text:
    (No. 6537
    Beverly A. Wagner, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 3, 1978.

    Reese and Schafner, by Harry B. Aron, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Beverly A. Wagner, Administrator of the Estate of her late husband, Bernard A. Wagner, has brought this action to recover damages for his death.

Bernard Wagner died on August 25, 1971, as the result of injuries he suffered in a motorcycle accident on August 18,1971. The accident occurred at the intersection of an exit ramp from Interstate 55 and County Line Road in Cook County, Illinois. Claimant contends that the death of her husband was proximately caused by the negligence of the State of Illinois in permitting gravel to accumulate on the exit ramp, which caused the deceased to lose control of his motorcycle while traveling on the ramp.

At about 8:45 p.m. on August 18, 1971, Bernard Wagner was proceeding from his place of employment at 2400 South California Avenue in Chicago, to the Santa Fe Speedway. He was driving a 1964 B.S.A. motorcycle. It appears that he was an experienced motorcycle driver who took good mechanical care of his machine. Mr. Wagner was not wearing a crash helmet at the time of the accident.

Wagner proceeded westbound on Interstate 55, and left 1-55 at the southbound County Line Road exit. The exit ramp was a single lane concrete roadway with shouders on either side, which were in turn bounded by gravel. The exit ramp was part of a full clover leaf interchange at County Line Road.

The parties stipulated that the exit ramp from Interstate 55 to County Line Road was under maintenance jurisdiction of the State of Illinois. County Line Road itself was not under the jurisdiction of the State, but rather was maintained by the County.

Road conditions were clear and dry, and the exit ramp was well illuminated.

As the deceased reached the top of the exit ramp, near its intersection with County Line Road, his motorcycle fell to the pavement. Another motorcycle rider and his passenger, who had been following about 50 yards behind the deceased, testified that they saw sparks near the top of the exit ramp where Wagner fell, and that when they reached the top of the ramp they found him lying on County Line Road near his fallen motorcycle.

Wagner suffered severe head injuries in the accident and the parties have stipulated that those injuries resulted in his death on August 25. The disputed issues are whether Claimant’s death was proximately caused by the negligence of the State, and whether the accident actually occurred on that portion of the exit ramp which was under the control of the State.

Officer John Hallock, Jr. was the police officer first called to the scene of the accident. Hallock said that he found an accumulation of gravel near the point of the merger of County Line Road with the exit ramp. He also said that there was construction taking place on the exit ramp during the week prior to the accident, involving replacement of the gravel outside the shoulders of the exit ramp. He was unclear as to exactly when the construction occurred, but was sure that it was “at least several days” before the accident.

Hallock said he observed gravel at the top of the ramp, but that there was no gravel on County Line Road itself. He said there was a “significant amount” of gravel “completely across” the paved portion of the exit ramp near the intersection with County Line road. He said it did not appear possible for a motorcycle to avoid the gravel as it entered County Line Road. Hal-lock said that the gravel was clearly visible to him and that he did not observe any skid marks at the accident scene.

John Andrews, a consulting mechanical engineer called as an expert witness by Claimant, testified that it was his opinion that the accident was caused by the accumulation of gravel on the roadway.

Eugene Nosal was the driver of the motorcycle which was following the deceased, and Kenneth Bailek was his passenger. Neither was in a position to actually observe the deceased fall from his motorcycle, and both said that they merely observed sparks at the top of the exit ramp, and that it would not have been possible for Wagner’s motorcycle to avoid the gravel as it entered County Line Road. Bailek said he also observed dark patches on the pavement, which might have been oil slicks.

Eugene Nosal also said he observed gravel on the exit ramp. He testified that he observed construction on County Line Road about 50 yards from the intersection with the exit ramp, and that there was also gravel on County Line Road near the construction site.

Joseph J. Kostur, Jr., the Regional Safety Claims Administrator of the Department of Transportation, was called as witness by Respondent. Kostur said he had searched the records of his office, and was unable to find any contracts or awards let for construction on the County Line Road exit ramp on or about the time of the accident. Nor did Kostur find any maintenance records reflecting repair work on the ramp at the time. However, on cross-examination Kostur said that he would not necessarily be aware of a small patching operation on the exit ramp.

Bernard A. Wagner was 32 years old at the time of his death. He was married, and had two children. It appears that he had a close relationship with his family, particularly with a son who suffers from muscular dystrophy.

The deceased had been steadily employed prior to his death by the Ford Motor Company as a metal finisher, earning approximately $8,500.00 per year. In addition, he worked part time as a motorcycle salesman on a commission basis.

It is the State’s position that Claimant has failed to establish that it was negligent in maintaining the exit ramp in question; that Claimant has failed to establish that the accident occurred on the exit ramp, as opposed to County Line Road itself; and that Claimant has failed to establish that Bernard Wagner was free of contributory negligence.

It is axiomatic that the State is not an insurer of the safety of all persons who travel roadways under its jurisdiction and control. Rather, the State is held to a standard of reasonable care in maintaining those roads. Bloom v. State, 22 Ill.Ct.Cl. 582; Meygandt v. State 22 Ill.Ct.Cl. 498. In order to recover in this action, Claimant bears the burden of proving by a preponderance of the evidence that Respondent breached this duty; that the State’s breach was the proximate cause of the death of Bernard Wagner; and that Bernard Wagner was in the exercise of reasonable care for his own safety at the time of the accident. McNary v. State, 22 Ill.Ct.Cl. 328.

Claimant has established that there was a quan-. tity of gravel on the exit ramp from 1-55 at the point where the deceased fell from his motorcycle. All of the witnesses who were at the scene agreed on that point. However, we find there is an absence of proof as to how long that gravel remained on the roadway prior to the accident. The only testimony bearing on this point was that of Officer Hallock, who said that he had observed construction on the exit ramp during the week prior to the accident; but neither Officer Hallock nor any other witness testified to having seen the gravel on the roadway prior to the day of the accident.

The State may be charged with constructive notice of a dangerous condition when, from all the circumstances of a case, it is determined that Respondent should have been aware of the existence of a condition in the exercise of due diligence. Joyner v. State, 22 Ill.Ct.Cl. 213, 217. Here there was no testimony as to the length of time the gravel had laid on the roadway, and thus no evidence upon which we can charge the State with constructive notice of its existence.

Nor has the Claimant established that the State had actual notice of the existence of the gravel. Claimant contends that there is proof that the gravel originated with construction work performed by the State on the exit ramp. Again Claimant relies on the testimony of Officer Hallock, who said that “at least several days before the accident” he saw the State patching the gravel outside the shoulder of the exit ramp. Hallock offered no testimony that the State’s construction resulted in the gravel at the accident scene, and there is ample evidence in the record from which the Court can conclude that the gravel originated from another source.

Eugene Nosal, the operator of the motorcycle which followed the deceased, said that on the night of the accident he observed construction work on County Line Road about 50 feet from the exit ramp. Nosal said that he examined the construction area and found that the ground was covered with gravel, which extended to the exit ramp from Interstate 55.

Given Nosal’s testimony, the Court is unable to conclude that Claimant has established by a preponderance of the evidence that the gravel on the exit ramp originated with the construction on the ramp, as opposed to the construction on County Line Road, which was not under the control of the State.

This was an extremely unfortunate accident, and the Court has accordingly carefully scrutinized the record. We must conclude, however, that Claimant has failed to establish the negligence of the State, and this claim must accordingly be denied.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 6777
    Orr Construction Company, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 2, 1977.

    Harry M. Brostoff, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Holderman, J.

This matter comes before the Court after a hearing by the Commissioner to determine the damages suffered by Claimant. Motion for summary judgment filed by Respondent was previously denied and the remaining issue is to determine the amount of damages sought by Claimant as a result of being required to use unsuitable material in the embankment.

Donald Orr, secretary of the Claimant company, called as a witness, identified certain documents as final estimates of quantities, payroll records, equipment records, statements of materials and labor on the Fayette Project.

Charles Covert, formerly employed by Claimant on the project in question as a grading supervisor, testified that the State engineers ordered Claimant to use excavated material, which was unsuitable, in the embankment. This was over the objection of the Claimant who wanted to use suitable borrowed material. The silty or unsuitable material would be put in the embankment and a lift of better earth or dirt would be placed in alternate layers; the lifts of the unsuitable and the better borrowed earth were then compacted; the equipment rutter and sank into the unsuitable material from one to three feet; the equipment was slowed down and sometimes the scraper and bulldozer would “drag bottom” necessitating the equipment being pushed or pulled by tractors. As a result of which, the construction of the road embankment was slowed down. He stated that silty material was soft and mushy causing the equipment to become rutted in.

Edwin Klump, Jr., Market Development Engineer for the Caterpillar Tractor Company, testified that he edited the Caterpillar performance handbook. This book is an estimator’s guide in figuring production of the various Caterpillar machines. The book is a guide to earth moving and in it is a chart setting out production data on the “631” scraper used by the Claimant on this project.

Frank Bower, Senior Project Engineer, Terex Division at General Motors, identified performance charts for “S” 24 Graders used by Claimant in this project. Charts are used to aid contractors in calculating productivity within the engineering department.

