text:
    (No. 81-CC-0047
    Mary Bodine, Claimant, v. The State of Illinois, Respondent.

      Order filed March 18, 1983.

    Manion, Janov, Edgar & Devens, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This cause coming on to be heard on the motion of Respondent to dismiss, and the response thereto filed by Claimant, due notice having been given, and the Court being fully advised in the premises;

This is an action sounding in tort for compensation for personal injuries sustained by Claimant allegedly caused by one or more acts of negligence by the Respondent. Respondent moved for dismissal of the claim based on Claimant’s alleged failure to comply with section 22 — 1 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.22 — 1). Said section requires that a claimant seeking compensation for pérsonal. injuries against the State of Illinois shall file within six months of the date of the injury a notice of intent to commence an action for personal injuries with the office of the Attorney General and also in the office of the clerk of the Court of Claims and that notice shall include the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, a brief description of the accident, and the name and address of attending physicians, if any.

As pointed out in Respondent’s motion, the notice attached to Claimant’s complaint is clearly deficient in that it was not filed with the Attorney General’s office or the clerk of the Court of Claims and that it does not contain all of the information required by section 22 — 1. Section 22 — 2 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.22 — 2) provides that where notice is not properly filed pursuant to section 22 — 1, any claim for personal injury shall be forever barred from further action in the Court of Claims for such personal injury. Therefore, the claim herein must be dismissed with prejudice.

In her memorandum in opposition to the motion to dismiss and her supplemental memorandum Claimant argues three points. First, it was argued that the cases in this Court which have construed sections 22 — 1 and 22 — 2 of the Court of Claims Act have indicated substantial compliance is the test of sufficiency of compliance and that Claimant has met that burden. Substantial compliance was said to have been met based upon an affidavit attached to the memorandum. The affidavit, by one of Claimant’s attorneys, recites that one week before the six-month period was to expire, affiant wrote to Robert E. Kronst, district engineer for District 5 Highway, giving in the letter notice of the accident, time and place of the accident, a description of the injuries, a description of his theory of liability in the case, and an offer to discuss settlement. By letter dated January 10, 1980, and received shortly thereafter, Mr. Kronst directed affiant to refer all claims to Robert C. Graham, Bureau of Claims, Department of Transportation in Springfield. By letter dated January 11, 1980, affiant wrote Mr. Graham a letter containing the same information that was in the previous letter. By letter dated February 10, 1980, and received shortly thereafter, a Mr. H. D. Piland, claims supervisor, responded denying the claim and suggesting that Claimant file in this Court. By that time a little more than three weeks had passed beyond the period for filing notice.

While Claimant is correct that certain previous cases have indicated that under certain circumstances claimants have not been required to strictly comply with the section in minute detail with respect to the contents of the notices, Claimant did not cite any cases nor could we find any which allowed a claimant to forego the filing of a notice with both the Attorney General and the clerk of the Court of Claims as Claimant has done here. The wording of the statute is specific. It provides that notice shall be filed in the office of the Attorney General and also in the office of the clerk of the Court of Claims. In the case of Thomas v. State (1960), 24 Ill. Ct. Cl. 137, the Claimant allegedly gave notice to two employees of the Department of Conservation but did not file a written notice with the clerk of the Court of Claims and the Attorney General, as required by the statute. In finding against the Claimant, the Court pointed out:

“It is obvious that claimant’s position is untenable. The State of Illinois operates through many depártments, and employs thousands of employees. It may well be that a report of the accident was filed with the Department of Conservation, but such a report could not be regarded as a notice to the Attorney General and the Clerk of this Court.” Thomas, supra, at 139.

In Munch v. State (1966), 24 Ill. Ct. Cl. 313, the Claimant urged the Court to deny a similar motion to dismiss raised by the Respondent on the grounds that it had notified at least two agencies of the State of Illinois of the accident within 30 days of the occurrence although no notice was filed with the clerk of the Court or the Attorney General. The personal injury counts of the claim were summarily dismissed.

It is also well established that service of the notice on either the Attorney General or the clerk of the Court but not both will not suffice in meeting the requirements of the statute. (See Byrne v. State (1980), 34 Ill. Ct. Cl. 248.) In the instant case we hold that Claimant has not complied with the notice statute.

Prior to the filing of Claimant’s supplemental memorandum, Respondent cited the case of McChesney and Baker v. State (1918), 4 Ill. Ct. Cl. 5, for the proposition that a State officer is without the power to waive or arrest the running of the statute of limitations on a claim against the State. In that case it was alleged that a letter sent to the Claimants by the State Auditor constituted a new promise to pay or an acknowledgment of the debt thereby arresting the running of the statute of limitations. On this issue the specific holding of the Court was as follows:

“We hold that this letter does not constitute an acknowledgment of the debt or a promise on the part of the State of Illinois, to pay this claim, and that James J. Brady, Public Auditor, had no authority to make a new promise for the State, or to, in any way arrest the running of the Statute of Limitations. If he did make such promise, that the contents of the letter would be insufficient to constitute a new promise or acknowledgment, if said Brady had authority to make a new promise on behalf of the State.
# # #
We hold that in a Court of Claims it is not necessary that the Statute of Limitations should be specially pleaded; that the Attorney General has no authority under the law, in any manner to waive or arrest the running of the Statute of Limitations in favor of the State.” Baker, supra, at 6, 7.

In reaching that conclusion the Court applied the rule announced in Finn v. U.S., 123 U.S. 227, in which Justice Harlan, who delivered the opinion of the Court, stated as follows:

“The general rule that the limitation does not operate by its own force as a bar, but is a defense, and that the party making such a defense must plead the Statute, if he wishes the benefit of its provisions, has no application to suits in Court of Claims against the United States. An individual may waive such a defense, either expressly or by failing to plead the Statute, but the Government has not expressly or by implication, conferred authority upon any of its officers to waive the limitation imposed by the Statute upon suits against the United States in a Court of Claims. Since the government is not liable to be sued as of right, by a claimant, and since it has consented to a judgment being rendered against it only in certain classes of cases brought within the prescribed period after the cause of action accrued, a judgment in the Court of Claims for the amount of the claim, which the record or evidence shows to be barred by Statute, would be erroneous.”

In Claimant’s supplemental memorandum in opposition to the motion to dismiss she called our attention to a relatively recent appellate court case containing a current discussion of the issues of waiver and estoppel. In Louise v. Department of Labor (1980), 90 Ill. App. 3d 410, the court stated generally that:

“The law disfavors estoppel against governmental entities. The sound governmental functions. (Hickey v. Illinois Central Railroad Co. (1966), 35 I..2d 427, 220 N.E.2d, 45, cert, denied (1967), 386 U.S, 934, 17 L.Ed2d 806, 87 governmental functions. (Hickey v. Illinois Central Railroad Co. (1966), 35 Ill.2d 427, 220 N.E.2d, 45, cert, denied (1967), 386 U.S. 934, 17 L.Ed.2d 806, 87 S.Ct. 957. Our supreme court has stated however, that this governmental immunity is qualified and that estoppel may be invoked against a governmental body iff certain instances.” (90 Ill. App. 3d 410, 414.)

An instance where the State would be estopped due to actions of an agent would be very rare, although we are not prepared to rule it out entirely. Although we tend to agree with the result reached in Louise, we do not necessarily agree with how it was reached. The plaintiff-appellant in Louise was a victim of a rather bizarre series of events. She had been determined by a claims adjuster to have been ineligible for unemployment benefits. According to the provisions of the governing statute, unless such a person, within nine days after notice of a determination of ineligibility was mailed to his or her last known address, files an appeal, the determination of ineligibility becomes final. She went to the proper office and stood ready and willing to file a timely appeal but was prevented from doing so by certain affirmative acts of the defendant-appellee’s employee. There was evidence that the office was being moved and her file could not be located. Upon returning at a date beyond the nine-day period but at a time given by the person who refused to allow her to file initially, she was told that she could not file.

The situation in Louise is very different from the case at bar. No one affirmatively prevented or refused to allow the Claimant to file her notice of intent. Nobody had any responsibility to inform Claimant of the requirements of section 22 — 1 of the Court of Claims Act. Having examined the record we cannot say that the words or actions or both of the Respondent’s employees can be construed to constitute a waiver or operate as an estoppel.

Wherefore, it is hereby ordered that this claim be, and hereby is, dismissed.


source: Caselaw Access Project

author: Roe, C. J.

license: Public Domain

text:
    (No. 81-CC-0552
    Clifford A. Burns, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 21, 1982.

    Clifford A. Burns, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a tort action brought by Claimant, Clifford A. Burns, an inmate at Menard penitentiary, against the State of Illinois for personal injuries. The complaint states that Claimant was injured on April 2, 1980, while he was employed at his job at Menard penitentiary in the welding shop. As he was reaching for some gloves on a rack, a round piece of steel rolled off the rack and injured Claimant’s left foot. Claimant charges Respondent with careless negligence and wilful and wanton acts in that he was not provided with safety shoes and was not provided with a safe place of employment. Claimant seeks damages from Respondent in the sum of ten thousand dollars ($10,000.00).

