author: Burke, J. Burke, J.

text:
    (No. 90-CV-0901

      In re Application of Edna Elizabeth Hum

      Order filed September 14, 1990.

      Opinion filed June 1, 1992.

    Ted A. Korshak and Edna E. Hum, pro se, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher and Andrew Levine, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Burke, J.

This claim arises out of an incident that occurred on August 24, 1989. Edna Elizabeth Hum, mother of the deceased victim, Sean Eric Mooney, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on January 11, 1990, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on August 24, 1989, the victim was shot by the two alleged offenders. The incident occurred near 2154 North Hamlin, Chicago, Illinois. Police investigation revealed that at the time of the incident, the victim and a companion were attempting to purchase some marijuana from the alleged offenders. During a conversation between them, one of the alleged offenders produced a handgun and shot the victim. The alleged offenders have been apprehended and charged with first degree murder.

2. That section 80.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 80.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victim’s acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. That it appears from the investigatory report and the police report at the time of the incident, the victim and a companion were attempting to purchase illegal marijuana from the alleged offenders.

4. That the victim’s conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

5. That this claim does not meet a required condition precedent for compensation under the Act.

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

OPINION

Burke, J.

This claim arises out of an incident that occurred on August 24, 1989. Edna E. Hum, mother of the deceased victim, Sean Eric Mooney, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act. On September 14,1991, this Court entered an order denying Claimant’s claim. Edna E. Hum requested a review of this Court’s decision.

The Court based its denial pursuant to section 10.1 of the Act which states that an award shall be reduced or denied according to the extent to which the victim’s acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim. Ill. Rev. Stat. 1989, ch. 70, par. 80.1.

A hearing was conducted on this matter on September 20,1991, to give the Claimant an opportunity to present evidence in support of her claim. Claimant Edna E. Hum presented to this Court a copy of a transcript of the criminal case resulting from her son’s death entitled People v. Burgos (No. 89-19396). The transcript includes the testimony of the person who was with the victim when he was killed. Claimant testified that she did not review the transcript and no other evidence was presented.

The transcript clearly indicates that at the time of the incident the victim and a companion were attempting to purchase cannabis from the alleged offenders in violation of the laws of the State of Illinois. The victim’s companion testified at the criminal trial that the victim requested to purchase cannabis. Thus, the criminal conduct of the victim directly contributed to his death.

Wherefore it is hereby ordered that the order of September 14, 1990, denying Claimant’s claim remains in full force and effect.


source: Caselaw Access Project

author: Sommer, J. Sommer, J.

license: Public Domain

text:
    (No. 90-CV-0944

      In re Application of Ruben Jones and Irene Jones

      Opinion filed May 21, 1991.

      Notice filed May 21, 1991.

      Opinion filed February 6, 1992.

    Ruben Jones and Irene Jones, pro se, for Claimants.
    Roland W. Burris, Attorney General (James Maher III and Andrew Levine, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Sommer, J.

This claim arises out of an incident that occurred on December 9,1989. Ruben Jones and Irene Jones, father and mother, respectively, of the deceased victim, Ruben F. Jones, seek compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

This Court has carefully considered the applications for benefits submitted on January 16, 1990, and January 22, 1990, respectively, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That Ruben F. Jones, age 19, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1). The victim was shot on December 9, 1989, and expired from his injuries on December 10,1989.

2. That the crime occurred in Chicago, Illinois, and all of the eligibility requirements of section 76.1 of the Act have been met.

3. That the Claimants seek compensation for funeral and medical/hospital expenses incurred as a result of the victim’s death.

4. That according to section 80.1(c) of the Act, a person related to the victim is eligible for compensation for funeral, medical and hospital expenses provided that such expenses were paid by him.

5. That funeral and burial expenses were incurred in the amount of $3,190.50, all of which was paid by the Claimant, Ruben Jones. The Claimant, Irene Jones, did not pay anything towards the funeral expenses. Therefore, pursuant to section 80.1(c) of the Act, she is not entitled to compensation.

6. That the medical/hospital expenses incurred as a result of the victim’s death have been paid by insurance, with the exception of $810.00, which is currently pending with the insurance carrier. The Claimants have not paid anything towards this amount and pursuant to section 80.1(c) of the Act, these expenses cannot be considered for compensation at this time. Should either Claimant pay a compensable amount towards this expense, they may petition the Court to reopen consideration of their claim for additional compensation, pursuant to section 86 of the Act.

7. That the Claimant, Ruben Jones, has received no reimbursements that can be counted as an applicable deduction under section 80.1(e) of the Act.

8. That the Claimant, Ruben Jones, is entitled to an award based on the following:

Funeral Expenses $3,000.00

It is hereby ordered that the sum of $3,000.00 be and is hereby awarded to Ruben Jones, father of Ruben F. Jones, an innocent victim of a violent crime.

It is further ordered that the claim of Irene Jones be and is hereby denied.

NOTICE

TO: Ruben Jones

10737 South Michigan Avenue

Chicago, Illinois 60628

Compensation having been paid to the above-named claimant(s) pursuant to the provisions of the Illinois Crime Victims Compensation Act (Ill. Rev. Stat., 1987, ch. 70, par. 71 et seq.), you are hereby notified that the State of Illinois claims a charge against any verdict, judgment or decree, entered, or any money or property which is recovered on account of the claim, demand or cause of action against the assailant(s) or any third party who may be liable in damages.

You are further notified that if you seek civil damages from the assailant(s) or any third party who may be liable you must give written notice to the Attorney General of the making of said claim or demand or the filing of said suit for such damages. Neither you nor anyone on your behalf has the authority to release the charge accruing to the State of Illinois by any settlement or compromise with any party who may be liable to you for damages.

OPINION

Sommer, J.

This claim arises out of an incident that occurred on December 9,1989. Ruben Jones and Irene Jones, father and mother, respectively, of the deceased victim, Ruben F. Jones, seek compensation pursuant to the provisions of the Crime Victims Compensation Act. On May 21, 1991, this Court entered an order dated May 21, 1991, awarding $3,000.00 to Claimant Ruben Jones. Irene Jones objected to that order.

A hearing was conducted on this matter on September 19,1991. Claimant Ruben Jones testified that he paid his son’s funeral and burial expenses out of proceeds he received from an insurance policy on his son that named him as the beneficiary.

Claimant Irene Jones testified that she did not expend any money on funeral or burial expenses for her son. She testified that she paid the premiums on the insurance policy.

According to section 80.1(c) of the Act, a person related to the victim is eligible for compensation for funeral, medical and hospital expenses provided that such expenses were paid by him.

Based upon the Claimants’ testimony, the only person in this claim eligible for compensation is Ruben Jones, as he paid the funeral bill. It is therefore ordered that the opinion of this Court dated May 21, 1991, is sustained, and that Ruben Jones is awarded the sum of $3,000.00, if such has not already been paid, and that the claim of Irene Jones be denied.


author: Patchett, J. Patchett, J. Patchett, J.

text:
    (No. 91-CV-0001

      In re Application of Mamie Shackelford Blakely

      Order filed June 5, 1991.

      Opinion filed March 24, 1992.

      Order filed June 23, 1992.

    Arnold M. Schwartz, for Claimant.
    Roland W. Burris, Attorney General (James Maher III and Andrew Levine, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Patchett, J.

This claim arises out of an incident that occurred on December 19,1988. Mamie Shackelford Blakely, mother of the deceased victim, Robert D. Morris III, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on July 2, 1990, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on December 19, 1988, the Claimant’s deceased son, Robert D. Morris III, age 26, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1).

2. That the crime occurred in Joliet, Illinois.

3. That section 76.1(d) of the Act states that the claimant is eligible for compensation if the victim and the assailant were not sharing the same household at the time the crime occurred.

4. That the Attorney General’s investigation shows that the victim and the assailant were sharing the same household at the time the crime occurred.

5. That the Claimant has not met a required condition precedent for compensation under the Act.

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

OPINION

Patchett, J.

This claim arises out of an incident which occurred on December 19, 1988. Robert D. Morris III, the deceased victim, was strangled to death by a cellmate at the Joliet Correctional Center of the Illinois Department of Corrections. Mamie Shackelford Blakely, the mother of the deceased victim, seeks compensation in the sum of $2,713.20 for funeral and burial expenses pursuant to provisions of the Crime Victims Compensation Act. The Claimant has an additional case pending in U.S. District Court, and in the Illinois Court of Claims, arising from this incident.

On June 5, 1991, this Court entered an order denying the claim based on the finding that the victim and assailant were sharing the same household at the time of the crime. The Court further found that Robert D. Morris III indeed was a victim of a violent crime. Ms. Blakely requested review of this Court’s denial, and on September 19, 1991, a hearing was conducted before a commissioner of this Court.

Ms. Blakely testified at that hearing. No other witnesses were called, and the uncontradicted evidence presented by Ms. Blakely established that a total of $2,713.20 was paid in funeral and related expenses for the burial of Robert D. Morris III.

