allegations appearing throughout are basically as set forth above, except that in a pleading filed on July 19, 1985, Claimant alleges various acts of misconduct on the part of prison officials at Menard after he was transferred to Menard.

Claimant’s testimony was that on April 13, 1984, at about two o’clock in the afternoon he was standing in the doorway of a recreation room at Logan Correctional Center talking to Captain Hockaday concerning some items of Claimant’s personal property alleged by Claimant to have been misplaced or stolen in the receiving department.

The officer was standing in the hallway outside the recreation room. The doorway was fitted with a heavy, solid steel door which opened inwards into the recreation room and was open at the time. The officer, apparently wishing to terminate the conversation and without asking Claimant to move or otherwise warn him of his intentions, pulled the door shut while Claimant was still standing in the doorway. The force of being hit by the door knocked Claimant over and into a large ash stand causing him to break his right eighth rib. Claimant testified that the officer’s speech was slurred.

Claimant was in pain from the blow and asked the officer in charge of the recreation room for medical attention. But the officer told him it was too late and that he could go to sick call in the morning.

The record contains photocopies of the affidavits of two inmates — James Johnson and Bellamy — corroborating Claimant’s account of the incident. The record also contains a radiological report dated 4/16/84 (typed 4/ 19/84) showing a fracture of the right eighth rib.

A photocopy of a resident injury report, signed by C. Glenn, R.N., and made part of the record, shows that Claimant appeared at sick call at 7:30 a.m. on April 14, 1984, alleging that Captain Hockaday had closed a steel door on his right chest and right elbow, and that he was not allowed to see a nurse. The nurse found no marks, bruises, or swellings and full range of motion of all extremities, and did not recommend any treatment.

Officer Hockaday and Officer Merreighn (the officer in charge of the recreation room) thereupon filed disciplinary charges against Claimant alleging that the incident never occurred and Claimant was placed in segregation.

Claimant’s medical progress notes show that on April 15, 1984, medical personnel visited Claimant in segregation and although Claimant complained that he was hurting terribly no injuries were noted.

On April 16, 1984, he was seen in the clinic by Dr. Trapp. His medical note is reproduced below:

“4/16/84
M.D. NOTE
O: Is examined this morning with a complaint of pain in the right chest and some slight pain of the right elbow following an injury in which a door was slammed on him he states. The pain in the elbow is almost all gone he states. He states the pain in the ribs is very minimal although a deep breath seems to cause him some distress.
P: W/U Rib cage
Rx X-Rays. Not that I think anything is broken, but in case of any medical/legal problem. No additional treatment is recommended,
Examination reveals there is no tenderness and there is complete ROM and normal sensation in the entire right arm.
The rib cage may be minimally sore; lungs sound clear throughout. Pressure on the ribs cause minimal distress.
A: Minimal contusion of the right chest.
Robert N. Trapp, M.D./bmm”

The X ray taken April 16,1984 on Dr. Trapp’s order showed that Claimant’s right eighth rib was in fact broken.

The preponderance of the evidence is that Captain Hockaday wilfully or at least negligently did in fact slam the door on Claimant causing Claimant to suffer a broken right rib, and that the officer in charge of the recreation room refused to let Claimant have medical attention. It is also the preponderance of the evidence that Claimant was wrongfully put in segregation on the basis of the false disciplinary reports filed against him by Officers Hockaday and Merreighn denying that the incident occurred.

It is further true that in effect he at no time received treatment for his broken rib, even though he was complaining of pain, because there appeared to be no visible exterior indication of an injury.

On the state of the record we cannot draw the conclusion that the sole reason Claimant was transferred from Logan to Menard was because the medical personnel at Logan misdiagnosed his condition as mental. The doctor’s note of April 17, 1984, would indicate that Claimant did in fact have severe psychological problems. The mishandling of the April 13,1984, incident followed by Claimant being wrongfully put in segregation probably did not help his mental condition.

Because Claimant received no medical treatment for his broken rib he suffered two or three days of pain. While in segregation he tied his belt around his rib cage to alleviate the pain (Tr. 17, 19). By the time he was taken out of segregation and transferred to Menard the pain had stopped.

Considering the physical injury wrongfully inflicted upon Claimant, the refusal of the officer in charge of the recreation room to let him have emergency medical treatment, the failure to treat the broken rib, the pain and suffering he endured, we award Claimant $750.00.

It is therefore ordered, adjudged and decreed that Claimant be awarded $750.00 in full and complete satisfaction of this claim.