Claimant testified that his job at Menard was a welder. (Trans. 4.) Claimant testified that “someone just forgot to put the steel stops down inside this rack.” (Trans. 6.) Claimant described the piece of steel that had struck his foot as weighing approximately 400 pounds.. (Trans. 7.) Other inmates were responsible for placing the steel in the rack. (Trans. 8.) Claimant had not noticed the condition of the steel getting stacked too high. (Trans. 8.) There was nothing that would have prevented Claimant from noticing that the steel was stacked too high, but he “just didn’t look.” (Trans. 8.)

Claimant broke the big toe on his left foot and stated that the weather “bothers it just a little bit” and that sometimes “the toe gets numb.” (Trans. 9.) Claimant does not limp or have discomfort in the toe as he walks. (Trans. 10.) Claimant stated there was nothing he could do physically before the accident that he couldn’t do at the time of the hearing. (Trans. 10.)

Claimant testified that prior to this accident he had asked the people at the welding shop whether steel-toed shoes were furnished. (Trans. 12.) He asked for steel-toed shoes from the clothing house and was advised that he could not obtain them. (Trans. 12.)

Officer Bowen, in charge of security in the welding shop at the time Claimaint was injured, testified that he could not remember Claimant requesting steel-toed shoes. (Trans. 27.)

Officer Brown testified that he did not remember Claimant requesting a pair of steel-toed shoes and thought that he would remember something like that had it occurred. (Trans. 32.) Officer Brown testified that he could remember exactly the kind of shoes that Resident Burns wore while in the welding shop because he considered the tennis shoes worn by Claimant to be an unsafe practice. (Trans. 34.) Officer Brown testified that in addition to his job in overseeing the conduct of inmates so they didn’t injure each other or obtain contraband, he was responsible to see to it that the employees or residents of the facility did not get injured or hurt. (Trans. 34-35.) When he observed the kind of shoes that the Claimant repeatedly wore to his job, he considered that to be unsafe. (Trans. 35.) On one occasion he asked the Claimant why he wore tennis shoes to work. He did not remember Claimant’s response. (Trans. 35.) Brown testified that he had authority to a certain extent to direct inmates to do or refrain from doing certain actions which were considered to be dangerous. (Trans. 35.) Officer Brown said he had a right to bring a halt to any condition which he thought would create a. danger to inmates. (Trans. 35.) Officer Brown testified that he knew of no regulation regarding footwear and that the inmates could “wear anything on their feet they wanted to.” (Trans. 36.) Officer Brown testified that when he observed the condition that Claimant’s footwear was unsafe, he did nothing about it. (Trans. 37.) Furthermore, Officer Brown testified that he had made no recommendation to his supervisor or to correctional officers in the chain of command that the inmates working in the steel shop be provided with some sort of adequate footwear to protect against injury. (Trans. 38.)

The State of Illinois is required to exercise, the same standards of care and safety as would be required of private industry. (McGee v. State of Illinois (1977), 31 Ill. Ct. Cl. 326, Hoskins v. State of Illinois (1965), 25 Ill. Ct. Cl. 234, 237.) It is clear in the case at bar that Claimant was not furnished with proper protective footwear for the job to which Claimant was assigned by the Department of Corrections. Furthermore, Claimant’s supervisors were aware of the dangerous condition created by the lack of appropriate footwear and did nothing to correct the situation. The evidence is in conflict as to whether Claimant affirmatively requested protective footwear or not; the evidence is not in conflict, however, as to the point that the footwear being utilized by inmates occupying Claimant’s job position was inadequate and danger-, ous and that this condition was known and recognized by those in charge of safety and supervision.

Under these circumstances, it appears that Claimant has demonstrated that the State was negligent. However, Claimant testified that the condition by which he was injured was a condition which would have been readily apparent to him had he observed the manner in which the steel was stacked on the steel rack at the time that he approached the rack. Claimant testified that he just didn’t look. Claimant was an experienced welder and testified that he was well acquainted with the hazards and dangers of his job. We find, therefore, that Claimant’s negligence in connection with the injuries sustained by Claimant was at least 50%.of the cause of this injury.

Under the new standard of tort responsibility as previously announced by the Illinois Supreme Court in Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886, we find that Claimant’s damages in total were in the sum of $1,500.00 and that due to his comparative negligence it is found that Claimant is due the sum of seven hundred fifty dollars ($750.00) under the rule announced in the Alvis case.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $750.00.


text:
    (No. 81-CC-0557
    Catholic Cemeteries, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed September 8, 1981.

      Order filed July 29, 1982.

      Order on stipulation filed May 23, 1983.

    Garretson & Santora, for Claimant.
    Neil F. Hartigan, Attorney General (Lynn W. Schock, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Roe, C. J.

This matter coming to be heard upon the motion of Respondent to dismiss and the objection thereto filed by Claimant, due notice having been given, and the Court being fully advised, the Court finds:

1. That Claimant is suing in his own right and not as subrogee Gallagher Basset Insurance Company.

2. That Claimant received from Gallagher Basset Insurance Company the sum of $3,407.00.

3. That the State is entitled to a set-off for any insurance received by the Claimant.

4. That as Claimant can receive no more money here than he has already received from the insurance company, the complaint fails to state a cause of action.

It is hereby ordered that the instant claim be stricken and dismissed, with prejudice.

ORDER

Roe, C. J.

This cause coming on to be heard on the Claimant’s motion to vacate and petition for rehearing, Respondent’s response to Claimant’s motion to vacate and petition for rehearing, Claimant’s reply to Respondent’s response to motion to vacate and petition for rehearing, Respondent’s supplemental response to Claimant’s motion to vacate and petition for rehearing, Claimant’s reply to Respondent’s supplemental response to Claimant’s motion to vacate and petition for rehearing, and Respondent’s response to Claimant’s reply to respondent’s supplemental response to Claimant’s motion to vacate and petition for rehearing, (the last named document having been filed on two different occasions, the second of which contained a supplemental certificate of service), it appearing to us that due notice has been given, and the Court being fully advised;

The genesis of the matter now before us was our order of September 8, 1981, wherein we dismissed the claim with prejudice. The evidence indicated that Claimant had received funds from an insurance company by reason of the incident complained of and for the entire amount claimed. Our ruling was consistent with section 26 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.24 — 6) and currently prevailing case law based on the facts and arguments on record at the time the order was entered.

Following this order we were virtually inundated with paper as the parties battered about a simple technicality. It all could have been avoided by filing the claim in the name of the party suffering the loss. At the time our order was entered it appeared on the record that Catholic Cemeteries had suffered no loss because of the insurance proceeds. It appeared further that Gallagher Basset Insurance Company should have been named or added as Claimant. The rule followed in this Court prevents windfall recovery over and above the amount of the loss. Subrogated parties are named. The danger of potential prejudice of jurors toward insurance companies is nonexistent because there is no jury.

In its response to the motion to dismiss, the Claimant, in the alternative, asked leave of the Court to amend its complaint to show the insurance company as subrogee. In the ordinary course this would have been allowed. However, the Claimant filed said response more than two weeks after the period allowed by the Rules of the Court of Claims. On the same day as it was filed, our order of dismissal was filed.

Now it appears that the funds paid by the insurance company belonged to the Archdiocese of Chicago and were out of a self-insurance fund which was only administered by the insurance company. It also appears that the Archdiocese and Catholic Cemeteries are one and the same. Therefore there is no need to amend the complaint.

It is hereby ordered that our order of September 8, 1981, be, and hereby is, vacated; it is further ordered that Respondent’s motion to dismiss be, and hereby is denied.

ORDER ON STIPULATION

Roe, C.J,

This matter coming before the Court on the joint stipulation of the parties, and the Court being fully advised in the premises;

It is hereby ordered, adjudged, and decreed that an award of $1,700.00 be and hereby is made to Claimant and the stipulation of the parties be incorporated into this order.


text:
    (No. 81-CC-0563
    Larry Blount, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 4, 1982.

    Larry Blount, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This cause coming on to be heard on the motion of Respondent to dismiss, it appearing that due notice has been given, and the Court being fully advised in the premises;

This is a claim by an inmate of a State correctional facility for compensation for lost property. The basis of the Respondent’s motion is that the Claimant failed to allege sufficient facts to impute negligence or breach of duty by the State. We have traditionally not required incarcerated persons to strictly comply with all the intricacies of pleading in these types of cases but tend to examine the complaint to see if it conveys an understandable account of the circumstances constituting what the claimant believes to be a cause of action. If it is so lacking as to not meet this lesser standard we dismiss the complaint with leave to plead over.

In the case at bar the complaint alleges the following facts. On January 30, 1980, at approximately 4:30 a.m., the Claimant was released from his cell by an officer using a key, for the purpose of reporting to the kitchen for work detail. Upon leaving, his cell was double-locked by the officer. Upon returning from work detail, he and the officer escorting him discovered that his cell had been taken off deadlock status and that certain items of personal property were missing.

The Claimant further alleged that in order for someone to enter his cell it would be necessary for the door to be removed from double-lock status and that the only persons having access to keys are correctional officials. He stated that the loss occurred by reason of the Respondent’s negligence and that he had exhausted all administrative avenues of relief to no avail.