The General Assembly repealed section 6.1(d) of the Crime Victims Compensation Act, effective July 1, 1990. The Claimant argued that this repeal should apply to the case at hand. We need not broach that issue, since the Assistant Attorney General present at the hearing before this Court agreed that the living arrangement which existed at the time of the death of Robert D. Morris III was involuntary, and not in control of the victim. Therefore, we rule as a matter of law that this living arrangement does not amount to a “household” under the Crime Victims Compensation Act.

Therefore, we reverse our earlier decision and award the Claimant, Mamie Shackelford Blakely, the sum of $2,713.20 for funeral and burial expenses.

ORDER

Patchett, J.

This cause comes before this Court upon the petition for attorney fees.

The Court has reviewed the petition, and the Court hereby enters an order allowing the attorney to collect fees from the client in the amount of $900.00.


author: Sommer, J. Patchett, J.

text:
    (No. 91-CV-0844

      In re Application of James Neal

      Order filed January 10, 1991.

      Order filed March 24, 1992.

    James Neal, pro se, and Russell J. Stewart, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher III, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, J.

This claim arises out of an incident that occurred on September 23, 1989. The Claimant, James Neal, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on October 18, 1990, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on September 23, 1989, the Claimant was shot, allegedly by an offender who was known to him. The incident occurred on the street located near 1859 West Belmont, Chicago, Illinois. The alleged offender was later apprehended and released from custody when the Claimant informed the investigating police officers that he did not wish to prosecute him.

2. That section 76.1(c) of the Act states that a person is entitled to compensation under the Act if the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant.

3. That it appears from the police report that the Claimant declined to cooperate fully with the law enforcement officials in the apprehension and prosecution of the assailant, in that the Claimant informed the investigating police officers that he did not wish to prosecute the alleged assailant.

4. That by reason of the Claimant’s refusal to fully cooperate with law enforcement officials in the apprehension and prosecution of the assailant as required by the Act, he is not eligible for compensation thereunder.

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

ORDER

Patchett, J.

Claimant, James Neal, filed an application with this Court seeking compensation under the Illinois Crime Victims Compensation Act arising out of a serious injury he sustained as a result of a violent crime which occurred on September 23, 1989. Mr. Neal filed his claim on October 18,1990.

An order was entered by this Court on January 10, 1991, denying this claim based upon the failure of the Claimant to cooperate fully with law enforcement officials in the apprehension and prosecution of his assailant as required by section 76.1(c) of the Act.

On February 7, 1991, the Claimant’s attorney advised this Court in writing of the Claimant’s request for a hearing and made the following statement, # * the Claimant was shot on September 23, 1989. He knew his assailant.” See Respondent’s Exhibit A.

The sole disputed issue in this case involves whether or not the Claimant cooperated fully with law enforcement officials as required by the Act.

A commissioner of this Court conducted an evidentiary hearing on September 26, 1991. Evidence produced at the hearing established that the Claimant was indeed the victim of a crime as defined in chapter 7, section 71 et seq. of the Crime Victims Compensation Act.

The Claimant was shot on September 23, 1989, in the vicinity of Wolcott and Belmont in Chicago, Illinois. The Claimant was taken by a friend to the Illinois Masonic Hospital after the shooting. The Claimant testified at the hearing that he was interviewed there by personnel from the Chicago Police Department who attempted to determine the identity of the assailant.

The Chicago Police Department made a report of this incident, which was admitted into evidence at the hearing as Claimant’s Exhibit No. 1. Chicago police officers Reynolds and Ross responded to the Illinois Masonic Hospital and were told by the victim that, * * he knew the man who shot him, that the police should talk to the Claimant’s Uncle Travis, and that this was a family matter.” At the evidentiary hearing previously referred to, the State introduced the testimony of police officer Greg Reynolds who testified that he was present at the hospital and he asked the Claimant if he knew who shot him. He testified that the Claimant replied by indicating to the officers, “* * * speak to my uncle because he knows about this.”

Detective Charles Ford of the Chicago Police Department also testified at the hearing. He spoke to the Claimant at the Illinois Masonic Hospital, and after informing the Claimant that his cousin was in custody, the Claimant said that, “* * * he did not want to further the family feud.” Detective Ford testified that it was his understanding, * * the Claimant and his cousin had a big fight two days prior to this incident.”

The Claimant testified that he never had a conversation with any police officer where he stated, # * my Uncle Travis knows about it, talk to him.” The Claimant further denied stating that he did not want to prosecute his cousin, Brian, who was in custody.

However, Officer Ford of the Chicago Police Department testified that on September 25, 1989, he interviewed the Claimant and was told, “* * # I don’t want to have anything further to do with the police and don’t want to further the family feud.” This resulted in the suspect being released from police custody.

In summary, grave doubts were raised as to the credibility of the Claimant. The evidence clearly suggested that the Claimant did in fact know the identity of his assailant and voluntarily chose not to pursue his prosecution. The evidence further suggests that the Claimant made willful misstatements of facts within the meaning of section 90(a) of the Crime Victims Compensation Act, which precludes any recovery in this case.

Therefore, this Court affirms its earlier order denying this claim.


author: Poch, J. Poch, J.

text:
    (No. 91-CV-1716

      In re Application of Alfred R. Pelt

      Order filed June 19, 1991.

      Opinion filed April 7, 1992.

    Alfred R. Pelt, pro se, for Claimant.
    Roland W. Burris, Attorney General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Poch, J.

This claim arises out of an incident that occurred on September 13, 1990. Alfred R. Pelt, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on February 13,1991, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on September 13, 1990, the Claimant was injured as a result of a traffic accident. The incident occurred at the intersection of 146th and Halsted Streets, Harvey, Illinois. Police investigation revealed that the Claimant’s motorcycle was traveling northbound when it was struck by the offender’s vehicle. The offender was issued a traffic citation for failure to yield the right-of-way. No criminal charges were filed against him.

2. That in order for a Claimant to be eligible for compensation under the Act, there must be evidence that one of the violent crimes specifically set forth under section 72(c) of the Act occurred.

3. That “crime of violence” as specified in section 72(c) of the Act does not include any other offense or accident involving a motor vehicle except reckless homicide and driving under the influence of intoxicating liquor or narcotic drugs.

4. That the issue presented to the Court is whether the Claimant’s injury that was caused by the offender’s operation of a motor vehicle is compensable under section 72(c) of the Act.

5. That as the Court stated in In re Application of Hansen (1980), 34 Ill. Ct. Cl. 401,

“The Court has uniformly taken the position that the Illinois Crime Victims Compensation Act is not applicable to unintentional motor vehicle offenses, as not being a ‘crime of violence’ within §2(c) thereof.”

See also In re Desir (1980), 34 Ill. Ct. Cl. 391; In re Stevens (1976), 31 Ill. Ct. Cl. 710.

6. That this claim does not meet required conditions precedent for compensation under the Act.

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

OPINION

Poch, J.

This claim arises out of an incident that occurred on September 13,1990. Alfred R. Pelt, the Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.

The Court had previously denied the claim based upon the application for benefits submitted by the Claimant and upon the investigatory report of the Attorney General. The Court had found that the Claimant was not a victim of a violent crime as defined in section 72(c) of the Act.

The Claimant requested a hearing and the claim was assigned to a commissioner of the Court for a hearing. At the hearing the Claimant testified he was operating a motorcycle at 8:00 a.m. on September 13, 1990. He was travelling north on Halsted Street at 146th Street in Chicago when he was struck by an automobile, causing several personal injuries and damage to the motorcycle. The Claimant did not know if the other driver was intoxicated. The other driver was charged with failure to yield a right-of-way. The evidence showed that the other driver was not charged with any other criminal charges and that the police report indicated the other driver appeared “normal.”

In order for a claimant to be eligible for compensation under the Act, there must be evidence that one of the violent crimes enumerated in section 72(c) of the Act occurred. That section does not include a motor vehicle accident as a “crime of violence” unless it involves a reckless homicide offense or driving under the infuence of intoxicating liquor or narcotic drugs.

There was no evidence that the Claimant’s injuries were caused by a driver operating the vehicle under the influence of alcohol or drugs. Since the Claimant’s injuries were not caused by the operation while intoxicated, the matter is not compensable under section 72(c) of the Act.

This claim does not meet the required conditions precedent for compensation under the Act.

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


author: Montana, C.J.

text:
    (No. 80-CC-0056
    John Hagensick, Administrator of the Estate of Jay C. Hagensick, Deceased, Claimant, v. The State of Illinois, Respondent.

      Order filed July 14, 1992.

    Richard T. Sikes, for Claimant.
    Roland W. Burris, Attorney General (Janice Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause is before the Court on Respondent’s motion for summary judgment, Claimant’s answer to motion for summary judgment, and Respondent’s reply in support of its motion for summary judgment.