ORDER

Raucci, J.

This cause coming on to be heard on Claimant’s “Written Request or Notice of New Trial (Appeal),” the Court having examined all the documents filed by Claimant and having reviewed the record, and being fully advised in the premises,

It is ordered that the “Written Request or Notice of New Trial (Appeal)” is denied.

ORDER

Raucci, J.

This cause coming on to be heard on the Claimant’s “Appeal” and the Court being fully advised in the premises finds that we have previously denied Claimant’s request for a new trial or appeal, it is hereby ordered that the Claimant’s appeal is denied. The Clerk is directed to not accept any further post-trial motions in this case.


text:
    (No. 85-CC-2261
    Harley L. Nichols, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 13, 1987.

    Harley L. Nichols, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

On July 19, 1983, Claimant was a resident of the Illinois Department of Corrections at Pontiac Correctional Center. On that date, he was preparing to be transferred to Menard Correctional Center. Claimant had assembled and packed all of his personal property in his cell.

Claimant alleges that on that date, he went to the dining room of the Pontiac Correctional Center for his breakfast and left his personal property in his cell. He also claimed that he checked the cell door and it was locked when he left it. The Claimant further alleged that when he returned from his breakfast to his cell, he discovered his television set, converter box, and a fan were missing. Attached to the Claimant’s complaint was his personal property permit from Pontiac Correctional Center for his television set and converter.

Claimant alleges that his color television set was worth $285.97, his converter box was worth $43.96, and his fan was worth $35.00.

At the hearing held in this case, the Claimant testified that he had routinely gone to breakfast on the morning of July 19, 1983, and when he returned his property was missing. Claimant went to the guards and told them his property was missing. However, the officer in charge denied that Claimant reported the property missing at an administrative review hearing.

On cross-examination by Respondent, Claimant stated that his cell was locked. He further stated that in order to enter the cell an officer has to unlock the door.

Basically, Claimant’s theory is in the nature of res ipsa loquitur. The Court has not recognized this legal theory as a basis for awards in prisoner personal property cases. The Court has held that in cases of staff negligence, when affirmatively shown, an award can be made. In this case, no such showing of staff negligence has been made. The Court has also held that where a bailment is shown by a preponderance of the evidence and Respondent cannot show evidence showing due care, then an award may be made. In this case, the Court has not seen evidence of a bailment. For those reasons, we hereby deny this claim.


text:
    (No. 85-CC-3069
    Karen Munster, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 23, 1988.

    Horwitz, Horwitz & Associates (John Kovac, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Karin L. Kepler and Erin M. O’Connell, Assistant Attorneys General, of counsel), for Respondent.
   Burke, J.

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

Finds that on September 20, 1983, Claimant, Karen Munster drove to the Secretary of State driver’s license facility in Bradley, Illinois. Claimant’s son, Timothy, and her mother-in-law, Emma Munster, accompanied her.

Claimant arrived at the driver’s license facility at approximately 3:45 p.m. It was either raining or had just finished raining. Claimant exited her automobile and proceeded to the door of the facility which opened outwards. When she opened the door, she stepped onto a mat which moved, causing Claimant to fall and break her leg. Claimant’s mother-in-law saw Claimant fall and with her grandson went into the facility. Upon entering the facility the grandson fell, the Claimant catching him.

Mr. Thompson, supervisor of the State facility stated it rained all day and the first time he saw Claimant, she was in a sitting position on the floor.

Emma Munster looked down at the floor and saw a puddle of water inside the doors approximately four or five inches inside the door. It was about the size of a dinner plate. There were cracks in the floor and a slope which created a spot for water to gather. Employees from the facility assisted Claimant up. Claimant got her driver’s license and later drove to Sears. While at Sears, the leg pain became so unbearable, Claimant’s mother-in-law took Claimant to St. Mary’s Hospital. Claimant saw Dr. Lange and Dr. Renchler, an orthopedic physician, who provided a report.

It is clear that the tile inside the facility had been there for some time and a depression existed allowing water to collect. The Secretary of State employees kept a mop in the vestibule area on days which it rained, which suggests there were problems with water accumulating in that location. To allow this condition to exist is a violation of the duty of reasonable care that the State owes in maintaining its premises in a reasonably safe condition. Hanby v. State (1976), 31 Ill. Ct. Cl. 487.

Damages consist of the broken bone Claimant suffered during the fall, pain, suffering, disability, medical bills and the issue of economic loss, a result of her disability.