As required by the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 1 et seq.), Respondent specifically pointed out the alleged defect in the complaint. Respondent argues that the above facts do not constitute a cause of action against the State because there was no allegation that the State or its agents ever came into exclusive possession of the property and that, as a matter of law, the State is not liable absent a showing of exclusive possession. (Doubling v. State (1976), 32 Ill. Ct. Cl. 1.) Respondent also filed a departmental report compiled by the warden at Pontiac Correctional Center where Claimant is incarcerated, apparently for the purpose of showing that, as a matter of fact, the missing personalty was not in the exclusive possession of the Respondent.

The departmental report does not indicate that Respondent did not come into exclusive possession of the property but corroborates the facts alleged by the Claimant. Additional facts were contained in the incident report which was part of the departmental report. The incident report, compiled and signed by a correctional officer and also signed by two reviewing employees and the chief administrative officer, reads in part as follows:

“On this date and time (January 30, 1980, 11:30 a.m.) I went to let . . . (the Claimant) ... in his cell .... When I went to open the door both resident Blount and myself noticed the cell was off deadlock. Resident Blount’s cell was on deadlock all morning as he was working and he has no cellmate. C.O.T. Jordan showered the kitchen workers before taking them to work. I was at lunch during this period and resident Blount’s cell was definitely on deadlock before I left because I make sure all empty cells are on deadlock at all times, unless the residents in the cell instruct me not to put their cell on deadlock before they leave.”

A search of the cellhouse failed to turn up the property. The officer in charge has denied taking the cell off deadlock.

Doubling v. State, supra, cited by Respondent, held only that the Claimant therein stated a cause of action by alleging sufficient facts which, if proven, constituted a bailment. In that case it was alleged that property was delivered to an agent of the Respondent, that it was not returned to the Claimant, and the Respondent did not use reasonable care to insure its return. The Court, by Chief Justice Perlin, distinguished the situation in Doubling from that in Bargas v. State (1976), 32 Ill. Ct. Cl. 99, by stating that Bargas held that the State does not owe a duty to inmates of its penal institutions to safeguard property which they keep in their cells from pilferage by other inmates. In effect, the only type of cause of action Respondent would have us recognize in cases where inmates have lost property while incarcerated would be the bailment situation.

Doubling and Bargas are not so limiting. In Bargas, supra, at 100, the Court specifically noted that the Claimants in that case did not “contend that agents of the Respondent took their property, or acquiesced in its disappearance.” (Emphasis added.) It was a case where the Claimants sought to charge the State with the broad responsibility of preventing acts of pilferage by other inmates. The Court stated:

“We can find no basis for imposing such a burden on the State. The State is not an insurer of an inmate’s property and cannot be responsible where other inmates engage in criminal acts directed at that property. Nor can the State in the exercise of reasonable care be expected to prevent isolated acts of pilferage in the environment of a penal institution.” Bargas, supra, at 100.

Since those two cases were decided, we have consistently followed those holdings in our decisions. However, cumulative precedential effect of those decisions is not to be interpreted to mean that, unless a bailment relationship is alleged or established by the evidence, the loss of an inmate’s property is not compensable. In most of those loss-of-property cases where recovery has been denied, a bailment relationship was not established, or if established, the Respondent met its burden of showing freedom from negligence. In those cases where a bailment was not established, negligence of the Respondent was either not properly alleged or not proven. Often the burden of proving negligence of the Respondent by the preponderance of the evidence was not met by the Claimant due to issues of fact, duty, and causation, especially where more than one inmate resided in the same cell.

Also, we have expressed reluctance to interfere with the internal procedures and management of the prisons. We do feel that judicial restraint on the part of the Court of Claims must be exercised in this area so as not to hamper effective prison management. We still concur with the statements expressed by the Court in Bargas, quoted above. However, we note with concern an increase in the number of complaints filed setting forth facts similar to those alleged or evidenced in the case at bar.

In a properly pleaded and proven case the State can be held liable for the loss of an inmate’s property notwithstanding the existence or nonexistence of a bailment relationship. To hold otherwise would be to condone irresponsibility and/or complicity on the part of prison authorities. In the case at bar it was not alleged that another inmate stole the missing property.

With respect to this case we find that the Claimant has failed to state a cause of action. The complaint is lacking in that it fails to allege what the duty of the State was.

It is hereby ordered that this case be, and hereby is, dismissed with leave to file an amended complaint within 30 days of the date of this order.


author: Poch, J.

text:
    (No. 81-CC-0859
    Frank J. Even, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 17, 1983.

    Edward R. Vrdolyak, Ltd. (William J. McCann, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Sandra Andina, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

Claimant, Frank J. Even, has brought this action seeking damages for personal injuries and property damage arising out of a collision between his vehicle and a snowplow being operated by Michael J. Kaminen, an employee of the State of Illinois.

The incident occurred on January 21, 1980, at about 9:30 p.m. Claimant was traveling in a westerly direction on Route 120 and approaching its intersection with Route 134, while Michael J. Kaminen was traveling in an easterly direction. Route 120 is a public highway located in Avon Township in Lake County, Illinois. At the time of the incident, Route 120 was covered with ice.

Claimant testified that he had spent the evening visiting friends, and at the time of the accident was on his way home to McHenry, Illinois. When he started for home after 9:00, the roads were slippery. It had rained and was freezing. Due to the hazardous conditions of the road he was traveling between 30 and 35 miles per hour.

He was westbound on Route 120 when he first saw the snowplow eastbound about 100 to 150 feet in front of him. The State vehicle was a dump truck with a salt bed and snowplow attached in front, and as it proceeded toward him it was occupying the entire middle of the roadway.

On seeing the snowplow coming down the middle of the road, he immediately pulled off the road into the ditch of the westbound lane. He assumed that he was hit by the plow of the truck. The car was a total wreck.

Michael J. Kaminen, the driver of the truck, testified that he was driving a three-ton International truck with a snowplow attached. The plow is approximately three feet high, eight feet wide, runs at an angle and can be lifted and lowered. That evening he was directed to plow snow and spread salt where necessary on his assigned route. At the time of the accident, he was eastbound on Route 120 going towards Grayslake. The temperature had fallen and the road became slippery and icy. Route 120 is a two-lane highway with each lane about 100 feet wide. The left side of his plow was two feet from the center lane and the right side was at the edge of the pavement.

There were automobiles ahead of him and he and the other automobiles were traveling 15 to 20 miles per hour. The road was straight and level. When he first saw Claimant, Claimant’s car was the fourth car in a line of oncoming westbound traffic. Claimant’s car was starting to fishtail. The front end of Claimant’s car was fishtailing back and forth into the east-bound lane. Kaminen watched Claimant from the first time he saw him fishtail to the point of impact. Claimant was traveling sideways down the road. Claimant tried to right the vehicle in a westerly direction and the back end of the car swung into the eastbound lane. Claimant’s car from the driver’s door to the rear of the car came into contact with the left rear duals of the truck. Neither at the time of the impact nor at any time prior to the impact was any part of the plow or the truck in the westbound lane.

Kaminen stated that he did not apply his brakes prior to the accident because of the icy condition of the pavement, but he tried to angle his truck off to the right. From the first time he saw Claimant until the time of the impact, some part of Claimant’s car was in Kaminen’s lane.

David Seilinger, one of three occurrence witnesses testified that he was the driver of a pick-up truck traveling 25 miles per hour eastbound on Route 120, when he first became aware of Claimant. Claimant was passing him at a speed of between 40 and 45 miles per hour. When he came upon him again, Claimant was parked crosswise in the middle of the road and Seilinger had to go off the roadway about three or four feet to go around him. The whole road was a sheet of ice. Seilinger had travelled about a quarter of a mile when he was passed by the snowplow travelling eastbound in its own lane, going slow and salting.

In the meantime, Seilinger was watching Claimant in his rear view mirror. Claimant had righted his car and was approaching at a speed of 40 to 45 miles per hour. As the snowplow passed Seilinger, Claimant’s car was about 20 to 30 yards to the rear of Seilinger. When the snowplow passed, Seilinger started to slow down because he thought a collision would take place. He watched the collision in his rear view mirror. The collision occurred in the snowplow’s lane with the snowplow in its own lane. Seilinger’s testimony was corroborated by Wade A. Neivdall and Herman F. Skokie, both of whom were in Seilinger’s truck.

The accounts of the three occurrence witnesses vary in certain respects, but taken as a whole substantiate convincingly the testimony of Kaminen, the truck driver, that he was travelling in his own lane and that Claimant fishtailed into the wrong lane and collided with the snowplow.

From the testimony in the record it is clear that Claimant has failed to prove by a preponderance of the evidence that Respondent was guilty of negligence.. On the contrary, the preponderance of the evidence, if not the manifest weight of the evidence, is that Claimant’s failing to have his car under control and driving on the wrong side of the road was the proximate cause of the accident.

Claim is denied.


text:
    (No. 81-CC-0879
    Marion Dennis Hitt, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 3, 1982.

    John Doyle, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a claim for damages resulting from personal injuries the Claimant suffered when he encountered a hole located in a grassy area of Moraine Hills State Park on June 12, 1980. Hearings were conducted before Commissioner Robert E. Cronin. The testimony introduced was of the Claimant, John Schweder, park superintendent for the Moraine Hills State Park, Timothy Dusthimer, maintenance worker for the State of Illinois Department of Conservation, and Wilfred Blake, supervisor of maintenance workers at Moraine Hills State Park. Additionally, various documents were received in evidence and are a part of the record.