Claimant’s complaint in the Court of Claims incorporates by reference a complaint filed in the Circuit Court of Cook County in case No. 79 L 14226 concerning the events leading to this suit. In said complaint Claimant alleges in relevant part as follows:

“John R. Hagensick, Administrator of the Estate of Jay C. Hagensick, deceased, complains of the defendants, the Forest Preserve District of Cook County, a Municipal Corporation, Cook County, Illinois, a Body Politic, and the State of Illinois, and states:
1. That plaintiff is the duly qualified and acting Administrator of the Estate of Jay Charles Hagensick, deceased, having been so appointed by the Circuit Court of Cook County on December 18,1978.
2. The Forest Preserve District of Cook County is a Municipal Corporation organized and existing under the laws of the State of Illinois.
3. At all times relevant, defendants, the Forest Preserve District of Cook County, Cook County and the State of Illinois owned, operated, and controlled a certain so-called forest preserve in Cook County, Illinois, located at 107th Street and La Grange Road, including a certain snowmobile path and highway snow fences in connection therewith.
4. That prior to January 28, 1978, defendants, and each of them, had erected a crossbar structure in connection with the erection and maintenance of a snow fence, at the aforesaid location.
5. That it was the duty of tire defendants and of each of them to erect and maintain said snow fence in such a manner as not to interfere with the lawful use of said forest preserve.
6. That on or about January 28, 1978, plaintiff’s intestate, Jay Charles Hagensick, while lawfully using the aforesaid forest preserve snowmobile area on his snowmobile, came in contact with an iron crossbar structure as aforesaid which caused plaintiff’s intestate to be thrown violently from his snowmobile and resulted in his death.
7. That notwithstanding the duty of each defendant to maintain and erect structures so as not to interfere with the lawful use of said forest preserve, each defendant violated its duty to lawful uses thereof, and in particular to plaintiff’s intestate, in one or more of the following respects:
a) Maintained a so-called snowmobiling area in a place where an artificial structure had been placed so as to institute a hazard to snowmobilers.
b) Placed a crossbar device in an area that had been designed as a snowmobiling area with [sic] due regard for the use intended for such location.
c) Failed to adequately warn snowmobilers of the hazard created by the placing of a crossbar device.
d) Erected a crossbar device in an area intended for use by snowmobilers when it knew or should have known that the placing of such device constituted a hazard to the use for which the area was intended.
8. That as a proximate result of one or more of the foregoing breaches of duty owed by defendants, and by each of them, to plaintiff’s intestate, plaintiff s intestate suffered an accident and his death as aforesaid.”

A previous motion to dismiss filed by Respondent indicated that in the action against the Forest Preserve of Cook County (Forest Preserve), the Forest Preserve was found by the circuit court to owe no duty to Claimants decedent to keep the premises safe for snowmobiling or to give a warning of any unsafe condition. Respondent asserted in its motion to dismiss that the claim against Respondent should be dismissed based on sections of the Illinois Snowmobile Registration and Safety Act (Snowmobile Act), Ill. Rev. Stat. 1983, ch. 951A, pars. 605 — 1(1), (j)-

Those sections stated:

“I. An owner, lessee, or occupant of premises owes no duty to keep the premises safe for entry or use by others for snowmobiling, or to give warning of any unsafe condition or use of or structure or activity on such premises. This subsection does not apply where permission to snowmobile is given for a valuable consideration other than to this State, any political subdivision or municipality thereof, or any landowner who is paid with funds from the Snowmobile Trail Establishment Fund.”
“J. An owner, lessee or occupant of premises who gives permission to another to snowmobile upon such premises does not thereby extend any assurance that the premises are safe for such purpose, or assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted. This subsection shall not apply where permission to snowmobile is given for a valuable consideration other than to this State, any political subdivision or municipality thereof, or any landowner who is paid with funds from the Snowmobile Trail Establishment Fund.”

Respondents position was that, based on these sections, the claim against Respondent should be dismissed because Respondent erected the snow fence on the Forest Preserves property with the Forest Preserves permission. Therefore the immunity applicable to the Forest Preserve should also extend to the Respondent. Respondent further noted that the Illinois Supreme Court had upheld the constitutionality of the Snowmobile Act in Ostergren v. Forest Preserve District (1984), 104 Ill. 2d 128, 471 N.E.2d 191.

Claimants answer to the motion to dismiss asserted the State of Illinois had not shown it was an owner, lessee or occupant of the premises upon which the occurrence took place nor did the State of Illinois give permission to Claimants intestate to snowmobile. Said answer further asserted the State of Illinois had not brought itself within the ambit of the statute and had shown no authority why this immunity statute should also extend to it.

The Court determined Respondent had shown no authority why the statute should extend to the State. The motion to dismiss was therefore denied.

The claim is now before the Court on a motion for summary judgment filed by Respondent. Respondent states on page 2 of the motion:

“The respondent erected the snow fence to prevent blowing snow from entering on Illinois Route 45 during periods of inclement weather. (See Exhibit A, Affidavit of Edward K. Kolton which is attached hereto.) The Cook County Forest Preserve District (hereinafter ‘Forest Preserve’) gave oral permission for respondent to go upon its land to erect the snow fence in question. (See Exhibit C, Affidavit of Arthur L. Janura and is attached hereto.)”

The Court notes that an Exhibit C was not attached to the motion. The affidavit of Arthur L. Janura was labeled Exhibit B.

Respondent again asserts in the motion that the State is immune from liability under the Snowmobile Act. On page 3 of the motion Respondent states:

“In the instant case, the Cook County Forest Preserve granted verbal permission for respondent to erect the snow fence in question upon its property. By doing so, the Forest Preserve gave respondent a license to go upon its property. A license in respect to real property is permission to do an act or a series of acts upon the land of another without possessing any estate or interest in such land. Mueller v. Keller, 18 Ill. 2d 334, 164 NE2d 28 (1960). As such, respondent was occupying the Forest Preserve’s premises as a licensee. Thus, respondent falls within the ambit of section 605-1(1) as an ‘occupant of the premises’ and owes no duty to claimant to keep the portion of its premises safe for the purpose of snowmobiling.”

Respondent further argues in the motion that public policy requires that Respondent fall within the ambit of the Snowmobile Act. On page 4 of the motion Respondent states:

“In the instant situation, respondent had a duty to maintain its roadways in a reasonable condition for the traveling motorists. The purpose of erecting the snow fence in question was to prevent drifting snow from accumulating into a hazardous condition on the travelled portion of Route 45. (See Exhibit A). It is a matter of public policy for respondent to promote public safety for vehicular traffic. Clearly, the safety of the travelling public on state roadways outweighs the need to remove the snow fence in question in order to make the forest preserve free from all defects that could upset a speeding snowmobile"

In the answer to motion for summary judgment Claimant argues that Respondent was not an occupant of the premises within the meaning of section 605 — 1(1) of the Snowmobile Act. Claimant submits that the State in this claim is a licensee, a temporary user of property removable at the will of the licensor, and as such is not entitled to be deemed an occupant covered by the Snowmobile Act. In support of this position Claimant cites Pioneer Irrigation District v. Smith (Idaho Sup. Ct. 1930), 285 P. 474; Labree v. Millville Mfg. Inc., (Sup. Ct. App. Div. 1984), 195 N.S. Super 575, 481 A.2d 286; and Drake v. Ogden (1989), 128 Ill. 603.

In Respondents reply in support of its motion for summary judgment, Respondent cites the cases of Bishop v. Stewart (Miss. Sup. Ct. 1958), 106 So.2d 899 and McGee v. Charles F. Smith & Sons Inc. (Miss. Sup. Ct. 1978), 357 So.2d 930.

This Court agrees with both parties that the States position in this claim was that of a licensee. The issue that must be resolved is whether as a licensee, the State was also an occupant of the premises and thus covered by the Snowmobile Act. The Court has reviewed the cases cited by both parties and not found them to be persuasive in resolving this claim because the situations presented within them are dissimilar to that presented in the claim at bar. However, a case which does present a situation similar to the claim at bar is Smith v. Sno Eagles Snowmobile Club, Inc. (E.D. Wis. 1985), 625 F. Supp. 1579.

In Smith, plaintiff, Marlene Smith, was injured when the snowmobile she was driving on a snowmobile trail in Eagle River, Wisconsin, collided with an automobile at a point where the snowmobile trail intersected with a driveway. The snowmobile trail was located on land which included stretches that were privately as well as govemmentally owned. The United States Forest Service owned the section of trail where the accident occurred.

The snowmobile trail was planned and constructed by Sno Eagles Club, Inc. (Sno Eagles), and groomed by Headwater Trails, Inc. (Headwater).. Both organizations were voluntary and nonprofit. Sno Eagles would gain permission from landowners to construct snowmobile trails across their property and then do whatever was physically necessary to create the trails on the property. After a trail was constructed signs were erected by Sno Eagles. Once the trail was completed and the signs were in place, Headwater personnel would groom the trail. While grooming the trails, Headwater personnel would carry signs to replace signs they found missing. On the date of the accident, Mrs. Smith was snowmobiling along what was called the 2 East Trail. The 2 East Trail was drawn on a trail map, but was not marked by signs.