Claimant’s injury consisted of a nondisplaced fracture of the patella which was accompanied by patellar chrondromalcia and atrophy. The chrondromalcia is evidence of permanent changes in her knee joint.

Claimant’s claim regarding loss of her business investment is less clear. It was not proven that Claimant’s closing her business was proximately caused by the injuries suffered. Other people including her partner were able to perform her functions. No evidence was presented as to the decline of business immediately following the incident at the State facility.

Ordered that Claimant is awarded ten thousand ($10,000.00) dollars for pain, suffering and disability and one thousand thirty four dollars and thirty five cents ($1,034.35) for medical bills, said award being in full and complete satisfaction of Claimant’s complaint.


author: POCH, J.

text:
    (No. 86-CC-0062
    George Hammer, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 30, 1987.

    Gregory H. Clark, for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This is a claim by George Hammer, an inmate of the Graham Correctional Institution in Hillsboro, Illinois, for injuries he sustained on May 11, 1984, while performing his duties in the kitchen. On the date of the accident, the Claimant was a cook and had been a cook for six months at Graham. During the early evening of May 11, 1984, the Claimant slipped and fell on an excess amount of water on the kitchen floor and suffered a second-degree burn on his right ankle. According to the testimony, the burn either resulted from the hot water on the floor or from direct contact with a cooking pot.

There is clearly no dispute that the Claimant slipped and fell on water that appeared on the floor of the kitchen and suffered a burn on his ankle as a result of that fall. The question is simply one of liability for the fall and the resultant injury.

The Claimant described in detail the floor plan of the kitchen. He specifically described the center working area where there are large cooking pots, steam heated (connected by necessary steam pipes), along with fryers and large coffee pots. The center area is surrounded by a drain approximately one foot wide and one foot deep covered by grating. The cooking pots are four feet by three feet in diameter. They are round and do not have lids. The pots are filled with steam and water during the cooking process and are drained by a “clean up detail” by turning a spigot located some six inches from the bottom of the pot from which the water exits directly into the drain. The only other way to drain the pot is to use a crank and turn it upside down. According to the Claimant, when the pot is drained by using either method, water spills over the floor beyond the drain.

On the night of the incident in question, one of the cooking pots had been turned upside down in order to be drained quickly, a normal process according to the Claimant. The resultant greasy water on the floor caused the Claimant to slip and burn his ankle. The State owes a duty to inmates of its penal institutions to provide them with safe conditions under which to perform their assigned work. (Reddock v. State, 32 Ill. Ct. Cl. 611; West v. State, 31 Ill. Ct. Cl. 340. See also Spears v. State, 37 Ill. Ct. Cl. 164; Burns v. State, 35 Ill. Ct. Cl. 782.) In the instant case, the Court finds that the State breached its duty to provide such a safe work area. As in other cases, the Court notes that prisoners and inmates ordinarily do not possess the freedom of choice inherent in doctrines of assumed risk and contributory negligence. Furthermore, the record does not contain any evidence of the same. Reddock v. State, 32 Ill. Ct. Cl. 611.

On the night of the injury, the Claimant went to the infirmary where the burn was treated with salve and bandage. He was instructed by the nurse not to go back to work. During two subsequent treatments in the prison infirmary, the burn was also bandaged.

Within five weeks of the accident, the Claimant was transferred to East Moline, Illinois, where he began work as a prison painter. Subsequent medical records introduced by the Claimant indicate that he sustained a two-to-three centimeter scar on his right ankle as a result of the burn. Touch, circulation and sensations are all normal and he has a full range of motion. Subjectively, he does continue to complain of pain and sensitivity in the area of the right ankle. It was described as “an injury of irritation.”

It is therefore ordered that Claimant be, and hereby is, awarded the sum of sixteen hundred and fifty dollars ($1,650.00).


text:
    (No. 86-CC-0162
    Evelyn Claiborne and Gwendolyn Ferguson, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 20, 1987.

    Evelyn Claiborne and Gwendolyn Ferguson, pro se, for Claimants.
    Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimants Evelyn Claiborne and Gwendolyn Ferguson were incarcerated at Dwight Correctional Center. Ferguson arrived there in 1979; Claiborne arrived there in 1980. In 1981, a new vocational training program was created for the inmates at Dwight. The program provided for apprenticeships in various types of jobs. Both of the Claimants signed certain documents entitled “Apprenticeship Agreement,” wherein the trade they had selected to study was specified. They signed the documents voluntarily and did not pay any fees to enter or apply for the programs. Ferguson began her training in 1981, and became dissatisfied with it in 1983. Claiborne began her training in 1982, and became dissatisfied with it in 1985.