The following salient facts herein summarized were established by Commissioner Cronin and duly reported to the Court:

Claimant, Marion Dennis Hitt, sustained a fracture to his left ankle when he encountered a hole located in a grassy area of Moraine Hills State Park on June 12, 1980. Claimant was at the time in the Moraine Hills day use area of the park. It was used, equipped and intended primarily for picnickers and barbecuers.

Claimant submits in his brief that the danger in question was a “hidden, non-obvious danger”.

It is almost axiomatic that, before the State can be held liable for an injury on property maintained by it, it must have actual or constructive notice of the dangerous or hazardous condition. (Finn v. State (1962), 24 Ill. Ct. Cl. 177.) In the instant case, the Claimant failed to establish any notice, actual or constructive, to the State of Ilinois of the hole into which Mr. Hitt fell. Accordingly, the claim of Marion Dennis Hitt is hereby denied.


text:
    (No. 81-CC-1099
    Rebecca Fleischer, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 24, 1983.

    Larry L. Fleischer & Associates, Ltd. (Kenneth Fleisher, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Sandra Andina, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a claim by Rebecca Fleischer to recover damages for personal injuries which Claimant sustained on March 6, 1980, when she slipped and fell on the stairs at the State of Illinois building at 160 North LaSalle Street, Chicago, Illinois.

The cause was assigned to a commissioner of the Court for presentation of evidence. The parties entered into certain stipulations wherein documentary evidence consisting of Claimant’s deposition, medical reports, hospital records and photographs of the staircase in the State of Illinois building was admitted.

The evidence admitted pursuant to stipulation is summarized as follows: On March 6, 1980, Claimant, Rebecca Fleischer, seventy-three years of age, visited the State of Illinois building at 160 North LaSalle Street, Chicago, Illinois, to attend to tax matters. There was a light snow that day and about an inch of snow had accumulated outside the building. She entered the building and proceeded up the stairway to the Department of Revenue. As she climbed the stairs, she noticed that they were wet. About 20 minutes later, she left the Department of Revenue and went down the stairs when she slipped on the third or fourth step and fell forward sustaining injuries to her knees and elbow.

Both sides agree that Claimant was a business invitee on the premises and that Respondent owed Claimant a duty of ordinary care in maintaining the premises in a reasonably safe condition.

The issue is whether the State of Illinois used reasonable care to maintain the stairway in a reasonably safe condition.

Reasonable care and caution to keep premises safe for invitees does not extend to require the use of all measures to remove all risks from the path of the invitee.

In Schaub v. State, 26 Ill. Ct. Cl. 344, this Court held that one who owns or is in control of property is not an insurer of the safety of an invitee.

Claimant advances two theories on which negligence is claimed: The first is that Respondent was negligent in allowing the stairs to become wet.

In Duble v. State, 26 Ill. Ct. Cl. 87, in denying the claim, the Court stated that it is common knowledge that, when it is snowing and there is snow on the ground, people entering the building will necessarily carry some moisture on their feet, which will cause the floor inside the building to become damp and more slippery than a dry floor. Claimant testified that it was snowing and that she was aware that the steps were wet. Because of the wet condition of the steps caused by the snow, the possibility that Claimant might slip and fall while climbing the stairs was a normal, obvious and ordinary risk at the time in question, and Claimant, as an invitee, assumed all such risks when she entered the building, Duble v. State, 26 Ill. Ct. Cl. 87, 91.

The second theory is that the State was negligent in that it knowingly permitted worn marble steps to remain for the use of patrons of a building. The only evidence introduced by Claimant to support this contention was her own testimony that the steps were plain marble that she thought were on an angle. Respondent introduced photographs of the steps in question, but these pictures do not support Claimant’s contention.

Claimant’s second theory fails due to insufficient evidence.

It is the opinion of this Court that Claimant has failed to show by a preponderance of the evidence that Respondent, State of Illinois, was negligent in maintaining the stairs in the State of Illinois building at 160 North LaSalle Street, Chicago, Illinois, on March 6,1980.

Claim is denied.


text:
    (No. 81-CC-1058
    Stephen R. Thomas and Kristina Thomas, his wife, Claimants, v. The State of Illinois, Respondent.

      Order filed September 24, 1982.

    Strom, Strom, Oakley & Ellis, for Claimants.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court on joint stipulation of the parties to entry of an award in favor of Claimants. The Court being duly advised, hereby finds as follows:

1. Claimants were the owners of a piece of property consisting of a house, a lot, and several black locust and other trees, located at 392 Business Route 20 (Northeast corner of Shaw Road and Business Route 20), Belvidere, Illinois.

2. The trees formed the northern perimeter of Claimants’ property. On the northern side of the trees was Respondent’s right-of-way and Route 20, a heavily travelled road.

3. The trees formed a sight and sound barrier between Claimants’ property and Route 20, as the right-of-way was situated on a steep slope below the property.

4. The black locust trees sent out an extensive root system; from this root system emanated several offshoot, or volunteer black locust trees which sprouted on the steep slope of Respondent’s right-of-way.

5. The volunteer trees had to be removed because continual mowing of the steep slope around them would have caused serious erosion.

6. Respondent used herbicides to remove these volunteer trees, but the herbicides were applied over so wide an area as to kill the eight black locust trees located on Claimants’ property.

7. The proper measure of damages in this cause is the difference in the fair market value of the property with and without the trees.

8. The parties have stipulated that the difference in fair market value in this case amounts to $2,500.00.

Therefore, it is hereby ordered that Claimants be and hereby are awarded $2,500.00 (two thousand five hundred dollars) in full and final satisfaction of their claim.


text:
    (No. 81-CC-1163
    Mary M. Anderson et al., Claimants, v. The State of Illinois, Respondent.

      Order filed July 29, 1982.

    Mary M. Anderson et al., pro se, for Claimants.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This cause coming on to be heard on the stipulation of the Respondent and the Court being fully advised in the premises finds that this is a claim for payroll funds withheld for the purpose of paying annuity premiums which funds, as a result of the invoice voucher being misplaced, were never paid over to the annuity company as they were supposed to have been.

It is therefore ordered that the Comptroller pay over to the IDS, Box 499, Minneapolis, Minnesota 55440, the sum of two hundred and 00/100 ($200.00) dollars on behalf of employees as follows:

Mary M. Anderson $50.00

Glenda K. Becker 50.00

Janet Pyers 25.00

Howard P. Wahl 75.00


text:
    (No. 81-CC-1282
    Kenneth Tam, Claimant, v. The State of Illinois Respondent.

      Opinion filed August 12, 1982.

    Stephen J. Broussard, for Claimant.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim for the return of an automobile or its reasonable value which was allegedly seized illegally from Claimant on December 12, 1978. A hearing was held before a commissioner of the Court on October 21, 1981, wherein the evidence was taken. On March 23, 1982, oral argument was held before the full Court sitting in special session in Chicago, Illinois.

Mr. Tam, the Claimant herein, testified that he purchased a certain 1976 Pontiac automobile on August 5, 1977, from A & D Auto Rebuilders, that he paid the sum of $4,725.00 for the automobile and an additional $150.00 for a battery and tires, and that he received a title to the vehicle from the Secretary of State following the purchase.

On December 12, 1978, the State police seized the vehicle from the Claimant without a warrant and retained possession for some time. The record is unclear as to its current whereabouts. Mr. Tam delivered the original certificate of title issued by the Secretary of State to an assistant State’s Attorney at a grand jury proceeding. Other than testifying before the grand jury, Claimant has not been called as a witness in any criminal action. Admitted into evidence without objection were Claimant’s exhibit A, being a bill of sale for the automobile, Claimant’s exhibit B, being a State of Illinois tax form, and Claimant’s exhibit C, being a copy of the Illinois certificate of title showing ownership in the Claimant’s name.

The Respondent produced no witnesses but offered into evidence the police report pursuant to Rule 14 of the Rules of the Court of Claims. The Claimant promptly objected to its admission and reiterated his objection at oral argument. Over that objection the commissioner hearing the case admitted the police report, stating its admission was “for whatever value it has.” (Hearing tr. 14, lines 12,13 and 19, 20.)

We have carefully considered this evidence issue and it is our holding that police reports are inadmissible as evidence under Rule 14 in a case such as this. Rule 14 reads as follows:

“All records and files maintained in the regular course of business by an department, commission, board, agency or authority of the State of Illinois, and all departmental reports made by any officer thereof relating to any matter or case pending before the Court shall be prima facie evidence of the facts set forth therein,. . .”

The rule is a corollary to and an expansion of Supreme Court Rule 236. (Ill. Rev. Stat. 1977, ch. 110A, par. 236.) Supreme Court Rule 236 governs the admission of business records into evidence in proceedings before the triers of fact in the courts of the judiciary of this State. If certain tests for guarantees of reliability, accuracy, and trustworthiness are met, the records are admissible. The Rules of the Supreme Court of Illinois are incorporated by reference and made a part of the Rules of the Court of Claims by Court of Claims Rule 2, except to the extent the Court of Claims provides otherwise. Court of Claims Rule 14 expands the supreme court rule in that it elevates the weight of the evidence to prima facie evidence of the facts set forth in the documents described in the rule.