Charles Antonetti, former engineer and head estimator for Claimant, called as a witness, testified he prepared Claimant’s estimate for the project in question; that they planned to waste the unsuitable material for the reason “that it has no stability” and “you can’t travel on it.”

He testified as to meetings regarding the handling of the unsuitable material, the Claimant wanting to waste it, the Respondent wanting to use it in the embankment. Using the State’s methods, he stated, haul costs would be greatly increased. He testified that he prepared the claim filed in this cause. He further testified, “I took the performance chart from the equipment manufacturers and with the information I had from what had happened on the job, I prepared two sets of figures. One set of figures was based on our proposition and the way we wanted to bill the job. This entailed using a clay material and a particular depth of penetration in the tires of the machines, the hauling units, which would give us a calculated rolling resistance, which in turn would give us the speed of the equipment and the daily production of that piece of equipment. By taking that and taking our daily costs, I arrived at a cost per unit of material hauled. Then, I turned and took another set of figures based on the type of penetration that we were getting where we incorporated the unsuitable material in the embankments and calculated the rolling resistance under those conditions, got the daily production, put that into our daily cost, and came out with a unit cost, compared those two and took the difference and calculated our loss based on that information.

And, as far as the amount used, the amount of silty material incorporated in the embankments, I took from a set of figures that was prepared by the State of Illinois and used that in those particular embankments along with the other material that went in, which I also got from the State of Illinois.”

He further testified, “In calculating these costs, I have taken all the information supplied by the State of Illinois as to where we had the unsuitable material, etc., and the amount that was incorporated in the fill and the amount that we hauled and put in stockpiles and brought back. And, then I attempted to arrive at the type of costs.

In my calculation, I have taken for the average spread a six scraper, which would contain six hauling units.”

He stated, “And the daily cost with the corrected labor rates and health and welfare and ownership cost rather than a rental figure for the equipment and a fuel and maintenance cost came to $3,372.53 on a daily cost basis.”

He further testified, “Once we decided on what the crew was, the daily cost, we went to the Caterpillar book which was previously introduced to get the hauling times or daily production in the two situations.”

Q. “What do you mean by the two situations?
A. In situation 1, which would be the type of hauling conditions we had assumed when we bid the job using a clay material in the embankments. We calculated that our normal tire penetration would be approximately six inches by these machines, which in turn would give us a rolling resistance of roughly eleven percent, and give usa production of around ten to 12 loads per hour, which we apply our efficiency percentages to it. We came up with about between seven and one-half and eight loads production under the condition we asusme we were going to be using clay.
Then, I also did a set of calculations based upon the information I received from the job and some personal observations on the job where our machines were just hanging up in the material. At that point the penetration is somewhere in the vicinity-of three feet.
We were getting by report that we were going anywhere from a foot up to this just marred down position, which could be roughly three feet. And, I assumed an average penetration under these adverse conditions of approximately 24 inches for this calculation.
When I applied this to the normal formulas and sets presented in the book, I came up with a cycle that would produce around slightly over three loads per hour versus the seven and one-half to eight that we counted upon.
I divided those two. Well, I computed the daily production based on those two loads counts, 7.7 loads which gave us in excess of 10,000 yards, I believe, and 3.04 loads which gave us just slightly in excess of 3,600 yards.
I divided both of those in the daily cost of 3,300.1 came up with a figure of 52.33 cent cost per cubic yard to move over the silty material versus a cost of 32.82 across the clay material. I then multiplied that by the amount of material.
Q. What is the difference?
A- The difference, I got the 19'A cents. Multiply that by the amount of material hauled over the unsuitable material in the embankment where unsuitable material had been placed, and that’s howl came up with Count I.
Q. The recalculation total was how much?
A. I have it here some place. $375,508.98. The difference is 55.95.”
He further testified,. “When we’re hauling over clay with six inch tire penetration, we arrive at a cost of .3649. And when we’re hauling over the unsuitable material at the 3.04 loads, we arrive at a cost of .9244, which gives us a difference of .5595 cents per cubic yard hauling under the two types of conditions presented, one over clay and one over embankments with silty material incorporated.
Q. And that difference is the damage that was suffered by Orr Construction Company as a result of hauling that material over the unsuitable material as against hauling it over clay?
A. That’s correct.”

At the time of the hearing, the Claimant made a motion to amend Count I to read $375,508.98 instead of $402,000.00. No objection was made to the amendment, and the claim was amended as to that particular Count.

Claimant, at the time of the hearing, withdrew Count II in the amount of $36,152.80. Claimant originally sought that sum for the furnishing of additional borrowed dirt.

As to Count III of the Complaint, Claimant seeks damages for having been required to haul empty to the borrow area and return loaded with borrowed excavation in the amount of 90,382 cubic yards of material. Claimant seeks damages in the amount of $17,624.49. Based upon specifications, field measurements and computations submitted to the Commissioner, the amount of cubic yards actually used was 31,885 yards at .195 per cubic yard, so that the Claimant has now reduced said claim to $6,217.58.

In Count IV, Claimant alleges that the unsuitable material elected by Claimant to be disposed of, on which basis Claimant has prepared its proposal, upon excavation would have become the property of Claimant. Claimant alleges that said material was suitable for topsoil required by the contract and Claimant used 50,990 cubic yards of said material for topsoil. Claimant alleges Respondent wrongfully deducted 27,239 cubic yards of said quantity from the measured borrow excavation and refused to pay Claimant for said amount deducted. Claimant alleges damages for this in the amount of $44,361.30. Submitted to the Commissioner was evidence that the amount of topsoil involved here was 27,239 cubic yards at .87 per cubic yard. This amount is determined by the job summary final quantity sheet. Claimant’s claim in this Count is therefore reduced to $23,697.93.

Count V seeks the sum of $70,183.78 which was amended to $58,436.48, and is for damages due to the delay in completion of the mass excavation and embankment resulting from the order regarding the use of the unsuitable material.

It appears from the evidence that the delay involved in this project was primarily due to bad weather and was not any fault of the Respondent. An extension was requested by Claimant of &IV2 days and it appears that 54V2 days was granted by the Respondent. On the basis of such extension, Claimant withdrew Count V of the original complaint.

This matter was previously briefed and argued before the Court and for that reason the filing of additional briefs and abstracts have been waived.

From the evidence submitted, the Court believes that an award of damages be as follows:

As to Count I, an award in the amount of $375,508.98;
As to Count III, an award in the amount of $6,217.58;
As to Count IV, an award in the amount of $23,697.93,

for a total award to Claimant in the amount of $405,424.49.


author: Polos, C.J.

text:
    (No. 6802
    Honeywell, Inc., Claimant, v. State of Illinois, Respondent.

      Opinion filed July 18, 1977.

    Cardose & Cardose, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Honeywell, Inc., seeks to recover the sum of $472.63 from Respondent for services and materials furnished at the Illinois School for the Deaf in Jacksonville, Illinois.

Claimant had contracted with the State of Illinois for installation of a fire alarm system at the school. It appears that the job was completed in January, 1970, and was subject to a one year warranty.

Either just before or just after the expiration of the warranty period, Claimant replaced a defective partin the system and has now brought suit to recover the cost of the installation. Respondent contends that the work performed was covered by the warranty, and was therefore not subject to charge. Claimant contends that the work was performed after the expiration of the warranty period, and that it should be paid for the work.

There is no dispute as to the necessity for the work, or the reasonableness of Claimant’s charge therefore. The sole issue in dispute is whether the work performed was covered by the warranty.

Dale Zittling, Commercial Service Manager for Honeywell in the Jacksonville, Illinois area, was the only witness to testify for Claimant. Zittling said that he “believed” that the job at the School was completed in January, 1970, but he was unable to state the date of completion, and the date on which the warranty expired. On direct examination he testified that the services were performed on February 18, 1971, which was subsequent to one year after the installation of the system. On cross-examination, however, Zittling said that he was unable to state the date on which the materials were furnished and services performed, or the date on which Respondent requested the repair work. He further testified that it was Claimant’s practice to honor, under a warranty, request for service made prior to the expiration, even if the work was performed after the warranty expired.

The Court also notes that Claimant’s invoice for the work performed bears the date of February 18,1971. Zittling testified that this was the date of the invoice, not the date that the work was performed, and that Claimant’s billings were usually issued one month after the date the work was performed. The parties agree that if the work was performed one month prior to the invoice date, it was covered by the warranty.

From the foregoing, the Court must conclude that Claimant has failed to sustain its burden of proving, by a preponderance of the evidence, that Respondent is indebted to Claimant as alleged in the Complaint. The Claimant failed to prove either the date of the expiration of the warranty or the date upon which the work was performed.

Claimant’s invoice bears the date of February 18, 1971, and Claimant’s witness testified that invoices were generally issued one month after work was performed.

Claimant has failed to carry its burden of proving that the work was done within the warranty period. This claim is accordingly denied.


author: Poch, J.

text:
    (No. 6841
    Pekin Insurance Company, Beardstown Transfer, Inc., Illinois Valley Asphalt Company and Aetna Life and Casualty Insurance Company, Claimant, v. State of Illinois, Respondent.

      Opinion filed June 14, 1978.

      Drach, Terrell & Defenbaugh, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Poch, J.