Sometime subsequent to the commencement of the training program, each of the Claimants became dissatisfied with the progress being made. In substance, they alleged that:

1. Claimants should have received certificates of completion sooner than they did;

2. The program was not Federally accredited;

3. The programs are not accepted by local trade unions;

4. The instructors in the program were not qualified; and

5. Participation in the program caused each of the Claimants physical injuries.

Each of the Claimants bases her claim on the theory of breach of contract and fraudulent misrepresentation. The apprenticeship agreement executed by each of the Claimants does not meet the requirements of a contract since neither party to said agreement promised to do anything. Therefore, the agreement did not impose a legal obligation of performance.

It is a well accepted principle of law that a contract must be supported by adequate consideration moving in the direction of each of the parties to the agreement. (Lipkin v. Koren (1946), 392 Ill. 400.) In the instant cases, no such consideration passed to the State of Illinois. The program was provided without cost to the Claimants and was for the sole purpose of enhancing the skills and abilities of the participants, however slight such enhancement may be. There was no guarantee by the Respondent of successful completion, nor of recognition by unions or of employment for the participants.

Claimants did not have a cause of action for breach of contract against the State of Illinois. The allegations that each of them suffered physical injuries as a result of participation in the program is not even remotely supported by the evidence.

It is therefore ordered, adjudged and decreed that the claims are dismissed, with prejudice.


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    (No. 86-CC-0203
    Rodney J. Guffey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 4, 1987.

    Knuppel, Grosboll, Becker & Tice, for Claimant.
    Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

This cause comes on for hearing on a complaint for loss of income due to an accident involving Claimant’s truck. There does not appear to be a great deal of dispute as to the facts. All vehicles involved were traveling southbound on 1-55 near the 100-mile marker. At this location the wide shoulder on the right converges with the right-hand lane as the roadway reaches the overpass. At the overpass, the shoulder ceases to exist, and there are only two lanes with guardrails on either side.

On June 20, 1984, at approximately 8:30 a.m., the State of Illinois had a State maintenance truck located on the shoulder, traveling at approximately five miles per hour spraying weeds along the base of the overpass. The spray truck pulled into the right lane of traffic at the expiration of the shoulder at a time when two large semitrailer trucks were in both lanes. Since neither truck could go anywhere, they braked. The Claimant who was behind the two trucks apparently was checking his rear-view mirror to follow the truck in the passing lane. At that moment he looked up, and it was too late to avoid colliding with the trucks in front. Claimant stated that about /2 to /4 of a mile before the accident he saw the State truck on the shoulder. From then on the truck trailers ahead of him blocked his view of the State truck.

The driver of the State truck stated that he checked his rear-view mirror before pulling into the right lane and saw trucks approximately one mile back. He further stated he assumed they were going to move into the passing lane, as one appeared to be doing so. He also acknowledged that he knew “they could come up on you pretty quick.”

The State truck driver had a duty to watch for and to yield to the traffic on the highway. (Ill. Rev. Stat., ch. 95M, par. 11 — 906.) That duty was breached when the State truck driver failed to see properly the three trucks and entered the highway in front of them. The State truck driver’s entering the highway so as to interfere with the progress of the three trucks was the proximate cause of the accident. The present case can be distinguished from Harris v. State (1986), 39 Ill. Ct. Cl. 176, in that the lead truck in the Harris case stopped when it did not have to and was hit by the following truck. Both trucks belonged to the same owner. In this case the lead trucks had to stop suddenly as further progress would necessarily lead to a collision with the State truck, each other, or the bridge rail.

The measurement of damages in this case is difficult. First, the Claimant prays for damages for 52 working days while the Respondent argues that there is no evidence of mitigation. It would seem reasonable to the Court, and the Claimant so testified, that he had to receive his settlement from his insurer and then purchase and prepare a new truck. Neither one of these procedures could be expected to occur overnight. Thus, the Claimant could be expected to take some time to get on the road again, and the Claimant’s testimony was that it took 52 working days. Such testimony was not disputed at the hearing by the Respondent.

Testimony elicited by Commissioner Barnes was that the Claimant was paid by the load by Ron Smith, his employer or contractor. The truck carried approximately 22 tons net weight, and the Claimant was paid about $1.40 per ton per trip. This would mean about $30.80 per trip income. Unfortunately, the trips per day varied from 8 to 13, so the lost income cannot be accurately projected. However, if we assume an average of 11 trips per day, the Claimant would have an average income of $338.80 per day or $17,617.60 income before expenses. From the Claimant’s 1985 income tax form, expenses seem to run about 70% of the gross income from business, so the lost profit would be $5,285.28 approximately.