Economy and efficiency are the purposes behind Rule 14. The government of the State of Illinois is an extremely large, diverse, and widespread operation. In order for the Court of Claims to function on a practical level Rule 14 was necessary. The prima facie nature of the records, files, and departmental reports compiled from such records enables us to resolve claims more quickly with less work and expense for the parties. Departmental reports are especially invaluable in the lapsed appropriation claims.

The admission of business records into evidence is an exception to the hearsay rule. The exception was created because, assuming a proper foundation is laid, the records have certain circumstantial probabilities of trustworthiness, not common to ordinary hearsay, which make them a practical substitute for cross-examination of the persons who actually create the records. Rule 14 evidence was accorded prima facie weight because the records of the State of Illinois have that much more probability of trustworthiness than Rule 236 evidence.

Rule 236(b) does not expressly bar the admission of police records per se but excludes the applicability of the business record exception contained in Rule 236(a) to accident reports. The exclusion from evidence of police records is governed by common law. (Handbook of Illinois Evidence, Edward W. Cleary and Michael H. Graham (1979), p. 448.) Police records such as the one offered into evidence in this case consist of summary and details of information and speculation gleaned from an investigation. Many aspects of them are double hearsay. If offered to prove the truth of the statements contained therein they contain none of the circumstantial probabilities of trustworthiness associated with business records. Respondent argues that the report in this case was of the Department of Law Enforcement and not just a mere police report. (Oral argument tr. 11, lines 10, 11.) We think that the fact that the police report in this case was compiled by the Illinois Department of Law Enforcement, an agency of the State, does not somehow make the conclusions and facts stated therein so much more reliable that we should not disallow its admission, as would be done in the circuit courts, but admit it and then treat it as prima facie evidence.

Not only is the rationale behind admission of business records lacking with a police report, the purposes of economy and efficiency behind Rule 14 in the handling of cases in the Court of Claims are far outweighed by the problems of the hearsay nature of such reports. The effect of admission of evidence under Rule 14 is to shift the burden of going forward with the evidence. In this case the Respondent would have had the Claimant subpoena the potential witnesses from the information in the police report, confront them at the hearing, and then rebut prima facie evidence by proving the negative. This is an unfair burden to place on the Claimant in this type of case. The prima facie nature of Rule 14 evidence and its effect on the burden of proof necessitates our use of caution in guarding against its potential for abuse.

This opinion is not to be construed in any way as a reflection on the Department of Law Enforcement. Its records, files, and departmental reports will continue to be admitted as Rule 14 evidence in the same manner as those of other State agencies.

Based upon the evidence, we find that the Claimant has proven the allegations in his complaint. The damages sustained by the Claimant are the sum of $4,725.00, the purchase price, and $150.00 for improvements, less reasonable depreciation from August 5, 1977, the purchase date, to December 12, 1978, the date of the seizure. Although no direct evidence was submitted as to the depreciation, we find $1,000.00 to be a reasonable amount of depreciation. It is hereby ordered that Claimant be, and hereby is, awarded ths sum of $3,875.00.


text:
    (No. 81-CC-1441
    Thorleif Larsen & Son, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed July 15, 1982.

    Johnson, Cusack, Bell, O’Halloran & Demaret, Ltd, (James O’Halloran, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This is a claim for the sum of $80,872.26 for masonry work performed for the Capital Development Board, an agency.of the State of Illinois.

Claimant is engaged in the masonry construction business and, as the low bidder, was awarded CDB contract No. 7-1329-41 for exterior masonry work and CDB contract No. 7-1528-47 for interior masonry work for portions of the work for the construction of the new Jefferson High School in Rockford, Illinois.

At the hearing herein Claimant established that it performed all the work under the contracts.

It is therefore ordered that Claimant be, and hereby is awarded the sum of eighty thousand eight hundred seventy-two and 26/100 dollars ($80,872.26) in full satisfaction of its claim.


text:
    (No. 81-CC-1925
    Hawthorn Mellody Farms, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 21, 1982.

    Rothschild, Barry & Myers, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim comes before the Court on the joint stipulation of parties, in which they agree to an award of $16,000 for damage doné to Claimant’s property by State snowplows during the early months of 1979.

While the Court is not necessarily obligated to honor settlement agreements such as this, it does not desire to impose a controversy between parties when they are in agreement. The Court encourages the settlement of actions without recourse to the trial process, and so long as the settlement appears fair, reasonable and justifiable under the facts and the law, we will honor the agreement and enter the award accordingly.

We hereby grant an award of $16,000 to Claimant in full and final satisfaction of this claim.


author: Holderman, J.

text:
    (No. 81-CC-1996
    Pyramid Construction Company, Claimant, v. The State of Illinois, Respondent.

      Order allowing claim filed August 19, 1982.

      Motion for reconsideration denied October 22, 1982.

    Dobbins, Fraker, Tennant, Joy & Perlstein, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This cause of action was brought as a result of problems involving a construction contract between Pyramid Construction Company and the State of Illinois whereby the Claimant undertook the demolition of a two-larie highway bridge on a Champaign County road, together with the construction of a new bridge and restoration of the grades and contours as is customary in these types of contracts. Mr. Coon, president of Pyramid Construction Company, testified that for the actual preparation of said construction bid, he relied on the representation of the State as to the dimensions of said right-of-way because the amount of his bid for hauling and replacement of fill was predicated on being allowed to store the excavated earth adjacent to the roadway and within the highway right-of-way.

There is no question between the parties that there was a representation that this was an 80-foot right-of-way by the plans, and it turned out to be a 60-foot right-of-way. The State representative from the Department of Transportation attempted at great length to show that even if there had been an 80-foot right-of-way, there would not have been sufficient room for the storage of the fill. This, of course, was disputed by the Claimant. In any event, the Claimant was forced to store the fill on the existing road bed.

When the job was substantially completed, and prior to final payment, the county engineer for Champaign County objected to the fact that when the dirt was removed from the road bed certain gravel or concrete materials sifted down through the fill and that the equipment used produced scratches in the asphalt base on the right-of-way.

The State then, through negotiations with the county, refused to release funds until the Claimant replaced 3,200 square feet of roadway surface immediately to the east of the bridge construction. This was done, and there was no issue as to the quality or standard of work on the entire project.

The Claimant’s contention is that because of the erroneous specifications, it should be allowed to recover the additional expense because of the additional repair work. The State’s contention is that under the specifications for road and bridge construction the Claimant is obligated to replace said roadway, that the Claimant contracted to do so and admitted negligence on his part by performing the work.

As is usual in most of these types of cases, the applicable law is very easily recited, but each case must stand on its particular facts. The State of Illinois prepared the specifications and accepted the bid of the Claimant. It must reasonably be inferred that the experts hired by the State of Illinois would be knowledgeable in these fields of construction and could readily see by the amount bid by the Claimant for trucking and hauling contemplated that the fill was going to remain upon the job site. It is further noted from the testimony that the State inspectors were on the job on a daily basis and apparently found the methods used by the Claimant to correct the problem (i.e. storing the fill on the roadway) to be perfectly acceptable. Mr. Freeman, the State’s resident engineer, stated that the equipment operators who performed these specifications were conscientious, and as far as quality of the work is concerned, he found no problems with the way it was performed.

The Court therefore finds from the facts that both parties found the method of avoiding the problem by placing the fill on the roadway to be acceptable and obviously neither party contemplated the damage that resulted. There apparently would have been no problem with final completion of the job without the intervention of the county engineer of Champaign County. Under these particular facts, we fail to find any negligence on the part of the Claimant concerning the damage to the roadway.

Turning next to the State’s contention that Claimant actually contracted to do the additional work, we find no merit to this argument. Claimant found himself in a position where he had a substantial amount of funds tied up by virtue of retainage. These are held by the State and will not be released until, in effect, the contractor does what the State requires. Claimant did the work under protest, demanded payment, and did this work to receive the payments due under the original contract. We do not find that this resulted in any contract. The issue here is that the State and the Claimant entered into a course of remedial conduct, which was initially caused by the State’s erroneous specifications. This then produced unforeseen damage which the State, by virtue of the continued cooperation with local governmental authorities, required the Claimant to expend additional funds to correct.

The Claimant has proved by a preponderance of the evidence that he was misled by the right-of-way specifications, and as a result thereof, he was obligated to do extra work.

Claimant is awarded $6,000.


text:
    (No. 81-CC-2031
    Stanley A. Anton, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 8, 1983.

    Presney, Huffman, Kelly & Appleton, for Claimant.
    Neil Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim was brought by a resident of the Logan Correctional Center to recover for injuries suffered on February 5, 1981. Claimant was employed as a maintenance worker by the center and was doing work as a welder. On the day in question, he was welding a stainless steel sink and was receiving compensation in the amount of $45.00 per month for doing various welding operations.

At the time of the accident, Claimant was wearing a welding helmet and was sitting on the edge of a high stool leaning over the sink. The type of welding he was doing required him to hold a welding torch in one hand and a rod of metal in the other hand. These would be joined together, melting the metal to perfect the weld. As Claimant was engaged in this welding process, he was startled by a loud noise. The noise apparently caused Claimant to jump backward at which time the stool also went backward and he started to fall. Claimant testified that it was very difficult to see through the eye plate of the welding helmet except when welding was actually being done. As Claimant was falling, he attempted to remove the welding helmet and in so doing, he jabbed himself in the eye with the hot metal rod he was holding in his left hand.