Claimants seek an award of damages against the State of Illinois in the original sum of $3,821.29, arising out of damage to Claimants’ truck-trailer, in an accident allegedly caused by the negligence of the State in maintaining a certain “bridge gate” on the Florence Street Bridge over the Illinois River in Florence, Illinois.

It was stipulated at the hearing of this cause that Claimant, Pekin Insurance Company, had sustained losses as a result of the accident in the sum of $3,621.29; and that Claimant, Beardstown Transfer, Inc., had sustained losses in the sum of $200.00.

The evidence adduced at the hearing before a Commissioner of this Court that on November 9,1970, Robert Coats was operating a semi-trailer truck west on a two-lane bridge with a lift span in Florence, Illinois. The bridge must be raised to allow river traffic to pass under the bridge, and at the time the bridge is raised, gates 24 feet in length descend on a system of chains and pulleys across the traffic lanes to block traffic from entering upon the bridge while it is raised. At the same time, Spencer Evans was driving a truck for Illinois Valley Asphalt Company eastbound on the same road at the same bridge. As the trucks were approaching each other on the bridge, the large metal gate, hereinabove referred to, fell in front of the Illinois Valley Asphalt truck operated by Evans. The Illinois Valley Asphalt truck struck the gate, and caused the gate to spin around and allegedly strike the rear wheel and tire of the Beardstown, Inc. truck, causing it to go out of control. The Beardstown Transfer vehicle struck the bridge and the tractor of that truck was a total loss.

An investigation conducted by the Department of Public Works and Buildings revealed that the gate had fallen through a malfunction in the bridge operation equipment.

Respondent’s employee, Wendell Baird, stated that he worked as a bridge mechanic for the State of Illinois, and was present at the bridge on the day of the accident, engaged in the preventative maintenance program, which called for bi-monthly inspections of the bridge equipment. Baird conducted an investigation after the accident and determined that a pin broke in a chain, allowing the gate to fall. The pin that broke attached the chain to the barricade gate. Baird testified that truck traffic on bridges of this kind tended to “bevel” pins in locations similar to that of the pin that broke in the present case, causing the pin to bend and snap. Baird testified that the only way to check pins of this type would be to take the chain off and that that was not part of the periodic maintenance.

The record clearly shows that wear to the pin that broke in the present case could cause the gate to fall in front of traffic, and that this was known to the employees of the State prior to the accident. Baird testified that with respect to inspection of these parts, “we always try to be very careful because it could be a very dangerous situation.”

The defect which caused the malfunction of the bridge in the present case could have only been found by dissassembling the chain mechanism. This was not done as a part of any periodic inspection. If this pin broke as a result of a beveling condition from truck traffic, there was no system to prevent the gate from falling onto or in front of bridge traffic.

The gate in question fell directly in front of the Illinois Valley Asphalt truck, making it impossible for Claimant’s employee to avoid the accident. We accept Claimant’s, argument that if the gate had not fallen there would have been no accident in this case.

Before any Claimant may recover, they must prove by a preponderance of evidence that (1) Claimant was free from contributory negligence; (2) that Respondent was negligent; (3) that Respondent’s negligence was the proximate cause of Claimant’s injuries, and (4) damages, Illinois Ruan Transport Corp. v. State of Illinois, 28 Ill.Ct.Cl. 323, 327 (1973).

First, as set forth above, there is no evidence to show any independent intervening cause of the accident, or that the driver for the Claimant, Beardstown Transfer, acted unreasonably under the circumstances. The driver testified that when the gate fell, he immediately applied his brakes. He did not put on his brakes to their full extent because he was afraid of losing control of the truck and colliding with the oncoming truck. Claimant has proven that it was free from contributory negligence by a preponderance of the evidence.

Second, it was acknowledged that the State tries to be careful because a gate falling in front of traffic “could be very dangerous.” Further, the State admits that it would be possible to install a safety mechanism to prevent the gate from falling in the event that the beveled condition of the pin in question caused the pin to break.

Therefore, the above testimony taken with the remainder of the record establishes that the Claimant has proven that the Respondent was negligent by an overwhelming preponderance of the evidence.

Third, as related above, it does not appear that this accident would have occurred but for the direct causal relationship between the falling of the gate in front of Claimant’s vehicle and the ensuing accident. Respondent does not argue that the collapse of the gate was not the proximate cause of this accident. The record substantiates that the breaking of the pin and the falling of the gate was in fact the proximate cause of the accident and the resulting damages.

Fourth, and last, the damages of Claimants have been stipulated in the following amounts: Pekin Insurance Company, $3,621.29; Beardstown Transfer Inc., $200.00.

An award is hereby made to Pekin Life Insurance Company in the sum of $3,621.29, and to Beardstown Transfer, Inc. in the sum of $200.00.

Subsequent to the hearing in the above case, a motion was made to join the claims of Aetna Life and Casualty Insurance, and Illinois Valley Asphalt Company in the combined sum of $352.00, arising from the same accident. The Commissioner permitted an amended complaint to be filed, but it was later pointed out by the Attorney General through a motion to strike the amended complaint that the statute of limitations with respect to the tort claims of Aetna Life and Casualty Insurance Company and the Illinois Valley Asphalt Company had been barred by the applicable two-year statute of limitations. Therefore, the claims of Aetna Life and Casualty Insurance Company and Illinois Valley Asphalt Company are denied.


text:
    (No. 6863
    Dorothy Mireles, Claimant, v. State of Illinois, Respondent.

      Opinion filed March 9, 1978.

    William S. Keck, Attorney for Claimant.
    William J. Scott, Attorney General; Saul Wexler, Special Assistant Attorney General, for Respondent.
   Holderman, J.

This action is based on a claim for injury to Dorothy Míreles resulting from a fall occurring around 9:00 a.m. on November 30, 1971, in the parking lot at the Illinois State Psychiatric Institute located at 1601 West Taylor Street, Chicago, Illinois.

While there to seek marriage counseling, she claimed she stepped into a “crack or hole” in the parking lot of the institute while attempting to avoid a patch of ice. She suffered a fracture of the tibia and fibula of the right leg. She identified on a photograph where the hole was that she stepped into.

Claimant was a waitress whose loss salary and tips totaled $1,950.00. Her net medical expenses were $150.00. Dr. Belza, Claimant’s physician, states “there should be no impairment of function . . . however the injury will probably leave a minimal bone deformity without any manifestation on the external surface...” Dr. Gleason in a joint exhibit, indicated no permanency other than 11 degree flexion - extension of the right ankle and a loss of 10 degree inversion of the right foot as compared to the left. Both doctors said that she could continue her normal activity.

Respondent argues that Claimant herself was negligent; that the State had no Notice of any so-called defective condition of the premises; and that the hole shown in the photograph was too small to impose a duty on the State to correct. Respondent cites Walkowitz v. State, 29 Ill.Ct.Cl. 10; 28 Ill.Ct.Cl. 368, 373; Davis v. City of Chicago, 290 N.E.2d 250; and Arvidson v. City of Elmhurst, 11 Ill. 2d 601.

Claimant relies heavily on Mary F. Jones v. City of Rockford, 101 Ill.App.2d, 174, 242 N.E.2d 302. In that case, Claimant fell on a broken sidewalk curb and gutter of defendant when she stepped to avoid ice accumulated in the broken sidewalk. The jury awarded her $4,000.00. The Appellate Court refused to set the verdict aside, saying, “The questions which were raised in this case were obviously questions for the jury.”

The case before this Court simply is a question of fact. If this were a jury trial, our judgment would affirm whatever verdict the jury would return. We cannot say as a matter of law in this case that the State was negligent nor as a matter of law that Claimant was free of contributory negligence, nor as a matter of law, the State had notice of the defect. However, we must in this instance act as a jury and give a judgment based on whatever we think the preponderance of the evidence proves.

In Arvidson v. City of Elmhurst, 11 Ill.2d 601, 145 N.E.2d 105, the Court said:

“The rule in Illinois, reiterated in the case law, is that a jury question on the issue of the city’s negligence is presented only when the defect in the sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it.” Citing Walter v. City of Rockford, 332 Ill.App. 243, 74 N.E.2d 903.

The Arvidson case sets forth in clear language the rule of law applicable to a situation where a person falls on a defective sidewalk. One of the basic questions in determining liability is whether the sidewalk irregularity is too slight to impose a duty on the city to remedy. The Court said on Page 106 of 145 N.E.2d:

“While Courts are in marked disagreements as to when the sidewalk irregularity or defect is so slight that the question is one of law, and where it is one of fact for the jury, nevertheless, the decisions recognize that no mathematical standard can be adopted in fixing the line of demarcation, and that each case must be determined upon its own particular facts and circumstances.”

Whether a fact is proven or not is tested by the definition of “Burden of Proof ’ in Illinois Pattern Jury Instructions, No. 21.01. The test is whether a fact is “more probably true than not true,” as shown by the evidence.

Viewing the pictures and considering the testimony of the Claimant, we find that she has sustained her burden of proof that she fell when she stepped in a hole while avoiding an icy patch; and that the defect was such that a reasonably prudent person should anticipate some danger to persons walking in the area.