Mrs. Smith and her husband filed a lawsuit based on diversity in the United States District Court for the Eastern District of Wisconsin against the automobile driver, Michelle Hafer, as well as Sno Eagles and Headwater, and their respective insurers. Michelle Hafer sought contribution from Sno Eagles and Headwater. The Smiths alleged that Sno Eagles and Headwater were negligent in the maintenance of the trail and in failing to mark the site of the driveway. Since Sno Eagles and Headwater asserted the trail had not been opened as of the time of the accident, the Smiths argued that they were negligent in not marking the trail to indicate it was not yet open.

Sno Eagles and Headwater moved for summary judgment claiming they were exempt from liability by the Wisconsin Recreational Use Statute, Wis. Stat. sec. 29.68, in effect at the time of the accident. That section as cited at 625 F. Supp. 1592 provided:

“(1) ***An owner, lessee, or occupant of premises owes no duty to keep the premises safe for entry or use by others for hunting ° 4 4 snowmobiling 4 4 4 or recreational purposes, or to give warning of any unsafe condition or use of or structure or activity on such premises to persons entering for such purpose except as provided in subdivision 3.”

Subdivision 3 states:

“This section does not limit the liability which would otherwise exist for willful or malicious failure to guard or to warn against a dangerous condition

The trial judge determined that for Sno Eagles and Headwater to be covered by section 29.68 they had to be within the definition of occupant. However, the term occupant was not defined by section 29.68. The trial judge stated at 625 F. Supp. 1582:

“I have examined several definitions of tire noun occupant. Black’s Law Dictionary defines occupant as:
‘Person having possessory rights, who can control what goes on on premises. One who has actual use, possession or control of a thing.’
Webster’s Third New International Dictionary 1560 (G. & C. Merriam Co. 1976) provides a more varied menu of meanings for occupant:
‘a: one who takes first possession of something that has no owner and thereby acquires title by occupancy b: one who takes possession under title, lease or tenancy at will 2a: one who occupies a particular place or premises * ° ° b: one who holds a particular post 0 ° ° 3: one who has actual use or possession of something * 0
The definition of the verb ‘to occupy’ lends additional meaning to the noun occupant. One of the meanings of the verb ‘to occupy’ is ‘actual use, possession, and cultivation.’ Black’s Law Dictionary. Occupy and occupant include persons who, while not owners or tenants, have tire actual use of land.
When construing statutes, courts must attempt to give meaning to every term used by the Legislature. County of Columbia v. Bylewski, 94 Wis.2d 153, 164, 288 N.W.2d 129 (1980). The primary purpose of statutory construction is to determine the intent of tire Legislature and to give meaning to diat intent. Id. While ‘occupant’ includes definitions of owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to ‘occupant’, the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner. Plaintiffs argue that ‘occupant’ connotes exclusive use. This construction, however, would render the term ‘occupant’ virtually meaningless, since exclusive possessors and users are usually owners or tenants.”

The Smiths and Michelle Hafer argued that Sno Eagles and Headwater were licensees and since licensees were not named in section 29.68, Sno Eagles and Head-water were not exempt from liability. In response to this argument the trial judge stated at 625 F. Supp. 1592-93:

“I agree that Sno Eagles and Headwater may be characterized as licensees; however, this status does not prevent them from also being classified as occupants. Sno Eagles and Headwater occupied the land to the extent of constructing and grooming snowmobile trails. Excluding these defendants from the purview of §29.68 would thwart the statute’s purpose.
In enacting §29.68, the Wisconsin Legislature intended to limit the liability of landowners, lessees, and ‘occupants’ who opened their land to the public without receiving valuable consideration in return. See Goodson v. Racine, 61 Wis.2d 554, 559, 213 N.W.2d 16 (1973). The Wisconsin Legislature’s intention would not be furthered by excluding non-profit organizations such as Sno Eagles and Headwater from the purview of §29.68. Moreover, to limit the definition of ‘occupant’ to an exclusive user, an owner, or a lessee, would render the term redundant. I therefore hold that non-profit organizations such as Sno Eagles and Headwater which enter land for a limited purpose, are occupants within the meaning of §29.68, and that their liability is limited by that statutory section.”

The Smiths appealed the district courts decision alleging in part that the district court improperly found Sno Eagles and Headwater to be occupants of 2 East Trail and therefore entitled to immunity under Wis. Stat. sec. 29.68. The United States Court of Appeals, Seventh Circuit, affirmed the district courts decision in Smith v. Sno Eagles Snowmobile Club, Inc. (7th Cir. 1987), 823 F. 2d 1193.

In the claim at bar, the State of Illinois is in a position similar to that of Sno Eagles and Headwater in Smith. At the time of the decedents accident, its status with respect to a portion of land the snow fence was upon was that of a licensee. The section of the Snowmobile Act relied upon by the State in the claim at bar as exempting it from liability is similar to the statute relied upon by Sno Eagles and Headwater in Smith. Each exempts from liability an owner, lessee or occupant of premises without defining those terms. The State in the claim at bar is in the same position as Sno Eagles and Headwater in Smith in that, as a licensee, it also must be deemed an occupant within the ambit of the Snowmobile Act to be exempt from liability.

The reasoning of the trial judge in Smith in determining that Sno Eagles and Headwater, as licensees, were also occupants entitled to immunity under Wis. Stat. sec. 29.68 is persuasive and applicable in resolving this claim. Based upon it, we find that at the time of the decedents accident, the State was an occupant of the Forest Preserve of Cook County within the ambit of section 605 — 1(1) of the Snowmobile Act and therefore owed no duty to keep the portion of the premises it occupied safe for entry or use by others for snowmobiling, or to give warning of any unsafe condition or use of or structure or activity of such premise. The States status as a licensee did not prevent it from also being an occupant covered by section 605 — 1(1).

Since we have found the State in this claim to have been covered by section 605 — 1(1), we do not find it necessary to address the public policy argument presented in Respondent s motion for summary judgment.

Based on the foregoing, it is hereby ordered that Respondents motion for summary judgment be, and hereby is, granted and that this claim accordingly be denied.


author: Dillard, J. JANN, J.

text:
    (No. 81-CC-0188
    Richard L. Gaiser, Claimant, v. The State of Illinois, Respondent.

      Order filed September 10, 1990.

      Order filed May 13, 1993.

    SPECTOR & Lenz, for Claimant.

      Roland W. Burris, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Dillard, J.

Introduction:

This cause comes on to be heard upon the claim of Richard Gaiser bringing an action in tort against the State of Illinois, Department of Mental Health and Development Disabilities. Claimant alleges that the Respondent was negligent and that it violated the duty to exercise reasonable care for the safety and welfare of its patients and duty to exercise reasonable care to prevent an individual within the custody of the Respondent from inflicting injury upon himself.

Six pretrial conferences were held in this matter during which discovery was completed. A hearing was held in this matter consisting of five sessions from October 21, 1982, through November 17, 1982.

Facts:

The Claimant, Richard Gaiser, was born on July 28, 1950. On July 17, 1978, Claimant was voluntarily admitted to Tinley Park Mental Health Center. The Claimant was admitted and was diagnosed as mentally retarded with psychosis symptoms. Tinley Park Mental Health Center is a minimum security institution. The purpose of Tinley Park Mental Health Center is to return the patient to society as a functional member of the community.

From July 17, 1978, through August 19, 1978, the Claimant was placed in restraints on eight occasions. The Claimants father informed Respondents staff that Claimant was engaging in head banging, running into walls, moaning and engaging in threatening gestures. Upon admission, the preliminary diagnosis indicated that the Claimant was potentially dangerous to himself. On August 9, 1978, the Claimant, while in restraints, managed to free his hand and lacerate his left eye and tear duct. From August 16 through August 18, 1978, Claimants behavior was uneventful and he was never placed in restraints during that period.

It was common practice to observe a patient for three days after admission and to permit the patient a grounds pass if no behavioral problems were exhibited. The grounds passes were kept at a nursing station in a box. Claimant requested a pass from Dr. Soo Ja Song on August 18, which was refused because it was her personal policy not to issue grounds passes on Fridays.

On the morning of August 19, 1978, Ms. Thompson, an employee of the Respondent, did allow the Claimant off the male unit. The testimony of Ms. Thompson was that the Claimant exhibited an orange pass which was the appropriate color for temporary release from the facility and further that the Claimant exhibited exemplary behavior, grooming, and dress. The testimony of the Claimant varied between not remembering whether he did or did not exhibit a grounds pass, to identifying that he did show a pass to her.

Respondent indicates in its statement of facts that the employee had no knowledge that the Claimant was attempting an escape, that he was not to be let off the ward, or that he was not to leave the floor. Subsequently, the Claimant was discovered by Tinléy Park Mental Health Center security in a ditch at the border of the grounds. He had engaged in behavior that resulted in the gouging of his right eye. Claimant was brought to South Suburban and Billings Hospital for treatment.