Claimant was given immediate medical attention by Dr. Robert Trapp at the correctional center. The record shows that two other residents of the center dropped a long steel beam on the floor, causing the loud noise that startled Claimant. One of these individuals, Jim Meredith, testified he was also a welder, that welding was a delicate operation, and if someone was banging things around a person while he was welding, it would upset him. He further testified he was aware of incidents of horseplay when he would be welding and people would bang on things with hammers or make other noises that would make you jump. He also testified that “a sudden noise or something like that is going to make you jump, no matter what you are doing.”

It appears from the facts presented that Mr. Meredith, as supervisor, was under a duty to maintain safety standards in the shop, that he neglected to do so, and as a result of such failure, the injury occurred. It further appears that the direct and proximate cause of Claimant’s injury resulted from said failure. Claimant was clearly free from any contributory negligence in this particular accident.

Claimant testified that his eye sustained a burn which was very painful, that it caused him considerable difficulty for approximately one week, that he is now compelled to wear eyeglasses which he never wore prior to the accident, and that he was still suffering to some degree as a result of the injury.

Claimant did not incur any loss of wages or medical bills so we are dealing mainly with pain and suffering. In this connection, it is noted that neither Dr. Trapp nor Dr. Moran found any permanent damage to Claimant’s eye.

It is the Court’s opinion that Claimant be awarded the sum of two thousand five hundred ($2,500.00) dollars for injuries sustained and pain and suffering as a result of this accident. An award is hereby made in said amount in full, final and complete settlement in this cause.


text:
    (No. 81-CC-2097
    Elvis Rowland, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 16, 1982.

    Richard F. McPartlin, for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This case involves a request for back salary claimed by Elvis Rowland, for a period of time from May 9, 1978, to and including March 20, 1980.

The facts of this case in chronological order, and stipulated to by both parties, are:

a. Prior to January 13, 1978, Claimant was a special agent of the Illinois Liquor Control Commission, having certified status in that position.
b. On January 13, 1978, Claimant was suspended from that position pending discharge by Jack Wallenda, then executive director of the Illinois Liquor Control Commission.
c. On February 8, 1978, Claimant was discharged, effective that date, terminating the original suspension of February 8,1978.
d. On-February 9, 1978, Claimant requested a hearing on the charges. The hearing was continued from time to time until evidence was heard on June 20, 1978, and July 7, 1978.
e. On August 30, 1978, the hearing officer recommended a 90-day suspension for Claimant, and on September 21, 1978, the Civil Service Commission adopted the recommended decision.
f. On September 22, 1978, the Liquor Commission filed an administrative review decision seeking a discharge of Mr. Rowland, and thereafter Mr. Rowland filed an administrative review decision.
g. These two cases were consolidated in the circuit court of Cook County, and on March 20, 1979, Judge Dunne affirmed the decision of the Civil Service Commission.
h. On March 20, 1981, Mr. Rowland returned to his position and has been working since that date.
i. The amount of back pay sought by Mr. Rowland is $11,990.71, reduced by $706.00 received from unemployment compensation, having a balance claimed of $11,284.71.

These facts having been stipulated to, the issue becomes whether Mr. Rowland sufficiently attempted to mitigate his damages by actively seeking to find and accept other employment.

The evidence showed that Claimant during the 15-month period did receive unemployment compensation until he was determined ineligible. He visited the Urban Progress Center several times and sought employment at J.M. Corbett Construction, Hyre Electric and Wood’s Electric. This evidence was brought out by the Attorney General in his cross-examination of the Claimant, and was allowed as direct evidence by stipulation of the parties.

The Claimant further testified that during the period of the suspension he was actively involved with his . attorneys in the appeal of the discharge case and defense of the criminal case. This situation is similar to the facts in Mellas v. State of Illinois, 24 Ill. Ct. Cl. 350, in which the Court allowed an award since “It is easy to discern that Claimant had his hands full defending the charges against him during the period . . .” It should also be noted that it was the Illinois Liquor Control Commission that initially filed the complaint for administrative review, which delayed Claimant’s return to work from September 22, 1978, until March 21, 1979.

Based on Claimant’s testimony, he did actively seek employment throughout the entire suspension period and based on the fact that he was actively involved with the defense of the Illinois Liquor Commission’s appeal of his 90-day suspension, as well as his defense of the criminal charges, which arose from the same incident, it is the finding of the Court that Claimant did attempt to mitigate his damages and is hereby awarded the sum of $11,284.71.


text:
    (No. 81-CC-2270
    Bridgeview Bank and Trust Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 12, 1982.

    Block, Levy & Becker, Chartered (Alvin R. Becker, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim is before the Court on Claimant’s motion for summary judgment. Respondent concedes that the facts as stated in the complaint and motion are true and accurate and that, because there are no genuine issues of material fact, the claim should be adjudicated by summary judgment.

On February 6, 1978, final judgment was entered in favor of Respondent and against Claimant in the sum of $35,841.39 in a case in the circuit court of Cook County. Claimant was the depository bank of Bee Jay’s Truck Stop, Inc., a defaulted taxpayer, against whom a judgment had been entered for nonpayment of taxes. Claimant thereupon prosecuted an appeal to the Appellate Court, First District. During the pendency of the appeal Claimant paid the $35,841.39 to Respondent, plus interest of $716.82. On June 18, 1980, the judgment appealed from was reversed and the mandate of the appellate court issued on November 13,1980. Thereafter, Claimant filed a petition for restitution of the funds paid to Respondent. Respondent filed a reply to that petition, alleging inter alia that although Claimant had paid the judgment, plus post-judgment interest, relief was unavailable because Claimant failed to post an appeal bond and the monies paid by Claimant were paid into the general revenue fund, thereby depriving the circuit court of jurisdiction. The circuit court by order dated February 6, 1981, denied Claimant’s petition for restitution, presumably on the above-stated grounds although the order does not state so specifically.

In its argument in support of the motion for summary judgment, Claimant cited several cases on point from various courts in the judicial branch of government of this State. Respondent conceded that if this claim were between two private parties Claimant would be entitled to judgment. While not explicitly contesting Claimant’s motion, Respondent did file a response stating that the fact that the money was paid over to the State and deposited into the general fund may place what would otherwise be a valid claim on a different footing. Although unable to cite any cases on point, Respondent did file a memorandum setting forth several points for our consideration. Claimant sought to distinguish the cases cited by Respondent in a reply memorandum.

In Cayman Associates, Ltd. v. State (1980), 33 Ill. Ct. Cl. 301, we granted summary judgment in favor of Claimant on nearly identical facts. While that case did not involve a tax dispute, it did involve a claim for monies paid pursuant to a subsequently overturned judgment. In Cayman, the Illinois State Scholarship Commission obtained a judgment against an individual based upon an alleged default on a guaranteed student loan. A wage deduction summons was served on Cayman Associates, Ltd., the individual’s former employer and final judgment was entered against Cayman. The Commission then filed a non-wage garnishment summons on á bank which resulted in money being removed from Cayman’s operating account and eventually ending up in the State’s general revenue fund. Later, the order entered against Cayman was vacated, the garnishment proceedings against Cayman were dismissed, and the monies previously removed from Cayman’s account were ordered to be returned. Cayman also had to come to this Court for relief. No response to Cayman’s motion for summary judgment was made by Respondent and on the issue of the motion we said:

“The record before us indicates that the State has in its possession funds obtained from Cayman pursuant to a void court order. Thus the State has no legitimate interest in the funds and they should be returned to the Claimant.” Cayman, supra, p. 303.

Respondent cited several cases relating to the voluntary payment of fines, taxes, and fees rather than voluntary payment of a judgment. In Potter v. State (1948), 18 Ill. Ct. Cl. 1, the Claimant paid fines to the State following a decision of a justice of the peace on complaints brought against him by the Department of Conservation for alleged game law violations. On appeal to the circuit court of Ogle County, the complaints were found to have been insufficient and the fines were ordered to be returned to the Claimant. Judge Bergstrom noted that since an appeal was taken, Claimant could have filed an appeal bond to stay the enforcement of the fine. In denying recovery the Court held:

“The law does not require a defendant who takes an appeal from a justice of the peace to pay either the costs or the fine imposed by the justice of the peace, but if the said cost or fine is paid, it cannot be recovered upon a subsequent acquittal (citing cases); and where a fee or tax is paid voluntarily, with knowledge of the facts, the same cannot be recovered back, in the absence of a statute authorizing recovery.” Potter, supra, p. 3.

A similar decision was reached in Smith v. State (1953), 21 Ill. Ct. Cl. 459. There the Claimant voluntarily paid a traffic fine upon conviction which was later reversed. Relying on the Potter decision, supra, in denying recovery, the Court again held that a voluntary payment of a fine and costs cannot be recovered absent statutory authorization.

As was previously noted, both Potter and Stewart were cases involving fines and costs. The other cases cited by Respondent involved taxes and fees. They were all paid as a result of mistake, overpayment, statutory violations, or pursuant to unconstitutional statutes. The law appears to be well settled in the Court of Claims and constitutional courts that in the absence of an authoritative statute and a showing of compliance therewith by the plaintiff, voluntary though erroneous payments of fines, costs, fees, and taxes cannot be recovered.