We find Claimant is entitled to an award for the following:

As to medial expenses, $ 150.00
As to lost wages, $1,950.00
As to injury, $3,000.00

Claimant is hereby awarded $5,100.00.


text:
    (No. 6951
    Crawford, Murphy & Tilly, Inc., Claimant, v. State of Illinois, Respondent.

      Order filed August 18, 1977.

    Traynor & Hendricks, Attorneys for Claimant.

      William J. Scott, Attorney General; Lawrence W. Reisch, Jr., and William E. Webber, Assistant Attorneys General, for Respondent.
   Holderman, J.

Claimant, on April 1, 1970, entered into a contract with the State of Illinois through the Department of General Services to furnish engineering services in connection with the construction of certain road improvements including the construction of an all-weather entrance road and parking plan.

The claim before this Court is for the sum of $13,481.58 which Claimant contends is the balance due for the services rendered. Respondent contends that Claimant is entitled only to the sum of $9,456.96. The sole dispute is whether or not Claimant is entitled to be remunerated based on nine percent of the actual cost of construction or whether Claimant must settle for seven percent of the revised estimated cost. The contract provisions relative to remuneration are as follows:

Compensation of Associate Engineer:
It is agreed that the Associate’s commission shall be based either upon nine percent of an estimated cost of $63,850.00, which is $5,746.00, or nine percent of the actual cost of construction, whichever is lesser. It is agreed that the cost of construction, whichever is lesser. It is agreed that the supervising architect be given a revised final estimate upon completion of drawings and specifications and prior to advertising for bids. If this estimate is greater than the original estimate, the Associate fee will be adjusted as approved by the supervising architect and paid on the basis of the foregoing percentage applied to this approved revised estimate, or to the actual cost of construction, whichever is lesser.”

The original estimate was the sum of $63,850.00, but this estimate was not made by Claimant. It was prepared within the office of the supervising architect and the Department of Conservation.

However, the scope of the work was expanded extensively and the revised final estimate was the sum of $201,230.75. This was less than the construction cost and therefore the basis for computing the fee.

If Claimant is entitled to the fee based on nine percent of the estimated cost, then it is entitled to recover the amount sued for, that is, $13,481.58. This also includes remuneration for special duties in the amount of $1,116.81 but there is no dispute on this last item. If the seven percent rate is to be used, then Claimant has coming $9,456.96, which sum also includes the $1,116.81 for special duties. The balance of the consideration for services rendered due to Claimant has been paid for.

The work was completed on August 20,1971. Thereafter, on December 27,1971, the Department of General Services approved a fee based on nine percent of $201,230.75, the final estimate. At that time, the Department of General Services sent to Claimant a change order, setting forth the change from the original contract price of $5,746.00 to the new price, based on nine percent which was in the amount of $18,110.77. The communication to Claimant requested Claimant to sign the change order and return it to the Department, and that they, in turn, would forward it to the using agency with recommendations for approval and further processing. It was not until nine months later, on May 3,1972, that the Department of General Services notified Claimant for the first time that the fee had to be adjusted to seven percent because the project exceeded $200,000.00, and they had to stay within the guidelines created by the State Legislature.

Respondent argues that a contract may be reformed when an agreement sets forth something different than what was intended and that courts freely exercise their power to correct mistakes when the proof leaves no doubt that the contract entered into was something different from the real agreement of the parties. There is no argument with this principal of law, but there is no proof anywhere in the record to indicate that the parties actually intended to agree on something different than the nine percent rate set forth in the contract. There was no evidence that there was a mutual mistake of fact nor any evidence that the rate of compensation was erroneous or on its face was known to be erroneous by. Claimant.

In order to reform a contract on the ground of mistake, the mistake must be one of fact, mutual and common to both parties, in existence at the time of the execution of the contract, and showing that at such time the parties intended to stipulate a ceratin thing and by mistake stated it a different way. The evidence must leave no reasonable doubt as to the mutual intention of the parties.

We fail to find that Respondent has established that there was a mistake in the first place that was common to both parties and understood by both parties. The chief engineer for Claimant did testify that he knew the Department of General Services had a policy that on engineering projects they had a schedule of fees based on nine percent up to $200,000.00 and that had the State required the fee to be seven percent after $200,000.00, it was certain that Claimant would have negotiated a contract based on such a rate of payment. However, since the written contract contained no such provision and there was no mention of a seven percent figure until nine months after the work was done, we feel that justice requires the State to live up to its agreement as spelled out in the contract. Ambarann Corp. v. Old Ben Coal Corp. 395 Ill. 154, 69 N.E.2d 835 (841).

The State offered no explanation as to why the original contract did not set forth a graduated rate in accordance with what it refers to as the “policy” of the office. It prepared the contract and should have inserted a clause reducing the rate to seven percent if it wanted such an agreement.

Judgment is hereby entered for Claimant in the sum of $13,481.58.


text:
    (No. 6958
    Montgomery Elevator Company, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 7, 1977.

    Grady F. Holley, of Giffin, Willing, Linder, Newkirk, Cohen, Bodewes & Narmont, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Montgomery Elevator Company, seeks damages from the State in the amount of $8,832.00. The claim is founded upon a contract between the parties by which Claimant agreed to service elevators, dumbwaiters and escalators in the State Capitol complex during the period July 1, 1971, through June 30,1972. The contract provided for Respondent to pay Claimant the sum of $2,944.00 per month during each and every month of the contract. Claimant performed and was paid under the contract thru March 31,1972. At issue is whether Claimant should be paid for the months of April, May and June, 1972.

Respondent denies that it was obliged to pay Claimant for the final three months of Claimant’s contract. Respondent argues that it rightfully rescinded the contract on or about April 16, 1972, and that the State is therefore not obligated to pay Claimant for the last three months of the contract.

On March 30, 1972, a strike was called against certain elevator repair companies. Montgomery Elevator Company was among the companies struck by the International Union of Elevator Constructors. Claimant’s employees Michael Sanders and Everett Hof ele in Springfield, Illinois stopped working as a result of the strike. After the strike was called, Claimant attempted to, and did continue to, maintain preventative maintenance schedules with supervisory help, and notified Respondent that it was able to perform under the contract with supervisory personnel.

On or about April 2, 1972, an elevator emergency occurred on the capítol grounds. A supervisory employee of Claimant went to the grounds to assist in the emergency. As a result of the presence of that supervisory employee, a picket line was established by the International Union of Elevator Constructors at the Capitol Building, which caused union tradesmen working on renovative construction work at the Capitol Building to cease work. Claimant’s supervisory employee was asked to leave the Capitol Building by an employee of the Secretary of State, whereupon the tradesmen employed at that building resumed their work. Shortly thereafter, Respondent entered into a new contract for maintenance of the elevators with a different elevator company which was not the object of the strike.

Respondent argues that Claimant breached the contract by failing to have service available on a 24-hour a day basis, and, in addition, in failing to have more than one serviceman available in Springfield at all times and on the job Monday through Friday of each week from 8:00 a.m. to 5:00 p.m.

Claimant responds with the argument that maintenance calls during the first few days of the strike were handled by supervisory personnel who also responded to any emergency problems. Therefore, Claimant argues, it substantially complied with the contract. Claimant contends that it stood ready to perform its obligations, but was prevented from doing so by Respondent which ordered Claimant’s employee off of the job as a result of other tradesmen honoring a picket line.

Claimant was terminated within eight work days after the national strike occurred. There is no evidence in the record to justify the conclusion that Claimant failed to respond to emergency calls or failed to render adequate maintenance to the equipment during the first eight working days of April, 1972. Clearly, after Claimant was ordered by Respondent to remove its personnel from the State building complex, further performance under the contract would have been impossible.

Respondent does not argue that Claimant failed to perform such maintenance and emergency duties as were reasonably required under the contract prior to the strike, nor does Respondent argue that necessary maintenance and emergency work was not available after the strike. Respondent’s sole contention relates to whether the absence of two full-time employees in Springfield is sufficient to entitle Respondent to rescind the service contract and seek the services of another contractor.

Respondent relies on Wenthe Bros. v. State, 18 Ill.Ct.Cl. 32 (1948), for the proposition that strikes do not excuse the non-performance of contracts with the State in the absence of a strike clause. Respondent’s reliance is misplaced for the reason that in Wenthe the Claimant was prohibited from performing due directly to a strike. In the present case, the Claimant was asked to leave the Capitol grounds by the State, because of the effect that Claimant’s personnel were having on other workmen completing other work on the Capitol grounds.

Rescission is an extreme right, and should not be permitted unless the breach is total, substantial and fundamental, and defeats the object of the contract. I.L.P. Contracts, § 347. There is no proof in the present record that the object of the contract was defeated by a breach as Respondent contends. Rather, it appears that Claimant was prevented from performing by Respondent, which ordered Claimant’s personnel from the Capitol complex without justification.

It is therefore ordered that Claimant be awarded the sum of $8,832.00.


text:
    (No. 7088
    John W. Young, Claimant, v. State of Illinois, Respondent.

      Order filed May 12, 1978.

   Polos, C.J.

This is an action pursuant to Section 8(c) of the “Court of Claims Act,” Ill.Rev.Stat. Ch. 37, §437.8(c), to recover for time unjustly served in prison.