At the hearing, the Claimant attempted to prove the lost income by entering into evidence the Claimant’s 1985 income tax forms. Claimant testified that he worked exclusively for Ron Smith during that year; however, on the forms income from other trucking employers is included; only $59,880.03 comes from Ron Smith out of a total of $70,974.99. We are led to the conclusion that the profit would be 84.4% of that stated, or $24,702.03 after adding back depreciation. If the Claimant operated 50 weeks per year minus five holidays, a daily rate of $100.82 results, or $5,242.64 profit for 52 days: As the damages calculated both ways are remarkably close, the damages are establishable, and the Court will award those based on the 1985 income tax return.

The award will be reduced by 33M¡% for comparative negligence. The Claimant had a duty to drive at a reasonable and proper speed and not to follow too closely. (Ill. Rev. Stat, ch. 95/2, pars. 11 — 601, 11 — 710.) However, the Claimant could not reasonably anticipate that the State truck, which he could not see, would pull out in front of the lead truck. Nonetheless by following too closely and being ready to overtake a truck traveling 50-55 miles per hour when the speed limit was 50 miles per hour, in a narrowing section of roadway, he contributed to the accident. Therefore the Claimant is entitled to an award of $3,491.76, and it is so ordered.


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    (No. 86-CC-0246
    Melvin Williams-El, Claimant, v. The State of Illinois, Respondent.

      Order filed August 25, 1987.

    Melvin Williams-El, pro se, for Claimant.

      Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause coming on for hearing, the Court being fully advised in the premises;

The facts are stipulated. A guard unlocked and allowed an unauthorized inmate into Claimant’s cell. The Claimant reacted quickly, grabbing the inmate and reversing their positions placing himself outside the cell and locking the potential assailant within.

It is further noted that the officer falsified a report claiming an assault by the inmate. If said report had been allowed to stand, Claimant would have lost privileges and six months of good time. Claimant shows no physical injury, and the nature of his cause of action is for intentional infliction of mental distress.

Claimant testified to being afraid, nervous and upset over the incident. It may be argued that the day-today existence while being incarcerated in a maximum security prison would produce this type of anxiety. In this case, however, the agent of the State, Officer Donovan, went beyond the normal hazards of prison life. The apprehension produced, both as to physical harm and loss of privileges, is compensable.

It is therefore ordered that Claimant is awarded $250.00 in full and complete satisfaction of this claim.


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    (No. 86-CC-0735
    Kenneth Johnson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 3, 1988.

    Kenneth Johnson, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (James C. Major, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

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

Finds that on April 30, 1985, Claimant, Kenneth Johnson, was an inmate at Menard Correctional Center when he was subject to a shakedown wherein his three gold chains were taken by a correctional officer.

The departmental report indicates Officer Arbeiter confiscated three gold chains from Claimant on April 30, 1985. Two gold chains held gold hearts and one was plain. The Department of Corrections considered the property contraband and it was placed on a cart to go to the personal property office. No record reflected that the property was received. The property cart would not have been locked and was accessible to anyone in the gallery. Claimant was issued a receipt for the property.

Pursuant to Institutional Directive 05.03.111, the chains were contraband as they were not religious medals. The departmental report indicated Claimant had one gold chain when incarcerated and received two as gifts while at Pontiac. Claimant valued the chains at six hundred forty-five dollars and 0/100 ($645.00).

Where the record shows that property of a prisoner comes into the exclusive possession and control of Respondent, a bailment is created. (Wilson v. State (1982), 35 Ill. Ct. Cl. 135.) The evidence shows that Claimant’s three gold chains were confiscated by prison guards of the Respondent. The State’s argument on contraband was dispensed with in Puckneth v. State (1979), 33 Ill. Ct. Cl. 179, as the property in this case was not dangerous per se or did not present a health hazard. The three gold chains, if in fact they were contraband, were contraband by virtue of prison regulations, and the State had a duty to safeguard them. The State was negligent.

Claimant failed to establish proof as to the value of the property other than Claimant’s opinion. Pursuant to the authority in Wilson, at 137, the Court must place a value on the three gold chains. Depreciation is given consideration in determining value. Black v. State (1981), 35 Ill. Ct. Cl. 292.