We find that the cases cited by Respondent are inapplicable. The case at bar involved the payment of a civil judgment by a third party. The relationship between Claimant and Respondent was not that of taxpayer-sovereign. Under the facts in this case the relationship between the parties was simply that of judgment debtor-creditor. We feel that under such circumstances the State is not in the same position as it would be in a situation involving taxes, fees, costs, and fines. The fact that the funds have been redeposited in the ordinary course of procedure into the State’s general revenue fund, while operating as a bar to an enforceable order of refund by a constitutional court, is of course no bar to judgment in this Court. In the ordinary case, a judgment creditor may voluntarily pay a judgment and still prosecute an appeal without waiving rights for relief, and upon reversal of a judgment by appeal, an appellant who has paid the judgment is entitled to receive the monies previously paid back. That is the situation in the case at bar.

Failure to exercise the option under Supreme Court Rule 305 (Ill. Rev. Stat. 1977, ch. 110A, par. 305) to post an appeal bond is not a bar to recovery. That rule is permissive and not mandatory. Although Claimant might have avoided the present litigation by doing so, it was its prerogative.

It is hereby ordered that Claimant’s motion for summary judgment be, and hereby is granted, and Claimant is hereby awarded the sum of $36,558.21.


text:
    (No. 81-CC-2356
    Clarence Davidson, Claimant, v. The State of Illinois, Department of Corrections, Respondent.

      Opinion filed May 2, 1983.

    Clarence Davidson, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant seeks to recover for the alleged neglect and failure of Respondent’s agents in treating Claimant’s dental disorders while he was incarcerated at Stateville Correctional Center.

The evidence in this case shows that while Claimant was a prisoner at Stateville, he experienced a toothache, and on February 10, 1981, in response to his request for dental attention, Claimant was called to the dentist’s office. The dentist proceeded to fill one of Claimant’s teeth. Later the same day, the toothache recurred and it was called to the attention of the dental department.

The following day, Claimant returned to the dentist where the dentist who had filled the tooth on the previous day admitted he had filled the wrong tooth. Nothing was done for a few days, and in the meantime the tooth became infected, causing Claimant. considerable pain and discomfort. This condition continued for a number of days until the tooth was finally extracted.

Claimant appeared pro se at the hearing in this cause and Respondent did not appear. Respondent subsequently stipulated to its own liability and submits this case on the question of Claimant’s damages.

The record is clear and uncontradicted that Claimant suffered a toothache and that the tooth subsequently became infected. Claimant first went to the dentist on February 10, 1981, and he proceeded to receive treatment for a period of several weeks. During all this period of time, Claimant stated he was in constant pain and was given very little medication and finally resorted to taking aspirin and putting it on the infected tooth to get some relief.

The Respondent’s records show Claimant did call the dental and medical department’s attention to his. situation.

Claimant alleges he suffered damage to his nerves as a result óf the constant pain, that he is still nervous, and that he has never quite recovered from the ordeal he suffered.

The only evidence in the record is that introduced by Claimant which consists primarily of his testimony and the records from the dental department at Stateville.

The question now becomes a matter of how much damages should be awarded to Claimant for pain and suffering and permanent damages, if any.

First National Bank v. Standard Paving Co. (1973), 15 Ill. App. 3d 7, 303 N.E.2d 29, lays down the rule that where right of recovery exists, defendant cannot escape liability because damages are difficult of exact ascertainment, and that absolute certitude as to amount of damages is not required as long as damages have been proven within reasonable certainty.

Witte v. State, 21 Ill.Ct.Cl. 173, lays down the rule that “where evidence showed that an inmate, after being injured, did not receive medical attention from a qualified physician for ten days, the State was negligent, and an award will be made for permanent injury and deformity resulting therefrom.”

The evidence is clear in the present case that Claimant did suffer as a result of the negligence of Respondent and that Respondent (1) filled the wrong tooth of Claimant; and (2) neglected to take care of the bad tooth, causing the infection of the tooth, which required treatment for a period of one month.

As stated above, Respondent has admitted negligence and did not submit any briefs as to the question of damages.

It is the opinion of this Court that the negligence of Respondent caused the damages complained of and that Claimant did suffer some damages.

Award is hereby entered in favor of Claimant in the amount of $1,250.00 for pain, suffering, and permanent damages.


text:
    (No. 81-CC-2676
    Charles Talley, Jr., Claimant, v. The State of Illinois, Respondent.

      Order filed April 20, 1983.

    Charles Talley, Jr., pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant, an inmate of an Illinois penal institution, has brought this action for monetary damages arising out of the alleged loss of “intimate correspondence and future relationship with person that cared about Claimant’s well being enough to write and call from another county (sic), loss of time in painting, a painting and the materials used in painting a painting as well as mental and grievous suffering in the loss of a friend which cared and took Claimant for his word in trusting that he would send the oil painting to her in the total sum of $7,000.00.”

Claimant’s claim sounds in tort for negligence and he. seeks relief against Respondent under section 8(d) of the Court of Claims Act. Ill. Rev. Stat., ch. 37, par. 439.8(d).

Claimant’s complaint sets forth that on December 20, 1980, Claimant gave the mailroom supervisor at the Centraba Correctional Center $5.00 in postage to send a 12 x 16 brown envelope containing a letter and an oil painting to a female correspondent. Claimant alleges that Respondent’s employee delivered the mail to the dayro.om control on December 20, 1980, during the 3 to 11 shift.

Claimant grieves the loss of his painting and correspondence for the reason that, contrary to institutional rules, no notation was made on the outgoing mail list that Claimant’s mail went out on December 20, 1980. Claimant did not know his correspondence did not leave the institution but had surmised that by the absence of any notation from the outgoing mail list.

The record is wholly devoid of any proof that the Claimant’s property was in any way lost, mislaid, or misdirected by prison authorities. Claimant relies solely upon the fact that there was not any notation regarding the mailing of his painting and letter, since said notation did not appear on the institution’s list of outgoing mail.

This Court has repeatedly held that before recovery can be made by an inmate, it must be shown by positive proof that Claimant’s property was in the exclusive possession of Respondent. See Brown v. State (1979), 32 Ill.Ct.Cl. 767.

Most of the cases arising from loss of personal property occur when an inmate of an institution is being transferred to another institution and Respondent takes possession of said property, gives a receipt showing it has taken actual possession, and then fails to deliver said property to the new institution. In such cases, Respondent has acknowledged receipt of the property and the facts show it was in the exclusive possession of Respondent at the time said property was lost.

The present case does not present such clear proof. Case dismissed.


text:
    (No. 81-CC-2747
    Forrest R. Chaney and David A. Imber, Claimants, v. The State of Illinois, Respondent.

      Order filed January 4, 1982.

      Opinion filed May 31, 1983.

    Heckenkamp & Simhauser (Robert G. Heckenkamp, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Poch, J.

This cause having come before this Court on the joint stipulation of the Claimant Forrest R. Chaney, by his counsel, Robert G. Heckenkamp, and the Respondent, the State of Illinois, by the office of the Attorney General and the Court being fully advised in the premises finds that the parties in their stipulation agreed that the Claimant, Forrest R. Chaney would have earned $123,916.90 had he been continually employed by the Department of Law Enforcement and that during the period of his wrongful discharge that he mitigated his loss by outside employment which earned him $82,007.41. The Claimant, in the joint stipulation, agrees to accept the difference of $41,909.49 in complete settlement of his claim and the Respondent agrees that he would have no objections to the granting by this Court of an award in that amount. The Respondent also agrees in their joint stipulation that the employment record of the Claimant satisfies the requirements that the Claimant did everything in his power to mitigate his losses during the period of his discharge from the State of Illinois. This Court agrees with the conclusion of the office of the Attorney General that the Claimant has satisfied the requirements of the Court for the mitigation of his loss, and concurs in the appropriateness of the joint stipulation.

It is therefore ordered by this Court that Forrest R. Chaney be granted an award in the amount of $41,909.49, plus employer contributions to the State Employees’ Retirement System and/or FICA and minus deductions for appropriate employee payments for State Employees’ Retirement System and/or FICA, and for Federal and State income taxes as shown in Appendix 1 attached hereto and made a part hereof.

APPENDIX A

Identification of State Contributions and Deductions from Back Salary Award

To the State Employee’s Retirement System:

Employee’s contribution to State

Employee’s Retirement System 11322.10

Employee’s contribution to FICA 243.10

State’s contribution to State

Employee’s Retirement System 9062.53

State’s contribution to FICA 243.10

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

Claimant’s Federal Income Tax 8381.89

To Illinois Department:

Claimant’s Illinois Income Tax 1047.73

To the Claimant:

Net Salary • 20914.76

OPINION

Roe, C. J.

This claim is for back wages by a wrongfully discharged employee of the State of Illinois. This opinion pertains to the second count of the complaint filed herein, i.e. the claim by David A. Imber. The first count consisted of a claim by Forrest R. Chaney which has previously been decided by an order filed herein on January 4, 1982.