On September 5, 1973, this cause was continued generally to permit Claimant to attempt to obtain a pardon on grounds of innocence, in accordance with the amendment to Section 8(c) which became effective on October 1,1972. That amendment made a pardon on grounds of innocence a condition of this Court’s jurisdiction to hear and determine claims for time unjustly served in prisons of this state.

Since the date of our order continuing this case generally Claimant has failed to obtain a pardon, and has now moved to restore this case to the Court’s active calendar. Claimant contends that as his conviction was reversed by the Illinois Appellate Court it is unnecessary for him to obtain a pardon on grounds of innocence.

Respondent has moved to dismiss this claim, on the ground that in failing to obtain a pardon on grounds of innocence Claimant has abandoned his claim, and that in the absence of such a pardon, this Court has no jurisdiction to consider this matter.

On consideration of the foregoing motions, the Court finds that in failing to obtain a pardon on grounds of innocence since September 5, 1973, when this cause was continued generally to permit him to do so, Claimant has failed to prosecute this action. The Court further finds that in the absence of a pardon on grounds of innocence, it is without jurisdiction to consider this claim.

It is therefore ordered that Respondent’s motion to dismiss this cause be, and hereby is, granted and this cause is hereby dismissed.


text:
    (No. 73-CC-0022
    Henry Y. Nishi, Administrator of the Estate of Sofia Nishi, Deceased, Claimant, v. State of Illinois, Department of Mental Health, Charles Reed Medical Center, Respondent.

      Opinion filed February 27, 1978.

    O’Brien & Trittipo, Ltd., by Donald V. O’Brien, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Poch, J.

The Claimant, Henry Y. Nishi, Administrator of the Estate of his deceased wife, Sofia Nishi, brings this claim seeking $100,000.00 in damages due to the death of his wife while she was a patient at the Charles Read Mental Health Center in Chicago, Illinois, an institution operated by the Respondent for treatment of the mentally distressed. At the time of her death on March 30,1972, the statutory limit on the amount of damages recoverable was $25,000.00, Ill.Rev.Stat., Ch. 37, §439.8, 1957. Subsequent to the death of Mrs. Nishi, the General Assembly in 1972 increased the limit on damages to $100,000.00. The Claimant seeks to recover the higher amount regardless of when the cause of action accrued.

The parties entered into various stipulations and adduced evidence before a Commissioner of this Court, Joseph P. Griffin. The evidence showed that Sofia Nishi, then age 39, entered the Read Center as a voluntary patient on March 21, 1972. She responded to treatment and was to be discharged later to be an outpatient at the hospital. On March 30,1972, Mrs. Nishi was strangled to death by Manfred Sadowski, who was a patient at the hospital. Sadowski, who was in his fourth admission, had previously attacked a social worker and a female patient at a half-way house where he had been a resident. Sadowski was indicted by the Grand Jury of Cook County but never stood trial on the charge of murder because he was found mentally unfit to stand trial.

Henry Nishi, husband of the decedent and Administrator of her Estate, testified that she was 39 years old and a graduate of junior college in Puerto Rico. She had taught grammar school for eight or nine years before coming to the United States in 1964. She had been a full time resident of Chicago since 1969. Mr. Nishi testified that his wife had worked for several electronic companies in Chicago and also worked as a baby sitter for her next door neighbor, Joyce Tajnia. Mrs. Nishi’s burial expenses, including the removal of her remains to Puerto Rico, amounted to approximately $2,000.00.

The Respondent called as its only witness Daniel Greenberg, the administrator of Chicago Reed Mental Health Center. On the date of Mrs. Nishi’s death there were 28 patients in her unit. During that time, the unit was supervised by only one or two staff people to care for the patients who suffered from varying degrees of mental distress.

The Court finds that the Respondent was negligent in failing to exercise adequate supervision over the decedent in order to protect her from injury and death. The Respondent had previous notice that Manfred Sadowski had violent tendencies which had resulted in previous attacks on individuals while he was in State custody. The Respondent breached its duty by failing “to exercise reasonable care in restraining and controlling dangerous, insane persons committed to its custody, so that they will not have the opportunity to inflict a foreseeable injury upon others.” Choiniere v. State, 30 Ill.Ct.Cl. 174, 176 (1974), citing with approval Robinson v. State, 25 Ill.Ct.Cl. 67, 74 (1965).

The Claimant and the deceased were free of any contributory negligence in this matter.

The Claimant is, therefore, entitled to an award for damages due to the decedent’s death. The Claimant seeks an award of $100,000.00. The Respondent asks that the statutory limit on damages in the sum of $25,000.00, which was in effect when the cause of action accrued, controls in this case.

The Court has carefully considered the authority cited and arguments made by the parties on the issue of damages. The Court in Theodosis v. Keeshen Motor Express Co., 341 Ill.App. 8, 92 N.E.2d 794 (1950) held that an increase in the amount of recovery in the “Wrongful Death Act” applies prospectively only. This Court in Shockley v. State, 21 Ill.Ct.Cl. 346, 349 (1952) found the reasoning in Theodosis, supra, to be persuasive and held that a Claimant is limited to the statutory amount at the time the cause of action accrued. Thus the date of injury of death controls, not the date of the award. The rule in Shockley, supra, has been cited with approval and followed by the Court in Riggins v. State, 21 Ill.Ct.Cl. 434, 439 (1953); Shaggs v. State 21 Ill.Ct.Cl. 418, 422 (1953); Wendley v. State, 24 Ill.Ct.Cl. 273, 276 (1961); Burgett v. State, 30 Ill.Ct.Cl. 510, 515 (1975). There is nothing in the legislation increasing the limit on damages to indicate the General Assembly desired to make the change in the limit retroactive. Therefore, the statutory limits on damages that can be awarded in this case is $25,000.00.

An award is entered in favor of the Claimant, Henry Y. Nishi, Administrator of the Estate of Sofia Nishi, deceased, in the sum of $25,000.00.


text:
    (No. 73-CC-0350
    Acme Carrier, Inc., Claimant, v. State of Illinois, Respondent.

      Opinion filed July 18, 1977.

    Heyl, Royster, Voelker & Allen, Attorneys for Claimant.
    William J. Scott, Attorney General; Stephen A. Tagge, Special Assistant Attorney General, for Respondent.
   Polos, C.J.

Claimant, Acme Carrier, Inc., has brought this action to recover for damages to its tractor-trailer, sustained on May 26, 1972, when it collided with a State vehicle..

The facts are not in dispute. On May 26, 1972, employees of the Department of Transportation of the State of Illinois were engaged in emergency patching on the Calumet Expressway at about 100th Street in Chicago, Illinois. It was a moving operation, involving two state vehicles. The first vehicle was a four-ton dump truck which pulled an asphalt heating kettle. The second vehicle, which trailed the first vehicle, was a tandem truck bearing a large sign reading “DO NOT FOLLOW”.

Five State employees were involved in the patching. The vehicles had stopped in the center of the three westbound lanes of the Calumet Expressway when the accident occurred. The dump truck was approximately five feet in front of the hole that was being patched, and the tandem truck bearing the warning sign was approximately 30 feet to the rear of the dump truck.

Claimant’s truck was being driven by one Alonzo Cummings, its employee. Cummings testified that he had been driving in the center of the three westbound lanes, following an automobile carrier truck. He said that the truck, which completely blocked his vision to the front, suddenly moved to another lane, and he saw the State dump truck stopped in the center lane. He said he did not have enough time to stop his truck, and swerved to the left. The right side of his tractor-trailer struck the state vehicle, skidded and overturned.

Cummings said that he saw no warning signs, flagmen or other indications that work was being done on the highway, and that a vehicle was stopped on the road. He said that he was traveling about 35 to 40 miles per hour and was about 30 feet behind the automobile carrier when it moved from the center lane. He was 65 to 70 feet from the State truck when he first noticed it.

The State stipulated that Claimant sustained damages in the amount of $6,336.58 as a result of the accident.

Nathaniel Moore and Thomas Hollingsworth, called as witnesses by Respondent, both testified that they were members of the patching crew on the day of the accident. Their testimony established that the crew had a flagman behind the rear truck, who directed traffic to either side of the repair vehicles. Moore also said that the rear truck had a large sign reading “DO NOT FOLLOW,” and was equipped with a mars light on the top of the cab and a caution light on the bumper. On both sides of the Mars light there were two flashing red lights.

Claimant contends that Respondent was negligent in failing to give proper warnings to traffic on the Calumet Expressway that State vehicles were stopped upon the highway. Respondent denies that it was negligent, and in turn contends that Claimant’s driver was not in the exercise of reasonable care for his own safety at the time of the accident.

The State is not an insurer of the safety of all vehicles which travel upon its highways. However, the State does owe a duty to those upon its highways to maintain the highways in a reasonably safe condition for the purpose for which they are intended. Schuck v. State, 25 Ill.Ct.Cl. 209; Emm v. State, 25 Ill.Ct.Cl. 213. In order to recover in this action, Claimant bears the burden of proving, by a preponderance of the evidence, that State breached its duty of reasonable care; that the State’s breach of duty was the proximate cause of Claimant’s injury; and that Claimant was free of contributory negligence.