At Billings Hospital the Claimants right eye was surgically removed and extensive lacerations to the upper and lower lids of each eye were treated. On April 2, 1979, the Claimant was given absolute discharge from the Respondents mental health system. From that date to the date of hearing, Claimant has found a course of assimilation into the community. Claimant has an apartment, friends, and appears to be adjusting well.

Law:

The Court has held that a hospital is not an insurer of a patient s safety, but owes a patient the duty of protection and must exercise such reasonable care as the patients known condition may require. (Todd v. State (1983), 32 Ill. Ct. Cl. 647.) The Court further developed a standard of care in Reynolds v. State (1983), 35 Ill. Ct. Cl. 647.

In Reynolds, a claim was brought against the State of Illinois aheging that the respondent was negligent in failing to observe, guard, or care for the claimant. The evidence showed that the claimant was admitted to a minimum security unit on July 3, 1976, after the examining physician diagnosed acute psychotic episode. In the course of the next 34 hours the claimant attempted to escape on several occasions and finally escaped on July 4, 1976. On the morning of July 6, 1976, the claimant jumped in the Chicago River and drowned. This Court denied the claim. In Reynolds, supra, at 49, the Court stated:

“The burden of proof is on the claimant to warrant the imposition of liability and negligence against the hospital. The State, by the Department of Mental Health, owes its patients the duty of protection and must exercise reasonable care toward the patients as the patient’s known condition may require, including safeguarding of a patient from dangers due to mental incapacity when such mental incapacities are known or by the exercise of reasonable care ought be known. The State is not, however, an insurer of the safety of the patients under the care of its Department of Mental Health.”

Thus, the claimant has the burden of showing that the respondent failed to exercise reasonable care for the patient given his known condition. The claimant in Reynolds did not meet its burden.

The instant case also has the factual element of escape, which has been addressed by this Court in Calvin v. State (1982), 35 Ill. Ct. Cl. 611. This Court has held that before recovery can be made in such cases, claimant must prove that a lack of proper and reasonable care existed. It is then the claimants burden to prove that the respondent failed to exercise due care and failed to prevent escape where it could have reasonably been expected to predict the escape. The respondent cannot be held liable unless it knew or should have reasonably been expected to know of, or predict, a patients sudden escape. Furthermore, the claimant must demonstrate that the injuries suffered were the proximate result of the breach of the duty by respondent.

In Calvin v. State (1982), 35 Ill. Ct. Cl. 611, this Court denied a claim of a claimant who was admitted to Tinley Park Mental Health Center in 1975. At the time the claimant entered the Tinley Park Mental Health Center, he could not leave without permission or a pass, and die doors to his unit were opened and closed with a key which was in the hands of authorized personnel. The claimant asked permission to leave the area but was refused. Upon observing an attendant of the hospital leaving, he ran through the door and exited the facility. Approximately 25 minutes after he escaped from the facility he was discovered dead on nearby railroad tracks.

In Calvin, the claimant alleged that the respondent failed to provide proper care, supervised patrol, or properly trained security guards, thereby breaching its duty of care towards the claimant. Unlike the instant case, in the Calvin matter, the parties presented testimony of several physicians and psychiatrists with regard to the suitability of the care rendered and security precautions taken. The Court denied the claim, holding that the respondent was not liable because it could not have known nor predicted the claimants escape.

The instant action presents several similar factual patterns to Reynolds and Calvin. Here, the Claimant was admitted to a minimum security unit, received care for the diagnosed symptomatology and exhibited erratic and sometimes self-threatening behavior, attempted escape and proceeded in doing harm to himself. Similarly, as in Calvin and Reynolds, the Claimant has not shown that the action taken by the Respondent through its employees violated any standards of care as were applied to the Respondent at the time in question. The Claimant never called any expert witnesses in the area of psychiatric treatment of the Claimants disorders; Claimant never presented evidence with regard to the adequacy or size of the personnel on duty or with regard to the security at the Tinley Park Mental Health Center.

Conclusion:

Claimant solely relies on the fact that the Claimant was able to leave the unit on August 19, 1978, in spite of a denial of a pass by Dr. Soo Ja Song on August 18, 1978, and that the Claimant injured himself. Claimant suggests that his own erratic behavior in the 33 days prior to August 19, 1978, should have precluded Respondents employee, Ms. Thompson, from releasing Claimant with what appeared to be an appropriate grounds pass on August 19, 1978.

It is regrettable that the Claimant suffered such a tragic, painful and permanent injury. However, the severity of the injury alone is not enough to assess liability against the Respondent for breaching its duty of care to the Claimant.

The evidence as submitted clearly indicates that the Claimant was receiving the attention of the Respondent in this facility and that its employees were exercising attentive care for his behavior, as is clearly evidenced by the fact that the Respondent had the Claimant in protective restraint on 8 of the 33 days from admission to injury. Furthermore, Claimant was exhibiting normal behavior for three full days prior to August 19, 1978, and through his own actions convinced the Respondents employee that he had an appropriate grounds pass.

It is very clear that the Respondents employee was impressed with the cleanliness and grooming of the Claimant at that time. There is nothing in the evidence to indicate that the Respondents employee should have been put on alarm or in fear that the Claimant was attempting to engage in anything other than normal grounds activity which the Claimant had been engaged in on prior occasions.

For the above stated reasons, the Court finds that the Claimant failed to sustain his burden of proof. Therefore, it is hereby ordered that this complaint is denied.

ORDER

JANN, J.

This cause comes on to be heard on the petition of Claimant for rehearing, the Court being fully advised in the premises and having conducted a careful review of the record finds:

Claimants petition for rehearing is hereby denied.


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

text:
    (No. 82-CC-2315
    Katie M. Garland and Cathy Amos, Claimants, v. The State of Illinois, Respondent.

      Order filed April 19, 1984.

      Order filed July 2, 1984.

      Opinion filed Nov. 23, 1992.

    Arnold E. Landsman, Ltd., for Claimants.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss the claim of Claimant Cathy Amos, with prejudice.

Respondents motion sets forth that the accident occurred on April 12, 1981, that Claimant was riding in an automobile owned and operated by Katie M. Garland, and that the Garland automobile collided with an Illinois Department of Transportation motor vehicle on the Kennedy Expressway at approximately 901 North in Chicago, Illinois. Cathy Amos and Katie M. Garland joined as Claimants in the instant cause.

Respondents motion further sets forth section 790.60 of the Court of Claims Regulations and section 25 of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.24-5) which requires that any person who files a claim before the Court of Claims shall, before seeking final determination of his claim by this Court, exhaust all other remedies and sources of recovery.

The record is devoid of any evidence indicating that Cathy Amos had made any effort to exhaust such remedies and sources of recovery before seeking a final determination from this Court.

The Court notes that in answer to No. 11 of interrogatories, filed February 8, 1984, “Have you ever filed any other suit for your own personal injuries?” Claimant Cathy Amos answered “No.” This Court has repeatedly held that claimant must exhaust all other remedies before seeking final determination in this Court.

Claimant having failed to exhaust her remedies, motion of Respondent to dismiss the claim of Cathy Amos is granted, and her claim is hereby dismissed.

ORDER

Holderman, J.

This matter comes before the Court upon motion of Claimant to vacate the Courts order of dismissal dated April 19, 1984. The dismissal order was to the effect that Claimant had not exhausted her remedies before filing a claim in this Court.

Claimants motion to vacate the Courts order of dismissal sets forth that Claimant does not have a claim against anyone other than the State of Illinois and therefore the order of dismissal for failure to exhaust her remedies was wrong. Claimants position that there is no other claim available to her does make the State of Illinois the only possible defendant.

The Court finds the dismissal order heretofore entered by this Court on April 19, 1984, is in error, motion to vacate said order of dismissal is granted, and this cause is ordered set for hearing before a commissioner.

OPINION

Burke, J.

On April 12, 1981, Claimant, Katie M. Garland, was driving her automobile in a northbound direction on the Kennedy Expressway approaching Ohio Street in Chicago, Illinois. Cathy Amos was a passenger in said automobile. It was raining and at approximately 1:00 a.m., Claimant rear-ended a parked State of Illinois sand truck.

Shortly before the accident, a semi-trailer truck jackknifed on the expressway and hung over a guard rail, blocking several lanes of northbound traffic. The sand truck was called to the scene as the semi-trailer truck was leaking diesel oil. Sand was spread over the area to prevent other accidents. Claimants’ vehicle rear-ended the sand truck which was parked at the rear of the disabled semi-trailer.

Hal Halihan, Department of Transportation employee, testified that he drove the truck to the scene, switched on his mars lights and all of the truck’s flashers together with his headlights and taillights. In addition, he lit flares and gave flares to the Chicago police to light and place further back from the scene to warn the motoring public. Also on the scene were Chicago police squad cars with their emergency lights on as well as several Chicago fire department vehicles with their emergency lights on.