Prior to May 14, 1975, the Claimant, Mr. Imber, was employed by the Department of Law Enforcement of the State of Illinois as an officer in the Department’s Illinois Bureau of Investigation. On May 14, 1975, the Claimant was discharged from said employment by the superintendent of the I.B.I. He appealed his discharge. The Civil Service Commission affirmed it. Thereafter the circuit court of Sangamon County, on administrative review, reversed the decision of the Civil Service Commission and ordered the Claimant reinstated with full back pay and restoration of benefits. The judgment of the circuit court was affirmed on appeal by the appellate court for the Fourth District of Illinois in Chaney v. Department of Law Enforcement (1979), 74 Ill.App.3d 424, and by the Illinois Supreme Court in Chaney v. Civil Service Commission (1980), 82 Ill.2d 289. The judgment is now final.

The Claimant was reinstated on January 5, 1981, and has received his pay for that fiscal year, including back pay, less set-off, from the beginning of that fiscal year. The Claimant has brought this action in this Court to recover that portion of his back pay due him that, but for the lapsing of the appropriations from which he could have been paid, would have been paid. The issue in such an instance involves the extent of the Claimant’s good faith efforts to mitigate his losses by seeking other employment during the period of his wrongful discharge. A hearing was held on this issue on August 2, 1982, before a commissioner of this Court at the Springfield office of the Court of Claims.

According to the testimony heard at said hearing and the group exhibits presented, it appears that the Claimant has substantiated evidence of at least 33 jobs applied for during the period in question and further testimony indicated that this only represented a small portion of the jobs the Claimant actually applied for but for which no records were kept. The Claimant, having met with no success with respect to those applications, commenced working as a common laborer, at first on a very limited on call basis and then began working steadily in 1978 until November 30, 1979, at which time he was injured on the job and unable to work for more than six months. All during this time he was involved in the litigation contesting his wrongful discharge. After reviewing the record we find that the evidence is overwhelming that he did everything reasonably possible to mitigate his losses and certainly expended much time both in searching for employment, working when able and preparing for and attending hearings.

Following the conclusion of the hearing, the parties entered into stipulation that (while not being a concession on the part of the Respondent on the issue of whether or not Claimant did everything within his power to mitigate his losses) should the Court of Claims determine that the Claimant did everything in his power to mitigate his losses, the amount of the award in favor of the Claimant should be $82,369.94. This was based upon the stipulation that the Claimant would have earned with the Department of Law Enforcement, had he not been wrongfully discharged, the amount of $115,949.30, and that his mitigation through actual earnings was $33,579.30, including credit for weekly workmen’s compensation benefits received as a result of the job-related injury.

We do find that Claimant did all in his power to mitigate his losses and concur with the stipulation. Accordingly, it is hereby ordered that Claimant be, and hereby is, awarded the sum of $82,369.94.

APPENDIX A

Identification of State Contributions and Deductions from Back Salary Award

To the State Employee’s Retirement System:

Employee’s contribution to State

Employee’s Retirement System 7,408.39

Employee’s contribution to FICA 443.27

State’s contribution to State

Employee’s Retirement System 5,848.27

State’s contribution to FICA 443.27

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

Claimant’s Federal Income Tax 16,473.99

To Illinois Department:

Claimant’s Illinois Income Tax 2,059.25

To the Claimant:

Net Salary 55,985.04

TOTAL AWARD $88,661.48


author: Per Curiam.

text:
    (No. 82-CC-0276
    Ray Graham Association For The Handicapped, a not-forprofit corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 9, 1982.

    Daniels & Faris (John M. Caluwaert, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Edward C. Hurley, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This cause comes before the Court on a stipulation filed by the parties wherein it is requested that this Court make an award in Claimant’s favor in the amount of $21,467.00. The Claimant, an Illinois not-for-profit corporation, provided transportation services for clients of the Department of Rehabilitation Services.

The Claimant did in fact provide the services alleged in the complaint on behalf of the Department of Rehabilitation Services by providing its residents with transportation services.

The Department of Rehabilitation Services does not dispute the fact that the Claimant herein performed the services which are the subject matter of this complaint and that the sum of $21,467.00 is due and owing the claimant.

While this Court is not bound by any stipulation made by the parties to a case, such a stipulation will not be rejected out of hand.

It appears that the parties have carefully considered the merits of this claim. Such being the case, the Court allows the stipulation of the parties.

It is hereby ordered that Claimant, Ray Graham Association for the Handicapped, be awarded the sum of $21,467.00 (twenty one thousand four hundred sixty seven dollars and no cents) in full and final satisfaction of any and all claims arising under cause No. 82-CC-0276.


text:
    (No. 82-CC-0496
    Blossom Levine, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 15, 1982.

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

This claim comes before the Court upon the joint stipulation submitted by the parties. The stipulation states as follows:

1. That Claimant began working for Northeastern Illinois University on June 15, 1975.

2. That shortly thereafter, she enrolled in the Illinois State employees group insurance program and applied for dependent spouse life insurance.

3. That she retained and paid for this coverage until July 18, 1978, at which date Claimant and the other employees at Northeastern were asked to fill out new insurance forms.

4. That since Claimant was unusually busy at this time, she signed a blank form and asked the personnel director to fill it out so as to retain the coverage she already had, including dependent spouse life insurance.

5. That the personnel director erroneously filled out the form so as to eliminate the dependent spouse life insurance.

6. That Claimant did not become aware of the mistake and the change in coverage until March 19, 1980, when her husband died and she was unable to collect any insurance.

7. That Respondent concedes that it made an error on the insurance form and that it is liable to Claimant to the extent set forth herein.

8. That both parties agree that Claimant’s damages amount to $900.00 and that award in this amount be granted.

9. That both parties agree that this award shall constitute full and final satisfaction of this claim or any others arising from the same occurrence.

10. That both parties waive hearing and the filing of briefs for this claim.

It appears to the Court that this stipulation was entered into freely and with due consideration of the law and facts relating to the claim. While we are not bound by this stipulation, we are also not disposed to create a controversy between the parties where none seems to otherwise exist.

Claimant is hereby awarded the sum of $900.00 (nine hundred dollars and no cents) in full and final satisfaction of this claim.


text:
    (No. 82-CC-0792
    Joseph R. Connolly, Claimant, v. The State of Illinois, Respondent.

      Order filed January 3, 1983.

    Scanlan and Hartigan, Ltd., for Claimant.
    Tyrone C. Fahner, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court upon the joint stipulation of Claimant and Respondent to the granting of a settlement in the amount of $2,500.00 without a finding of State liability. The Court being otherwise duly advised in the premises, therefore,

It is hereby ordered that a settlement amount be entered in favor of Claimant, Joseph R. Connolly, in the amount of $2,500.00 (twenty five hundred dollars) in full and final satisfaction of this matter.


text:
    (No. 82-CC-0939
    Joann M. Williams, Claimant, v. The State of Illinois, Illinois Racing Board, Respondents.

      Order filed April 4, 1983.

    Russell W. Hartigan, for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

On November 13, 1981, Claimant, Joann M. Williams, filed her complaint seeking reimbursement for per diem work performed and accepted by the Illinois Racing Board.

Claimant was employed by the Illinois Racing Board from June 1, 1981, through July 28, 1981, when she was informed that her employment was. terminated and that she was not to be reinstated as an employee.

This matter was heard by Commissioner Robert E. Cronin, who found from the testimony and documentary evidence that Claimant was assigned to license harness operators at Balmoral Park. Claimant worked on the basis of 6-1/2 hours a day and was paid a per diem of $45.00 per day. The record further reflects that Claimant performed some work at home during the time frame of June 21, 1981, through the end of July 1981. Claimant failed to substantiate that she processed 6,000 applications during that same period of time.

Therefore, based upon the evidence submitted, the Claimant is entitled to an award of five days of work at $45.00 a day in the amount of two hundred twenty five ($225.00) dollars, as reimbursement for work performed at home and accepted by the Illinois Racing Board.

An award is hereby made to Claimant, in the amount of two hundred twenty five ($225.00) dollars.


text:
    (No. 82-CC-1090
    D’abar Builders, Inc., an Illinois corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 25, 1982.

    Douglas C. Hancock, for Claimant.
    Tyrone C. Fahner, Attorney General (Edward C. Hurley, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This cause comes before the Court on stipulation filed by the parties wherein it is requested that the Court make an award in Claimant’s favor in the amount of $24,473.00. The Claimant, an Illinois corporation, being entitled to fees on amounts paid to subcontractors pursuant to a contract entered into with the Capital Development Board.

The Claimant did not receive and has been denied its 25% fee on payments made to subcontractors alleged in the complaint. The Capital Development Board does not dispute the fact that the Claimant herein is entitled to fees on monies paid to the subcontractors, pursuant to the contract, which are the subject matter of this complaint, and that the sum of $24,473.00 is due and owing the Claimant.

While this court is not bound by any stipulation made by the parties to a case, such a stipulation will not be rejected out of hand.

It appears that the parties have carefully considered the merits of this claim. Such being the case, the Court allows the stipulation of the parties.

It is hereby ordered that Claimant, D’Abar Builders, Inc., be awarded the sum of $24,473.00 (twenty-four thousand, four hundred and seventy-three dollars) in full and final satisfaction of all claims arising under cause No. 82-CC-1090.