We need not reach the issue of whether Respondent provided adequate warning of the patching operation under the circumstances, because we are pursuaded that Claimant, through its employee Alonzo Cummings, was not in the exercise of due care at the time of the accident.

Claimant’s own evidence shows that Cummings, driving a tractor trailer at 35 to 40 miles per hour, was following another large truck by only 30 feet, although he was unable to see beyond the truck he was following. Cummings thus admits a violation of Ill.Rev.Stat., Ch. 95 1/2, §ll-710(a), which provides:

“(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

In fact, Cummings testified that due to the speed and weight of his vehicle, he could not stop in time to avoid the collision once he saw the State repair vehicles.

It also appears that Cummings violated Ill.Rev. Stat., Ch. 95 1/2, §ll-710(b), which provides, in substance, that a vehicle of the type being driven by Cummings may not follow within 300 feet of another vehicle of the same type.

The Court must therefore conclude that Claimant, through its employee Cummings, was not in the exercise of due and reasonable care and caution at the time of the accident, and that this lack of due care contributed to the damage sustained by Claimant.

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


text:
    (No. 74-CC-0058
    Dorothy Todd, Administratrix of the Estate of Ronald Stege Todd, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 13, 1978.

    Edwin M. Berman, of Berman & Newman, Attorney for Claimant.
    William J. Scott, Attorney General; Richard Grossman, Assistant Attorney General, for Respondent.
   Holderman, J.

This action is based on a claim of negligence resulting in the death of Ronald Stege Todd, on October 9,1972, at the Madden Center, a State of Illinois facility.

The deceased had noticeable behavior changes after his wife’s pregnancy was terminated in 1971 due to the death of the fetus. He sought and received the attention of Dr. Bernard R. Kirk, a psychiatrist, early in 1972. Dr. Kirk signed commitment papers for Ronald Todd on September 28,1972, and he took two months off work during March and April of 1972, at which time he took weekly treatments.

Todd had previously been working as a meat cutter at Dominick’s for approximately six years, with a history of regular attendance at a gross pay of $226.00 per week.

The record indicates that on at least two occasions he had tried to kill his wife and that there were several suicide attempts.

It is quite evident that for some period of time this man had undergone considerable emotional stress and was acting in a completely irrational manner.

On September 29, 1972, Todd voluntarily committed himself to Madden Center where he was examined by Dr. Rucci, an employee of the facility. Although Dr. Rucci knew of Dr. Kirk’s treatment, he never contacted him relative to the treatment given Todd. He continued using the same two drugs Dr. Kirk had given Todd, but removed from him all medication on October 5,6 and 7 because of side effects.

On October 6,1972, Dr. Rucci found that Todd was still suicidal and homicidal but did not place him on suicidal precaution. The only thing done, was to place him in a room used for individuals in this condition called a “choir room.”

On October 9, 1972, Todd was visited late in the afternoon by his wife who left fairly early in the evening. His disappearance was discovered about 9:00 that evening. His body was discovered the next day at the bottom of a flight of stairs which, according to the meager information in the records, was located some distance from the place where the patient was incarcerated.

The autopsy report showed six milligrams percent alcohol in Todd’s blood and an analysis of bile and urine showed the presence of 1.0 mg. percent and 3.0 mg. percent morphine perspectively. There was no explanation as to how the pure morphine was found in the bile.

Following the death of the deceased, a bottle of vodka was found under the mattress of Todd’s bed.

Dr. Alexis Arieff was the Claimant’s expert witness. His major disagreement with Dr. Rucci’s treatment was that he would have placed Todd in a closed facility that does not have open doors. Madden Center has no such facilities.

After the deceased’s disappearance, the individual in charge of the floor stated that a report was made to security forces of his disappearance. There is no report of any kind or character indicating what, if any, search was made by security. There is also no evidence to show when the body was found or whether it was found by security or by chance.

This record relative to the efforts made by the personnel trying to locate the missing individual leaves many questions unanswered.

The record disclosed that the deceased had been granted a pass by Dr. Rucci on October 4,1972, allowing him to walk around the grounds. There is nothing in the record to indicate any change after the finding of Dr. Rucci on October 6,1972, that the deceased was still suicidal and homicidal. The record is void as to any change in treatment of precautions after that date except for the placing of the deceased in the “choir room.”

This Court has previously held on many occasions that the State of Illinois is not an insurer of mental patients.

A hospital is not an insurer of a patient’s safety, but owes the patient the duty of protection, and must exercise such reasonable care as the patient’s known condition may require. Karluski v. Board of Trustees, University of Ill. 25 Ill.Ct.Cl. 295.

When an act that has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as that in the ordinary course would not have happened if those who had management used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the parties charged, that it arose from the want of proper care. Hall v. U.S. 136 FS 187, (La. 1965) Restated in Ill. Law, 36-54 (Professional Malpractice Res Ipsa Loquitur) Westschester v. State of Illinois, 27 Ill.Ct.Cl. 327 (1971).

It has also been held that reasonable caution must be used for the protection of patients on welfare.

After reading the very volumnious record in this case, the Court still has many unanswered questions regarding the precautions, or lack of precautions, taken by the State. The record is completely silent as to whether or not there was more than one search made of the deceased’s bed, whether searches were regularly made after the deceased had visitors, whether or not visitors were warned about bringing alcoholic beverages for the patient’s use, and it does not indicate whether or not the bed of the deceased was ever searched after he was placed in there and prior to the discovery of the body.

The record does not show what type of search was made for the deceased except for a perfunctory ten minute search by the people in charge of the floor on which he was located and there is a complete lack of evidence showing whether any search was made for him by security and, if so, whether or not the area in which the body was found was searched.

For the above reasons, it is the opinion of the Court that the State was negligent in the care of an indi vidnal who, on the day prior to his death, had been pronounced suicidal and homicidal and yet was not placed on suicidal and homicidal precautions even though these findings were by the institution’s own doctor. This lack of precaution, plus the finding of the alcoholic beverage in the bed of the deceased, is very strong evidence to the effect that the State violated its duty to give proper supervision to the deceased and that, as a result thereof, the deceased met his death.

The undisputed medical testimony is to the effect that the deceased was an individual with homicidal tendencies as well as suicidal tendencies. It would appear to the Court that an individual who has homicidal tendencies which could endanger the lives of innocent people would require a very high degree of care and supervision, all of which is completely lacking in the present case. It is indeed fortunate that the suicidal tendencies, if that was the cause of death, prevailed over those of the homicidal tendencies; otherwise we could have had several real tragedies to contend with.

As to damages in this case, there are some real questions raised. The evidence indicates that this man had been a regular worker earning approximately $226.00 per week. As to the future employment of this individual, the evidence presented showed that a high percentage of individuals with this type of affliction do regain a normal life.

The record indicates, however, that this individual was deteriorating very rapidly and there is substantial question as to how many years he would have been able to continue in his occupation. The record would indicate, at best, that at the rate of deterioration he was showing at the time of his death, his workable life would be of comparatively short duration.

The Court therefore makes an award in the amount of $58,750.00 to Dorothy Todd, the wife and sole surviving next of kin of the deceased.


text:
    (No. 74-CC-0075
    Johnnie Kennedy, Claimant, v. State of Illinois and State of Illinois Department of Transportation, Respondent.

      Order filed November 23, 1977.

   Holderman, J.

This matter comes before the Court on a motion to dismiss filed by Respondent.

The motion to dismiss sets forth the following:

“1) That a cause of action entitled Johnnie M. Kennedy v. Clairmont Transfer Co., Warner Brick and Daniel P. Gleason, bearing General No. 75 L 2923, and consolidated with the cause of action entitled Cecelia Costanzo, Paul Costanzo, deceased v. Steel City Cartage Co., and Johnnie Kennedy, was tate of recently tried in the Circuit Court of Cook County in November, 1976.
2) That Paul Costanzo, deceased was the State of Illinois employee, agent and servant present on behalf of the State of Illinois at the time of the occurrence which is the subject matter of this cause of action.
3) That on November 29,1976, the Honorable Judge James C. Murray after hearing all the evidence in said cause, directed a verdict in behalf of Cecelia Costanzo, Administrator of the Estate of Paul Costanzo against Steel City Cartage Co. on the issue of contributory negligence on the part of Paul Costanzo, specifically finding that Paul Costanzo was, as a matter of law, not guilty of any (i.e. contributory) negligence."

The motion to dismiss further states that the Steel City Cartage Co. vehicle was operated by the current plaintiff, Johnnie Kennedy, and that during the trial of the consolidated causes of action, a directed verdict was entered on behalf of Clairmont Transfer Company and Warner Brick against the plaintiff, Johnnie Kennedy.

The motion further sets forth that the Court had determined that Philip Costanzo was not guilty of any negligence and therefore, his principal, the State of Illinois, defendant in this cause, is as a matter of law, also not guilty of any negligence.

The motion further sets forth that since the State of Illinois has in effect been found not guilty by another Court of competent jurisdiction, a finding of not guilty should and must be entered herein on behalf of the State of Illinois and the State of Illinois Department of Transportation.