With all the emergency lighting on the various vehicles and the many flares on the road, the Claimant, Katie M. Garland, rear-ended the parked sand truck. There was no evidence of negligence on the part of the Respondent, State of Illinois. Claimants’ injuries resulted from their own inattentiveness and negligence.

It is therefore ordered that the claim of Katie M. Garland and Cathy Amos is denied.


author: Patchett, J.

text:
    (No. 84-CC-0267
    Terry L. Grimes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 2, 1993.

    Thomas R Naughton & Associates, for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim arises from a motorcycle accident which occurred on August 4, 1981, in Will County, Illinois. The Claimant allegedly lost control of the motorcycle he was operating after hitting a hole in the roadway.

The Claimant filed a notice of intent and a verified complaint in 1983. The claim was placed on a general continuance while he pursued an action against John and Ron Excavating. That case was settled for $150,000.

Subsequent to the settlement of the action against the excavating company, the Respondent filed a motion to dismiss in 1985. The basis of the motion to dismiss was that there was a maximum award of $100,000 for tort injuries, and this amount had been exceeded in the underlying civil lawsuit. The Claimant then filed a response to that motion on July 8, 1985.

In May 1987, this Court gave the Respondent 60 days to file a memorandum of law in support of the motion to dismiss and granted the Claimant 120 days from that date to file a memorandum of law in opposition of the motion. The Respondent filed a memorandum of law, but the Claimant then filed a motion to substitute attorneys and for an extension of time. In October 1987, this Court granted the Claimant leave to change counsel and an extension of time in which to file a responsive memorandum or otherwise plead. The Claimant filed an amended verified complaint instead of a memorandum of law. That complaint attempted to state a cause of action in contract. The Respondent then moved to dismiss that complaint.

In March, 1988, a commissioner of this Court denied a request which had been made by the Respondent for section 2 — 611 sanctions. He granted the parties additional time to file memoranda of law.

This Court then entered an order denying all motions to dismiss and remanded this case to the commissioner. The Respondent subsequently filed a motion to vacate that order. About two years later, the complete file, along with the motion to vacate, was finally forwarded to the judge assigned to this case.

The Court vacated its previous order of December 1989 and set the matter for oral argument on all pending motions. Oral argument was held on March 24, 1993.

After the hearing at oral argument and reviewing the file, the Court finds as follows:

The underlying civil court settlement of $150,000 exceeded the amount available to the Claimant under a tort theory of action. Therefore, that motion to dismiss on a tort theory should have been granted.

The Claimant attempted to refile a cause of action under contract theory. Unfortunately, the statute of limitations had run. In addition, the Claimant could not make a good faith claim that he was a third-party beneficiary of a contract between the State of Illinois and the excavators. Further, the contract claim did not relate back to the original filing sufficient to take it out of the statute of limitations.

Therefore, this Court grants the motion to dismiss this claim.


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

text:
    (No. 84-CC-0446
    Robert Gant, Claimant, v. The State of Illinois, Respondent.

      Order filed. May 9, 1984.

      Opinion filed March 4, 1993.

    Jacqueline A. Kinnaman, for Claimant.
    Roland W. Burris, Attorney General (Mitchell Wilneff, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Koe, C.J.

This cause coming before the Court on the joint stipulation of the Claimant and the Respondent, and the Court being fully advised in the premises finds:

This is a standard lapsed appropriation claim for back salary due Claimant as confirmed by the report of the Department of Corrections, dated October 19, 1983.

Salary is due Claimant for the period of November 10, 1978, through June of 1982, less $6,854 received as unemployment compensation from November 18, 1979, through September 20, 1980.

The appropriations, by line items, out of which this would have been paid are as follows: Fiscal years 1980, 1981 and 1982:

Personal Services: 001-42630-1120-00-00

Retirement: 001-42630-1161-00-00

Social Security: 001-42630-1170-00-00

It is hereby ordered that the sum of $42,324.28 plus employer contributions to the State Employees’ Retirement System and/or FICA and minus deductions for appropriate employee payments for State Employees’ Retirement Systems and/or FICA, and for Federal and State income taxes as shown in Appendix 1 attached hereto and made a part hereof be paid Claimant.

We note that this award only partially resolves the instant claim, as the parties wish to litigate the issues of recovery for vacation time and overtime. These matters will be ruled upon at a later date after the submission of evidence and briefs.

APPENDIX A

Identification of the State Contributions and Deductions from Back Salary Award.

To the State Employees’ Retirement System

Employee’s contribution to State

Employees’ Retirement System $2,115.45

Employee’s contribution to FICA 3,174.41

State’s contribution to State

Employees’ Retirement System 3,150.55

State’s contribution to FICA 3,174.41

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal Income Tax 8,464.86

To Illinois Department:

Claimant’s Illinois Income Tax 1,269.73

To Office of Employment Security:

Director Dept, of Labor 6,854.00

To the Claimant:

Net Salary 20,445.83

Total Award $48,649.24

OPINION

Sommer, C.J.

Claimant Robert Gant filed this claim in August of 1983 seeking $57,043.73 in compensation for his wrongful discharge from his position with the Respondent’s Department of Corrections (hereinafter referred to as DOC). He was suspended pending discharge on November 8, 1979, after being indicted for burglary and actually discharged on December 8, 1979. The discharge was subsequently reversed and Claimant was ordered reinstated by the Civil Service Commission. That decision was ultimately upheld by the appellate court on June 30, 1982. The Claimant was reinstated on November 16, 1982.

Based on an agreement of the parties, the Court entered an interim award to the Claimant in the gross amount of $48,649.24 on May 9, 1984, for lost wages. Claimant also sought compensation for lost vacation time and overtime. The parties sought to litigate these issues at a later date and the Court reserved judgment thereon pending submission of evidence and briefs. That part of the case went to hearing on January 12, 1988. The Respondent was granted leave to file its brief on April 10, 1989, and did so. The Claimant has yet to file his brief. The Court has waited long enough.

The claim for payment for vacation days involves either 15 or 17 days (depending on which party’s version is correct) which would have accrued during 1980 had Claimant been on the job then. After Claimant was reinstated he was credited by DOC with either 47.6 vacation days or 34 vacation days (or perhaps some number of days in between, again depending on which version is correct). Unlike the facts in the eases cited by the Respondent in its brief, the Claimant here did not lose the days for which claim is made during the time of his wrongful discharge. The days claimed were those earned in 1980 and which should have been credited to him on the day he was reinstated. The days were lost on the first day of the new year after reinstatement, January 1, 1983, pursuant to section 5 of article X of the collective bargaining agreements which were in effect at all relevant times. That section provides as follows:

“Section 5. Vacation Schedules
Subject to Section 6 and the Employer’s operating needs, vacations shall be scheduled as requested by the employee. In any event, upon request, vacation time must be scheduled so that it may be taken no later than twenty-four (24) months after the expiration of the calendar year in which such vacation time was earned. If an employee does not request and take vacation within such 24-month period, vacation earned during such calendar year shall be lost.” (Emphasis added.)

It is the Claimants position that he is entitled to be paid for the lapsed vacation days pursuant to another provision of the collective bargaining agreement, section 7(a) of article X, which provides as follows:

“Section 7. Payment in Lieu of Vacation
a) If because of operating needs the Employer cannot grant an employee’s request for vacation time within the 24-month period after expiration of the calendar year such time was earned, such vacation time shall be liquidated in cash at straight time provided the employee has made at least three requests for such time within the calendar year preceding liquidation, or it may be accumulated indefinitely subject to the provisions of this Article.”

Insofar as the Court of Claims cases cited by the Respondent are relevant to this case, they acknowledge that the theory underlying damages for back salaiy is to make the employee whole — to compensate the employee to the extent that the discharge has caused a financial loss, as stated by the Illinois Supreme Court in People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 205 N.E.2d 470. They also hold that it is incumbent upon the Claimant to establish he had a specific right to such compensation.

Claimant has established by competent evidence that between the time he was reinstated and the end of that year he lapsed vacation days he would have earned had he been working during 1980. No claim was made for any vacation days which may have arisen more than 24 months prior to the start of the calendar year in which he was reinstated. As for Claimant’s request to use those days, the following testimony by him was not rebutted:

“Q. And when did you return to work precisely, do you recall?
A. Approximately November 16th of ’82.
Q. And when you returned to work, did you make any inquiries with regard to the amount of vacation time that you had credited to your personnel file?
A. Yes, I did.
Q. Who did you talk to?
A. I talk to my supervisor and the superintendent of Illinois Youth Center, St. Charles.
Q. And what did you ask them?
THE WITNESS: I asked them how much time did I have since I came back to work and they told me that they didn’t know. I said because I didn’t want to lose any time, my time due to the new fiscal year coming in. After the fiscal year come in, then you lose a certain amount of your vacation time that you can only carry on the books so I asked quite frequendy. They kept telling me, they kept telling me they didn’t know, they didn’t know so after the first of the year, after the first of the year, they told me I had to take 17 and a half vacation days because of the year that I couldn’t carry them.
Q. All right. If they had told you that you had 17 days credited to your name as of the date you returned to work in November of 1982, would you have requested the opportunity to use those days before the end of the fiscal year?
A. Yes. I even asked about the date.
Q. And who did you ask?
A. Howard Peters, superintendent.
Q. And what did Mr. Peters tell you?
A. He told me that you didn’t think that you was coming back to work and go on vacation, did you.
Q. Okay. In other words, was it Mr. Peters’ position that you couldn’t have used the days any way?
A. Sure.
Q. Now, based on your understanding of your right as an employee, what would have happened if you had not been given the opportunity to use those vacation days before January 1st of 1983?
A. If I had asked to use them, if I had asked to use them and they denied me the using of them, then they would have paid me for them.”