It is hereby ordered that an award of one hundred dollars and 0/100 ($100.00), is hereby entered in favor of Claimant, said award being in full and complete satisfaction of Claimant’s complaint.


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    (No. 86-CC-0746
    Kenneth Johnson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 18, 1987.

    Kenneth Johnson, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

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

Finds that on March 5, 1985, Claimant, Kenneth Johnson, was to be transferred from Pontiac State Prison to Shawnee Prison, but due to a disturbance caused by Claimant he was sent to Menard. Prior to leaving Pontiac, Claimant’s personal property was inventoried by a correctional officer under the observation of Claimant. Claimant watched the officer seal the boxes. When Claimant arrived at Menard, the personal property was inventoried by another correctional officer. The following property did not arrive at Menard:

a) two pairs of jeans — purchase date unknown

b) one pair gym shoes — purchased in October

c) twenty-six packs of cigarettes — purchase date unknown

d) three combs — purchase date unknown

e) five bath towels

Claimant placed a value of $100.00 on the above property.

The State presented no evidence, but relied on the departmental report. The departmental report indicated that on March 9, 1985, Claimant signed an inmate personal property receipt stating, “I have received all of my personal property.”

This Court has held that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions. Doubling v. State (1976), 32 Ill. Ct. Cl. 1; Arles v. State (1978), 32 Ill. Ct. Cl. 193.

Claimant’s testimony shifted the burden to Respondent to prove due care. Respondent relied upon Claimant’s admission in the departmental report in which he stated, “I have received all of my personal property.” (Emphasis added.) Claimant’s admission satisfies the State’s burden of proof. (Moore v. State (1980), 34 Ill. Ct. Cl. 114.) Upon receipt of the departmental report, the burden shifted back to Claimant to go forward and overcome or at the very least explain his admission. This he failed to do.

It is therefore ordered that this claim is denied and Claimant’s complaint is dismissed with prejudice.


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    (No. 86-CC-0845
    John D. Thomas, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 19, 1987.

    John D. Thomas, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

In this case Claimant, an inmate in the custody of the Illinois Department of Corrections at Menard Correctional Center, seeks damages in the sum of $75,000.00 for bodily injuries sustained by Claimant on June 14, 1985. Claimant alleges he was taking a shower and sustained bodily injury to his right hand (middle finger) due to an unclean shower stall. An unprotected ventilation fan at the rear of the shower stall lacerated his middle finger in two places when he endeavored to protect himself from a fall caused by accumulated soap and debris on the shower floor.

Claimant testified that on June 14, 1985, he was drying off after taking a shower while residing in the East cell house. There was soap debris on the floor (T10). Claimant slipped and fell backwards and in an attempt to catch himself his hand hit the edge of a ventilator fan which lacerated the middle finger on his right hand (T10). Claimant demonstrated scars on the middle finger of his right hand (Til). Claimant was afforded medical treatment (Til). The cuts became infected (T12) but are now healed (T12, 13). Claimant has a knot on his finger that hurts painfully when hit. The finger will not bend all the way to touch the palm of Claimant’s hand (T13).

The fan involved in Claimant’s alleged injury was said to be approximately two-feet square with metal blades. The fan is designed to blow steam from the building outside of the cell house (T14). Claimant testified there was no screen covering the fan (T14). A screen was installed over the fan after Claimant’s injury (T16). Claimant’s testimony was corroborated by inmates Dennis Jones (T46), Eugene Tillman (T53), and James Simmons (T57).

Although the departmental report filed by Respondent pursuant to Rule 14 materially contradicts the evidence adduced on behalf of Claimant, the clear and substantially uniform testimony at the hearing in this cause establishes that an unprotected ventilation fan caused injury to Claimant’s right middle finger in the shower of the East cell house on the date in question. Further, it appears virtually uncontradicted that the cause of the injury was a combination of a slippery floor and an unprotected ventilation fan. The evidence adduced by the Respondent, to the effect that the fan was screened, related to points in time many months subsequent to Claimant’s injury. Furthermore, Claimant’s evidence tended to support the view that subsequent to Claimant’s injury a screen or protection was placed over the fan. Respondent’s departmental report suggests that the fan was not operative but fails to cover the period during which Claimant sustained injury.

This Court has repeatedly held that the State of Illinois owes a duty to inmates of its penal institutions to provide them with reasonably safe conditions. (Reddock v. State, 32 Ill. Ct. Cl. 611; see also LaMasters v. State, 35 Ill. Ct. Cl. 90, 92.) However, not every slip and fall injury is compensable. See LaMasters, supra.