It appearing to the Court that the motion of Respondent is correct and that the State of Illinois has in effect been found not guilty by a Court of competent jurisdiction, motion to dismiss is hereby granted and said cause is dismissed.


text:
    (No. 74-CC-0479
    Egizii Electric, Inc., Claimant, v. State of Illinois, Respondent.

      Opinion filed March 28, 1978.

    Stepehn Tagge, Attorney for Claimant.
    William J. Scott, Attorney General; Douglas Olson, Assistant Attorney General, for Respondent.
   Poch, J.

The Claimant, Egizzi Electric, Inc., entered into a contract with the Secretary of State of the State of Illinois to perform electrical work on the State Capitol Building. Claimant’s contract with the State was entered into on August 17, 1970. Claimant was to perform electrical contracting work related to the complete furnishing and installation of the rehabilitation of the State Capitol Building. The net contract amount was in the sum of $732,150.00. Claimant seeks an award for damages due to delays caused by Respondent.

Subsequent to Claimant’s commencement of work upon the project, the project was changed, both in nature and scope, by decisions of the Illinois State Legislature, the Space Needs Commission, and the Secretary of State. As a result of these changes, much of the project covered under Claimant’s contract was done by change order.

Between July 1,1972, and April 3,1973, the approval of change orders was delayed by the office of the Secretary of State pending review of the entire project. Such portions of the contract which could have been completed after July 1, 1972, without change orders were completed by Claimant at the expenditure of 4,158 man hours. Such portions would have been completed by July 1, 1972, except for the changes required by Respondent.

The parties have stipulated and agreed that the proximate damages to Claimant as a result of the above and foregoing circumstances total $36,121.56. This sum includes damages sustained by Claimant as a result of the increase of wages of workmen due to the delays, additional costs in job demobilization and remobilization of Claimant’s work force, equipment and material; demobilization, transportation and loss of productivity on remobilization; continued costs of builders’ risk insurance; continued costs to Claimant’s foreman; increased material costs; additional cost of tool rental; and additional overhead costs.

Respondent offers no argument or authority in opposition to the claim presented.

If one party hinders or delays the performance by the other party of a contract, the party causing that hindrance or delay has breached the contract. Corbin on Contracts, Section 947.

Where a party to a contract has caused a breach, that party is liable for the increased costs and damages directly and proximately caused by such breach. Meyer Machine Inc. v. State, 27 Ill.Ct.Cl. 72, 76 (1970). Tower Communications Co. v. State, 26 Ill.Ct.Cl. 346, 350 (1968).

The Respondent has stipulated that Claimant’s damages were a direct and proximate result of the Respondent’s action in causing the delays.

The Court therefore finds that Claimant is entitled to an award for the damages sustained.

Claimant is hereby awarded the sum of $36,121.56.


text:
    (No. 74-CC-0584
    Eileen M. Fisher, Individually as Administratrix of the Estate of Kenneth L. Fisher, Deceased, Claimant, v. State of Illinois, Respondent.

      Order filed November 10, 1977.

   Holderman, J.

Claimant filed a claim against the State of Illinois alleging that on or about March 23, 1972, Claimant’s intestate was operating a 1966 Rambler automobile in a southerly direction along and upon Tiskilwa Road at or near the Log Cabin curve in Bureau County, Illinois.

At that point, according to the complaint, the intersection was constructed in such a manner that motorists travelling in a southerly direction on Tiskilwa Road on dark nights failed to see that the Tiskilwa Road did not continue in a southerly direction but curved sharply to the west.

The complaint also alleges that prior to the time of the occurrence resulting in the death of the intestate, the Respondent caused and permitted a light pole to be erected alongside said highway in such a position that the southbound motor vehicles leaving the travelled portion of the highway and onto the shoulder thereof would collide therein.

Complaint further alleges that Claimant’s intestate was in all respects in the exercise of due care and caution for the safety of his person and property.

This matter comes before the Court on a motion filed by the Respondent to dismiss said complaint. Attached to Respondent’s motion for summary judgment is the deposition of Eileen M. Fisher which was taken for the purpose of discovery. Eileen M. Fisher is Administratrix of the Estate of Kenneth L. Fisher, deceased, and is the Complainant in the original complaint, and at such deposition testified under oath.

The deposition discloses that on February 10,1975, in Cause No. 73 L 10, Eileen M. Fisher, individually and as Administratrix of the Estate of Kenneth L. Fisher, deceased, v. Merretta Hastings, d/b/a Underground Inn; Grace Lenihan, d/b/a The Oasis Tavern and Lounge; Ronald Moriarity, d/b/a The Clover Club and Mervin E. Hall and Joy Hall, d/b/a The Buffalo Inn, a certain judgment order was entered against said defendants, and each of them, in the sum of $16,000.00, which judgment was fully satisfied on February 10, 1975, based upon a cause of action arising under the “Dram Shop Act” of Illinois.

The deposition of Eileen M. Fisher shows that Kenneth M. Fisher, deceased, was intoxicated at 11:00 p.m. on March 22,1972, having had, since 9:30 p.m. on that day, five or six intoxicating drinks in the presence of Complainant.

In the complaint, Eileen M. Fisher stated that she and her children suffered damage in consequence of the intoxication of her husband, caused by the sale of intoxicants to him by the several defendants named therein.

Resondent bases his motion for summary judgment on the grounds that the decedent was not in the exercise of reasonable care at the time of the collision resulting in his death, and that his intoxication was the sole proximate cause of his death.

The evidence also discloses that the deceased was familiar with the road in question having travelled it for several years.

The question therefore resolves itself as to whether or not the intoxication would prevent recovery on the theory that the deceased was not in the exercise of due care at the time of the accident which resulted in his death.

This Court has taken the position that the State is not an insurer of every accident occurring on its highways. In Magnuson v. State of Illinois, 26 Ill.Ct.Cl. 98 (1967), the Court denied the claim where the evidence disclosed that the Claimant was aware of the condition of the roadway and had knowledge of the defect and with such knowledge did not exercise the degree of care which was required under the circumstances.

The evidence in the case at bar shows that the decedent had travelled the road in question in the presence of Claimant at least once a week for four years prior to the accident.

Respondent contends that the senses, judgment and faculties of Claimant’s intestate were affected by the alcohol so that he was unable to use the same degree of care, skill and judgment in the operation of an automobile which he otherwise would have exercised.

Respondent’s motion also calls the Court’s attention to the fact that the Circuit Court of Bureau County found that the decedent’s death was caused by his intoxication.

This Court has repeatedly held that before recovery can be had it must be shown that the individual who sustains an injury was in the exercise of due care and that the individual involved in the accident was free from contributory negligence. See Constance Kumiga v. State of Illinois, 26 Ill.Ct.Cl. 77; also Ruby Foreman v. State of Illinois, 26 Ill.Ct.Cl. 299.

It is the opinion of this Court that decedent was not in the exercise of due care at the time of the accident and that his intoxication was the proximate cause of the accident.

The Court agrees that Claimant is now estopped to assert that the decedent was free from contributory negligence by reason of the judgment of the Circuit Court of Bureau County.

Motion for summary judgment is hereby granted and said cause is dismissed.


text:
    (No. 74-CC-0619
    Paul Bargas and Thomas Zboralski, Claimants, v. State of Illinois, Respondent.

      Order filed January 7, 1976.

   This is one of several actions pending in the Court of Claims wherein inmates of Illinois penal institutions are seeking compensation for items of personal property allegedly lost from their cells. In each such action the Claimant alleges that he possessed certain items of personal property of minimal extrinsic value which he kept in a cell at a penal institution maintained and operated by Respondent. They further allege that the property was taken from their cells while they were elsewhere in the prison, and that the proximate cause of the loss was the failure of the Respondent to safeguard their property.

Respondent has moved to dismiss this action on the ground that the complaint fails to state a cause of action upon which relief can be granted. More specifically, it is Respondent’s contention that the State does not owe a duty to inmates of its penal institutions to safeguard their personal property.

We have previously held that inmates of Illinois penal institutions who possess valid causes of action are not foreclosed from bringing suit in the Court of Claims. Moore v. State of Illinois, 21 Ill.Ct.Cl. 282 (1951). The issue which is presented here is whether a cause of action lies against the State where personal property disappears from the cell of an inmate of a penal institution.

Claimants do not contend that agents of Respondent took their property, or acquiesced in its disappearance. Rather, Claimants assert that Respondent should have taken steps to safeguard their property from pilferage by other inmates. Claimants therefore seek to charge Respondent with responsibility for the independent criminal acts of other inmates.

We can find no basis for imposing such a burden upon the State. The State if 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.

Our conclusion is buttressed by the “Local Government and Governmental Employees Tort Immunity Act,” Ill. Rev. Stat. Ch. 35, Sec. 1-101, et. seq., which provides, in pertinent part:

“Neither a local public entity nor a public employee is liable for failure to provide a jail, detention or correctional facility or if such facility is provided, for failure to provide sufficient equipment, personnel or facilities therein.” [§4-103]

The legislative purpose of this statute is clear: the treasuries of public entities are not to be opened to inmates of penal institutions claiming that they were not afforded adequate facilities or supervision. We are cognizant that the State is not specifically named in this statute, and that Claimants do not directly claim that they were afforded inadequate facilities. However we believe that this statute, directed at an analagous situation, clearly expresses a legislative intention inimical to Claimants’ position.