From this testimony and elsewhere in the record, it appears that not only were Claimants requests denied but that he was not even told about what time he was entitled to until after the time was gone. While the reaction of Superintendent Peters was understandable after Claimants absence of nearly two years, Claimant was entitled to use the time or have the money. Anything else would be a deprivation of something he would have had as of the date of his reinstatement had he not been wrongfully discharged. To the extent that the personnel rules do not contain a provision corresponding to that in the collective bargaining agreement concerning liquidation in cash and thus may be construed as being in conflict with the contract, we find that not to be an issue where, as here, the Respondent violated the mies by not scheduling Claimants time off after requests.

We find that Claimant is entitled to an award for the lapsed vacation days under these circumstances. As for the number of days for which he is to be compensated, the preponderance of the evidence is 15 days and a gross amount of $1,056.45.

The second damages issue involves the claim for payment for overtime. Claimants position is that had he not been wrongfully discharged he would have worked overtime and in order to be made whole and not suffer any financial loss due to the wrongful discharge he should be paid for the overtime. The Respondent argues that any amount of overtime would be speculative, citing Smith v. State (1982), 35 Ill. Ct. Cl. 191.

In support of his case for overtime, Claimant introduced into evidence the provisions of the collective bargaining agreement pertaining to overtime, a list of the employees at the DOC facility from which Claimant was discharged who held the same position as Claimant (correctional transportation officer), their seniority dates, their overtime hours worked, the Claimants hourly rate of pay at all times relevant to the claim, and a statement of DOC policy concerning overtime. No witnesses were called to testify.

Overtime can be a recoverable element of damages in a wrongful discharge case. (Tavoletti v. State (1978), 32 Ill. Ct. Cl. 162.) However, the Court will not award overtime if to say that the employee would have earned it is speculative. (Smith v. State (1982), 35 Ill. Ct. Cl. 191.) The burden is on the Claimant to prove by the preponderance of the evidence that he would have earned pay for overtime but for the wrongful discharge.

The claimant in Tavoletti, supra, was employed by the Department of Transportation. Upon reinstatement after wrongful discharge he sought and was awarded compensation for overtime. The evidence in that case was that prior to his discharge he had earned a substantial amount of overtime for snow plowing and salting. There was testimony by the claimant that there was a substantial amount of overtime work on a recurring basis in each year of his employment during certain times of the year and the period of his discharge extended over those times of the year. In addition, the Court was able to take judicial notice of the climate in Illinois and the need for such work. The loss was not speculative. In Smith, supra, the Court concluded with no discussion of the evidence that the employee’s claim for overtime was speculative.

In the case at bar, we find that the Claimant has failed to sustain his burden of proof on the overtime issue. While it is clear that under the terms of the bargaining agreement he would have had the opportunity to earn overtime during the period of discharge, and it is clear that his co-workers did earn overtime, working overtime was up to the employees discretion and was not assigned on a mandatory basis unless all employees refused voluntary overtime assignments. There is nothing in evidence concerning the Claimants overtime activities prior to his discharge as there was in Tavoletti, supra. There was no testimony by the Claimant or any other evidence to show that he would have worked overtime had he been given the opportunity. There was no evidence that the overtime worked by the others in his position was mandatory due to their unanimous refusal to voluntarily work overtime or that had he been on the job overtime would have been required.

It is hereby ordered that the Claimant be, and hereby is, awarded the gross sum of $1,056.45 plus appropriate employer contributions and less appropriate employee deductions as will be detailed at a later date in an appendix to be prepared by the clerks office and incorporated herein.

APPENDIX A

Identification of the State Contributions and Deductions from Back Salary Award.

To the State Employees’ Retirement System

Employee’s contribution to State

Employees’ Retirement System 51.45

Employee’s contribution to FICA $65.50 (6.2% S.S.) $15.32 (1.45% Medicare) 80.82

State’s contribution to State

Employees’ Retirement System 58.10

State’s contribution to FICA 80.82

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal Income Tax 211.29

To Illinois Department:

Claimant’s Illinois Income Tax 26.41

To the Claimant:

Net Salary 679.83

Total Award $1,056.45


author: Sommer, C.J.

text:
    (No. 84-CC-0685
    Harry W. Kuhn Redi-Mix Concrete, Joseph Betts, and Home Insurance Co., Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1993.

    Gunty & McCarthy, for Claimants.
    Roland W. Burris, Attorney General (Thomas L. Ciecko, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This is an action for contribution by the State to the Claimants for damages for injuries caused to Steven Marple. The Claimants settled with Mr. Marple on August 19, 1983, for the sum of $190,000, and the State was specifically released on April 19, 1984. This claim was heard in oral argument on October 26, 1992, and March 24, 1993, by this Court.

The first issue to be considered, even before we examine the facts, is whether the Claimants gave proper notice as per section 22 — 1 of the Court of Claims Act, 705 ILCS 505/22 — 1.

This Court has held:

“* * ° a notice of intent to file a claim is a condition precedent to filing of a claim for contribution in the Court of Claims. In order to be timely, the notice and intent must be filed within one year of the good faith settlement and execution of a proper release, or within one year of being made a party to an underlying civil lawsuit.” (Hershey v. State (1990), 43 Ill. Ct. Cl. 108, 116.)

The Attorney General takes the position that under the language of Hershey, supra, notice would have to have been filed on or before April 19, 1985, one year from the date of release of the State. No notice was filed, so the Attorney General requests that this claim be dismissed.

We find, however, that if the claim is filed within the notice period, no separate notice is necessary. (Crosier v. State (1987), 40 Ill. Ct. Cl. 203.) The original settlement in the underlying claim was entered on August 19, 1983, and was amended nunc pro tunc to include the State as a released party on April 19, 1984. The claim for contribution was filed in this Court on September 22, 1983. Therefore, under the rule in Crosier, supra, proper notice was given.

This Court notes an inconsistency in Hershey, supra. A party bringing a contribution claim in this Court would have been a party in the underlying action and would have been a party before execution of the releases. Therefore, one year from the effective date of the releases would always be later than one year from having been made a parly. Hershey, supra, at 115, does state that the contribution claim must be brought within one year of being made a party. However, we believe that the more complete statement of the rule, which we have quoted previously, which appears in Hershey, supra, at 116, is the rule to be applied to this claim. A rule requiring the giving of notice in the Court of Claims within one year of being made a party would catch many defendants in the underlying action by surprise, as such a rule is not in the formal rules of the Court of Claims. Additionally, a defendant may not be fully aware of all the potential liabilities within a year of being made a party. As a practical matter discovery is often incomplete at that point in time.

A rule allowing notice for one year after releases have been entered in settlement does work to the disadvantage of the State, as the State does not have the opportunity to participate in the underlying action and settlement. For that reason, we hold that this Court must make a finding of and an apportionment of liability in an action in which there was no notice filed prior to the execution of releases. In the circuit court, contribution must be a part of the original or underlying action, but where the State is a defendant, that is not possible. Therefore, we find that the rule allowing notice within one year of settlement gives the best opportunity for other parties and the State to make their claims and defenses against one another.

In this claim, the State was involved in an emergency snow removal operation on Route 56, Butter-field Road, on January 21, 1979. Butterfield Road was a two-lane roadway with a single eastbound lane, a single westbound lane and a speed limit of 50 m.p.h. The area was rural and had no street lights. The goal of the snow removal operation was to remove all the snow from the south shoulder of the roadway and deposit it in a ditch which ran along the shoulder to the south.

In addition to two State-owned and operated vehicles, the State employed, by oral agreement, the services of Harry W. Kuhn Redi-Mix Concrete to aid in the operation. Pursuant to the agreement, Harry W. Kuhn provided a “Caterpillar” bulldozer-type vehicle (hereinafter referred to as Cat) and a Cat operator by the name of Joseph Betts.

The State trucks were operated by State employees Harold Engstrom and Leo Landell, respectively. The State trucks were assigned to provide protection for the Cat which was removing the snow from the shoulder of the roadway. The State trucks were entirely in the eastbound lane, one behind the other at all times prior to the incident. The trucks each occupied eight feet of the 12-foot wide eastbound lane. The trucks were each equipped with a Mars light on top, two directional lights which were mounted on top of the fenders, and headlights. As it was evening, the lights on the State vehicles were illuminating the area directly in front of the trucks and were set on high beam.