In the case at bar, the record compels the conclusion that the State operated an exhaust fan in the shower area of the East cell house at a level where an individual attempting to dry himself could lose his balance and be injured by the fan. We are led to the conclusion that this is negligence and that this condition existed as Claimant and his witnesses testified. Respondent’s negligence was a proximate cause of the injury to the Claimant.

There can be little question that the injury to the middle finger on Claimant’s right hand is permanent. Claimant demonstrated that he was unable to close the finger so as to touch the palm of his right hand and scars were plainly visible. Claimant’s complaint that inadequate medical attention was given to the wounds that Claimant sustained is not supported by the record since there is no evidence of the standard of care required to give appropriate medical attention to wounds such as those received by Claimant in the case at bar. Yet, there is no room for doubt that Claimant sustained an injury as a direct and proximate result of the negligence of Respondent.

Accordingly, it is the opinion of this Court that the Claimant be awarded the sum of $1,500.00 to be reduced by the comparative fault of Claimant in losing his balance on a surface known by Claimant to be slippery by 50% for a net award of $750.00.


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    (No. 86-CC-1567
    Ronnie Hamilton, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 25, 1987.

    Ronnie Hamilton, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Mitchell Wilneff, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a claim brought by Claimant, Ronnie Hamilton, a resident of Stateville Correctional Center, for personal injuries sustained when struck in the face by shotgun pellets from a cartridge fired by a correctional officer.

On May 1, 1985, at about 6:30 a.m., while Claimant was about to enter dining room A for breakfast, he was hit by one or more shotgun pellets that ricocheted off the ceiling. The shot had been fired into the ceiling by Officer James Irelan as a warning shot in response to a fight, or scuffle, taking place between Officer Capeles and inmate Roberson. While Claimant was evidently hit by several pellets, his chief complaint concerns a puncture wound to the right side of his nose. A pellet became embedded there. He picked the pellet out himself, and suffers no ill effects from the incident except that it has left him with a small scar on the right side of his nose near the bridge.

An incident report prepared by Warden O’Leary summarizes the matter as follows:

“Inmate Roberson went behind the serving line and took three juices. Officer Capeles ordered the inmate to put them back, but he walked away. The officer then attempted to retrieve the juice, the inmate pushed Officer Capeles, and a fight ensued. The tower officer, J. Irelan, fired one round into the ceiling with the 12 gauge shotgun. The fighting stopped and Inmate Roberson was restrained and placed in the segregation unit * *

When the warning shot was fired, buckshot bounced off the ceiling and hit six or seven inmates, including Claimant, and an officer. The inmates, including Claimant, all received medical treatment. One man (Newsome) had a pellet embedded in the left side of his face; one man (Arnold) had an abrasion to his forehead; one man (Alexander) had a laceration to his ear; Martin had an abrasion; Cole had an abrasion to his left shoulder. Apparently Claimant is the only one who has brought an action in the Court of Claims.

Claimant basically makes two allegations:

A. Officer Irelan “negligently and carelessly fired a shotgun blast * * * in a crowded dining area, when he knew or should have known that these pellets would ricochet and cause possible harm to innocent people as happened to Claimant.”

B. “The Respondents knew prior to claimant’s injuries that the conditions for firing weapons in the dining area were unsafe and posed a potential hazard” to the health, safety and lives of the prisoners.

Officer Irelan testified that the dining room is like a wheel with the tower as the hub of the wheel. The tower has movable, glass bay windows, and an officer in the tower. The tower stands approximately 14 feet off the ground, equipped with two 12-gauge shotguns, one mini-14, 25 rounds of ammunition for the shotgun, 40 rounds for the mini-14, tear gas dispensers, a 37-millimeter gas grenade launcher, and ten rounds of tear gas for the launcher. At the time of the incident there were approximately 150 to 175 inmates in the dining room.

Officer Irelan testified that an inmate had lunged at Officer Capeles and knocked him into a wall in dining room A. Irelan gave a verbal warning to halt. The inmate and Officer Capeles scuffled and fought. Irelan believed Capeles was in danger and fired a warning shot into the ceiling. The fight stopped.

Assistant warden Salvador A. Godinez gave lucid testimony as to the policy of the institution with respect to firing warning shots in the dining room. His testimony supported the actions of Officer Irelan.

It is entirely possible to find that the situation confronting Officer Irelan did not justify firing a shotgun into a concrete ceiling only one foot above the end of the barrel of the gun in a crowded dining room. Officer Capeles was not alone. There were two officers on the floor who immediately came to his assistance, and another officer was nearby at the entrance to the dining room. None of the four officers on the floor signaled the tower for help. When asked how much time elapsed from the time he saw the fight break out until he fired the warning shot, Irelan testified: “Maybe five seconds or so.” His action seems to have been extremely hasty.

The Chief Investigator in an initial assessment prepared for the duty warden’s signature reported:

“Minor scuffle between Officer and Inmate — resulting in warning shotgun blast into ceiling — six (6) inmates suffered ricochet minor wounds. No control office notification noted.”

Officer Irelan gave disconcerting testimony that when Claimant, after having gone to medical emergency, came back to the dining hall around 7 a.m. (apparently to eat breakfast) and yelled up threats and obscenities to him he put another round in the chamber.

“When Mr. Hamilton said this, 1 put another round into the chamber, and Lieutenant Price stepped in between. I figured I’d already given a warning shot and I don’t need to be second guessed by a resident.” (Emphasis supplied.)

Under the Rules of the Illinois Department of Corrections, introduced into evidence, firing the shotgun constituted the use of “deadly force.” Officer Irelan testified that he believed Officer Capeles to be in danger and that the disturbance was serious enough so that it was necessary to fire a warning shot. Accepting Officer Irelan’s judgment in this matter his actions meet the various tests prescribed in the rules for the use of “deadly force.”

An officer in Irelan’s situation necessarily has a wide range of discretion. As an officer in the tower he was not performing a ministerial duty. He was charged with discretionary acts. The question is, did he go beyond the limits of his discretion? Even if he exercised bad judgment, this is not necessarily exceeding the limits of his discretion, or abusing his discretion. However hasty Officer Irelan may have been in firing the warning shot, his testimony makes clear that he himself thought that it was a necessary action to take. Considering the entire record, and recognizing the necessity for a wide range of discretion, it is our opinion that the officer’s conduct does not give Claimant a cause of action for negligence.

The claim should be denied.

It is therefore ordered, adjudged and decreed that this claim is dismissed, with prejudice.


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    (No. 86-CC-1693
    Arthur Anderson & Co., Claimant, v. The State of Illinois, Respondent.

      Order filed August 10, 1987.

    Arthur Anderson & Co., pro se, for Claimant.

      Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This cause comes on to be heard on the Respondent’s motion to dismiss, the various memoranda of the parties, and the Court being fully advised in the premises; Finds:

The Claimant filed this claim as a lapsed appropriation claim and has based it on “An Act to require prompt payments by the State of Illinois for goods or services” (Ill. Rev. Stat. 1981, ch. 127, par. 132.401 et seq.). Claimant seeks payments of interest which accrued on a bill for work done for the Illinois Department of Corrections. This claim is for interest on $767,653.00.

Claimant previously filed, on October 7, 1985, a $767,653.00 claim with this Court for payment of the bill which the Department of Corrections was no longer able to pay due to the lapsing of the appropriation. An award was made in that case on November 21, 1985. Arthur Anderson & Co. v. State (1985), 38 Ill. Ct. Cl. 353.

It is the Respondent’s position that the aforementioned act does not authorize interest on matters pending before this Court.

We agree with Respondent that the aforementioned act does not authorize interest on matters pending in this Court. (See O.K. Electric v. State (1984), 39 Ill. Ct. Cl. 155.) The clear purpose of the Act is to encourage prompt payments for goods and services by agencies. The agency’s ability to pay expired at the end of the 90-day period following the end of the fiscal year. There was nothing it could do after that point in time to pay its bill. If the Claimant’s position is accepted, a Claimant could then wait almost five years, the limitations period for filing a claim based on breach of contract, before filing a claim, accruing 24% per annum, and obtaining a windfall profit. All of the bills submitted were so submitted after the end of fiscal year 1985. No interest accrued pursuant to the Prompt Payment Act before the expiration of the fiscal year. After September 30, 1985, the agency was no longer empowered to voucher the payment for fiscal year 1985.

Further, the record indicates that this claim was filed on October 7, 1985, and the Respondent stipulated on October 9, 1985, to the payment. Because of the passage of the September 30 lapse date, it was necessary for action in this Court. We acted promptly, and on November 21, 1985, awarded Claimant the principal amount due. If the bills had been submitted during, rather than after fiscal year 1985, the monies could have been paid without resort to a claim in this Court. Accordingly, this action should be dismissed.

It is therefore ordered, adjudged and decreed that this cause is dismissed, with prejudice.