The two State trucks were approximately 40 to 50 feet apart and between them was the Cat. The Cat was equipped with a temporary Mars light mounted on the back and temporary headlights installed for the snow removal operation. The Cat was positioned at a right angle to the shoulder. The Cat would back up into the roadway and then proceed forward pushing the snow from the shoulder of the roadway into a ditch next to the road. During the course of the operation, the Cat would cross the center line into the westbound lane about one-half of the time. It is undisputed that the Cat was left entirely exposed to traffic when it entered the westbound lane. There were neither flagmen assigned to the operation nor warning signs in advance of the operation.

On one occasion when the Cat reversed over the center line into the westbound lane, the Cat was struck by a vehicle operated by Steven Marple. Mr. Marple suffered injuries as a result of the incident. Following the accident, the snow removal operation proceeded; however, the trucks were positioned so that the Cat was not exposed when it crossed into the westbound lane.

On August 19, 1983, Hariy W. Kuhn Redi-Mix Concrete and Joseph Betts reached a settlement agreement with Steven Marple in the amount of $190,000. Home Insurance Company, as subrogee, Harry W. Kuhn Redi-Mix Concrete, and Joseph Betts subsequently filed this action against the State of Illinois in the Court of Claims seeking contribution for payment made in excess of Claimants’ pro rata share of the common liability.

While the record does include a list of Steven Marple’s specials which total $50,214.63, there is no other testimony or reference to the nature, severity or permanence of his injuries.

The Claimants contend that the State was negligent in the hazardous execution of the snow removal project on January 21, 1979, at Butterfield Road, Route 56.

While it is well established that the State is not the insurer of highways, it is also clear that the State has a duty to keep highways reasonably safe. (Smith v. State (1989), 42 Ill. Ct. Cl. 19, 22.) The State has a duty to the public to use reasonable, ordinary care to maintain its roads and, while maintaining its roads, the State has the duty to exercise reasonable care so as not to create additional hazards. (Smith, supra, at 23.) Further, the State has a duty to warn if a condition is so unreasonably dangerous that a duty to warn the public or prevent the public in some manner from using that part of the roadway is necessary. Walter v. State (1989), 42 Ill. Ct. Cl. 1, 5.

Mr. Harold E. Engstrom, highway maintainer for the State of Illinois, was assigned to the highway maintenance operation on January 21, 1979. Mr. Engstrom testified that his specific assignment was to “block off the lane for traffic to protect the Cat.” However, the State did not offer any protection or warning for the Cat when the vehicle crossed into the westbound lane of traffic. There were no advance warning signs or flagmen at the operation site.

Charles Muris, formerly a city traffic engineer in charge of the design and planning division of the bureau of traffic and engineering operations for the City of Chicago, testified as an expert witness for the Claimants. The expert testified that where there is only one available lane for traffic traveling in both directions, traffic maintenance and safety require flagmen at both ends of the operation and, at night, the flagmen should be equipped with torches or lights. He testified that in the instant situation all traffic should have been stopped completely when the Cat reversed into the westbound lane of traffic. The expert further testified that a situation such as this required warning signs 500 feet in advance of the operation. It was the expert’s opinion that the trucks themselves did not give adequate warning to motorists because of the relatively short distance between the State truck and the equipment blocking the moving lane of traffic. In addition, the bright lights of the truck would actually tend to blind a motorist. The expert concluded that all the facts considered together, including the rural curved roadway, the absence of street lights, the high speed, and the fact that only one lane of the road was accessible to motorists, mandated the use of advance warning signs.

The State criticized the expert for having failed to examine the site until 10 years after the date of the incident. This argument is not persuasive in the absence of any evidence in the record that the scene of the incident changed substantially over the 10-year period and that these changes would have somehow affected or changed the expert’s opinion.

The testimony is undisputed that the trucks which were assigned to protect the Cat were approximately 40 to 50 feet apart in the roadway and that the Cat was in between the two State trucks at a right angle to the shoulder. The State did not provide motorists any warning of the hazardous condition except for the bright lights of the State trucks which may have tended to blind motorists. In the absence of an advance warning sign and/or flagmen, any vehicle traveling at 50 m.p.h. on an unlit and curved roadway would have virtually no notice that a hazardous condition existed in the west-bound roadway except for the headlights of the State truck in the eastbound lane.

The State assigned a truck with blinding headlights to the eastbound lane of traffic for the dual purpose of protecting the Cats snow removal operation and warning motorists of the hazardous conditions in the roadway. The State failed to provide motorists with any type of warning signs or flagmen in advance of the operation. It is our finding that the States failure to provide adequate protection for the Cat and the State’s failure to provide proper warning constitute negligence on the part of the State.

The Claimants must, in order to prevail, prove by a preponderance of evidence that the Respondent breached its duty and that breach proximately caused the injuries to the Claimants. (McGlynn & McGlynn v. State (1985), 35 Ill. Ct. Cl. 104, 106.) Proximate cause is any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause or the last cause or the nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury. (Definition adopted by Court from Illinois Pattern Jury Instructions.) Smith, supra.

In the present case, the State’s failure to adequately warn motorists of the hazardous condition in the roadway was clearly the proximate cause of the resulting injuries. However, this Court must examine whether the State’s negligence was the sole proximate cause or a contributing factor in the resulting injuries.

The State orally contracted with Harry W. Kuhn Redi-Mix Concrete to perform a service. The agents of the State advised Kuhn’s employee that the goal of the operation was to remove the snow from the south shoulder of the roadway and push it back as far as possible. The record is silent on whether the State required Kuhns agent to accomplish the goal in any specific manner. In the course of the operation, Kuhns agent, Joseph Betts, crossed the center line from the eastbound portion of the roadway where he was protected by a State vehicle, into the westbound portion of the roadway where the Cat was left entirely exposed to motorists. Betts testified that he looked to the left and right, checking for traffic each time that he crossed into the exposed roadway. It is clear from the record that Betts knew that he was exposed to vehicle traffic each time he crossed the center line. Betts never objected to the manner in which the operation was carried out although he “didn’t necessarily agree with it."

Harry W. Kuhn Redi-Mix Concrete provided the equipment and an equipment operator who was presumably qualified to perform the service. Betts, who had eight years’ experience as an equipment operator, acknowledged the curved roadway, the absence of protection to his vehicle when he crossed the center line of the roadway, and the bright lights of the State vehicles, yet he proceeded, without objection, to perform the service in a manner which was clearly dangerous. Betts failed to exercise reasonable care for his own safety or for the safety of others. His actions constituted negligence. The actions and omissions of the State in the present case, combined with the action of Betts, were together the proximate cause of the injury to the party herein.

Harry W. Kuhn Redi-Mix Concrete reached a “good faith” settlement with Steven Marpie in the amount of $190,000 in exchange for a release from liability for Harry W. Kuhn Redi-Mix Concrete, Betts, and the State of Illinois. Steven Marple accepted $190,000 to release the parties. It is our view that the totality of the damages were fixed then at $190,000 and as there was a “good faith” finding, the damages remain only to be apportioned between Kuhn and the State. Any amount attributable to Mr. Marple’s negligence has been factored into the settlement.

We have made the finding that both parties were negligent. We note that the complaint for contribution states that the State was 50% of the fault, that the Home Insurance Company paid $190,000 to Steven Marple on behalf of Hariy W. Kuhn Redi-Mix Concrete and Joseph Betts, and that the prayer for relief asks for $95,000.

The Claimants’ attorney has argued both in the briefs and the oral arguments that the State was entirely or mostly at fault and is liable for an amount in excess of $100,000. This argument is made on the theory that this was a “case sounding in tort arising out of a vehicle owned, leased or contracted by the State,” and in such cases the $100,000 limit does not apply. (705 ILCS 505/8.) We find that the situation in the present case was no different than the thousands of times a year that the Department of Transportation contracts with independent contractors who provide vehicles owned by them and drivers paid by them. The State outlines the goals and details of the job and sometimes participates, but does not lease or control the vehicles provided by the contractors. Therefore, the exception to the $100,000 limit does not apply in this claim.

Secondly, the Claimants’ attorney argues that there are multiple Claimants, each entitled to $100,000. We disagree. As the Home Insurance Company has paid the entire liability of Harry W. Kuhn Redi-Mix Concrete and Joseph Betts, it is subrogated to those parties’ right to contribution from the State. (790 ILCS 100/2.) Therefore, Home Insurance Company is the only Claimant with an interest. Any liability of Betts was imputed to Harry W. Kuhn Redi-Mix Concrete Company whose right to contribution became the right to contribution of the Home Insurance Company when it paid the liability. With only one Claimant with an interest, the maximum liability to the State in this claim is $100,000.

Upon examination of the record, we find that both parties were equally at fault, and that the State should contribute 50% of the settlement to the Home Insurance Company.

We therefore award the Home Insurance Company $95,000 in full and complete satisfaction of its right to contribution against the State for monies paid arising from injuries caused to Steven Marple.