The Court does not deprecate the value to Claimants of their allegedly lost property, but the State of Illinois cannot be held liable for the willful acts of unknown persons which result in pilferage from penal institutions.

The Court has been advised that our prison authorities have a sympathetic understanding of the problem which gave rise to this claim, and that efforts are being made to provide an administrative remedy for all claims of this nature. The Court looks with favor on such efforts, but they are not a factor in our conclusion as to the state’s legal liability in this claim.

It is hereby ordered that the Respondent’s motion to dismiss this action must be and is hereby granted. This claim is dismissed.

It is further ordered that an identical order of dismissal be entered in each cause pending in the Court of Claims wherein an inmate of a penal institution seeks compensation for property allegedly lost from his cell.

       This factual situation is to be distinguished from that found in Doubling v. State of Illinois, 32 Ill.Ct.Cl. 1, wherein an inmate alleged that his personal property was taken from him by prison authorities during his transfer to another institution, and never returned to him.


text:
    (No. 74-CC-0624
    Jack Kriesel, Father and Next Friend of Donald L. Kriesel, a Minor, Claimant, v. State of Illinois, Respondent.

      Opinion filed June 15, 1978.

      Charles Kraut, Attorney for Claimant.
    William J. Scott, Attorney General; William J. Karaganis, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant in this cause is seeking to collect for injuries sustained while walking on the premises of the Illinois Vehicle Testing Facility at 5301 West Lexington Avenue in Chicago, Illinois. It is the contention of the Claimant that while walking on these premises, he stepped on a piece of broken glass which went through his shoe into the bottom of his foot resulting in the injury.

Claimant, age 17, on the evening in question went to the Secretary of State, Illinois Vehicle Testing Facility, for the purpose of taking a driver’s test at about 6:00 p.m. with his driving instructor. Prior to the taking of the test, the instructor and Claimant walked to the testing course for the purpose of familiarizing Claimant with the course. In the driving area were man-made islands containing dirt and weeds. While walking across one of the islands, the injury occurred.

As a result of the injury, Claimant was required to get five sutures in the bottom of his foot, resulting in scarring. He paid $43.25 in medical bills, lost shoes which were valued at $14.00, and lost $23.00 in wages.

Respondent produced a supervisor of the testing area, Mr. W. Williams, who testified as to procedures used by the Secretary of State in cleaning the area. His testimony was to the effect that the State employed a janitorial service for the purpose of maintaining the grounds of the facilities, including debris removal, who performed their work on a daily basis. Mr. Williams denied seeing any broken glass on the facility himself in November, 1973, and denied that any of his employees had reported such information to him.

This Court has held many times that the State is not an insurer of the premises over which it has control and unless it has had actual notice or knowledge of the defect complained of, the State is not liable. The State does have the duty to maintain the premises owned or controlled by it in a reasonably safe condition for the purpose for which they are intended. The Claimant in this case has failed to prove that the State had knowledge or should have had knowledge of the condition causing the injury complained of.

Therefore, in line with 30 Ill.Ct.Cl. 410 and 417, this Court holds that Claimant failed to prove that the State either had notice of knowledge of the defect complained of and therefore the State is not responsible.

Award is hereby denied.


text:
    (No. 74-CC-0666
    Metal Air Corporation, Claimant, v. State of Illinois, Respondent.

      Order filed September 22, 1977.

   Holderman, J.

This matter comes before the Court on motion of Respondent to dismiss said cause filed on August 12, 1975, and motion filed by Claimant on March 18,1977, to rule on the August 12,1975, motion of Respondent to dismiss.

It appears to the Court that on February 17, 1977, Respondent filed a motion to continue generally.

The Court, being fully advised in the premises, finds:

The motion to dismiss sets forth that in 1964 Metal Air Corporation, along with other various and sundry companies, associations, etc. developed schemes for. rigging bids involving their type of work. The purpose of the scheme was to allow a designated bidder to bid upon a particular project and the rest of the contractors would then submit higher bids.

The Respondent, in its motion, cited the following sections of the statute:

“8. Participation by the Claimant herein in the arrangement described constituted a violation of Section 3 of the “Illinois Anti Trust Act” found in Ill. Rev. Stat., Ch. 38, paras. 60-1 through 60-11.

9. The participation in the arrangment described above constituted a fraud against the State in violation of Sec. 14 of the “Illinois Court of Claims Act.”

10. Illinois Rev. Stat., Ch. 127, para. 132.2, 1973 which is section 2 of the “Illinois Purchasing Act” states as follows:

“It is the purpose of this Act and is hereby declared to be the policy of the State that the principal of competitive bidding and economical procurement practices shall be applicable to all purchases and contracts by or for any State agency.”

Section 10 of the “Illinois Purchasing Act” provides as follows:

“Any contract entered into or purchase or expenditure of funds by a State agency in violation of this Act or the rules and regulations adopted in pursuance of this Act is void and of no effect.”

The 1969 Illinois Revised Statutes contains slightly different phraseology in Sections 2 and 10 of the “Illinois Purchasing Act” as follows:

“Sec. 2. It is the purpose of this Act and is hereby declared the policy of this State that the principle of competitive bidding and economical procurement practices shall be applicable to all purchases and contracts for which State funds are expended.”
“Sec. 10. Any contract entered into or purchase or expenditure of State funds made in violation of this Act or the rules and regulations adopted in pursuance of this Act is void and of no effect.”

Respondent concludes its motion by stating that the Claimant’s collusive participation in the bid rigging scheme violates both the letter and the spirit of the “Illinois Purchasing Act” and thereby pursuant to Section 10 of the Act renders the contract upon which this claim is based to be totally null and void.

It appears to the Court that Respondent’s motion to dismiss is correct. It is the opinion of the Court that this disposes of all the other matters pending and said cause is hereby dismissed.


text:
    (No. 74-CC-0725
    Anthony M. Peccarelli, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 9, 1978.

    Mark Bischoff, Attorney for Claimant.
    William J. Scott, Attorney General; Richard Grossman, William Karaganis and Saul R. Wexler, Assistant Attorneys General, for Respondent.
   Polos, C.J.

Claimant Anthony M. Peccarelli, an attorney at law, has brought this action to recover the sum of $2,637.68 which he alleges he is due for services rendered to the Illinois State’s Attorneys Association. Claimant alleges that in September, 1971 the Illinois Law Enforcement Commission (hereinafter “the Commission”) made a grant of money to the Illinois State’s Attorneys Association (hereinafter “the Association”) for the purpose of conducting public hearings regarding the jurisdiction of the State’s Attorneys Office. Claimant entered into a contract with the Association, which called for him to act as a consultant at the rate of $135.00 per day. Claimant contends that he performed all work required under the contract but that he has received only partial payment.

It is Respondent’s position that as the Association was not a state agency, Claimant had no contractual relationship with the State and that he has improperly brought suit in the Court of Claims to enforce a liability of the Association. Respondent also disputes Claimant’s contention that he is due an additional $2,637.68 for his services.

Before turning to the substantive issues herein involved, we will first discuss the procedural status of the case. After numerous extensions, Claimant’s brief was filed on April 14, 1976. On August 19, 1976, Respondent filed a motion for finding for Respondent in which it contended that this Court did not have subject matter jurisdiction of this claim. On September 27, 1976, Claimant filed a response to Respondent’s motion for a finding, on the ground that Respondent had failed to file its brief in accordance with Rule 18 of the Court of Claims. In reply, Respondent contends that it is not required to file its brief before its motion for a finding for Respondent is determined.

We find no basis in the “Court of Claims Act” for the State’s contention that it is not required to answer Claimant’s brief until its motion for a finding is resolved. Respondent’s motion simply raises a jurisdictional argument which should have been incorporated in its brief. The time for filing Respondent’s brief has long since expired, and Respondent has not requested an extension.

Accordingly, the Court will consider “Respondent’s Motion for a Finding” as its brief in this action, and will decide the jurisdictional issue raised therein during the course of this opinion.

It is Respondent’s position, as stated in its “Motion for a Finding,” that Claimant had no contractual relationship with the State of Illinois. Respondent asserts that Claimant’s contract was with the Illinois State’s Attorneys Association, a private corporation, which cannot be sued in the Court of Claims. Respondent further asserts that the Illinois State’s Attorneys Association was not acting as an agent of the State of Illinois when it entered into its contract with Claimant. Respondent in particular points to that portion of Section 8 of the “Court of Claims Act,” Ill. Rev. Stat., Ch. 37, § 439.8, which provides that this Court has jurisdiction over “all claims against the State founded upon any contract entered into with the State of Illinois” (emphasis added).

The second issue to be determined, assuming the Court finds it has jurisdiction over the subject matter of this action, is whether Claimant is entitled to additional compensation for services which he rendered to the Illinois State’s Attorneys Association.

As to the first issue, the Court finds that the Claimant has established that at the time he entered into the contract with the Illinois State’s Attorneys Association, the Association was acting as the agent of the State of Illinois. Claimant introduced into evidence a letter dated May 17, 1972, from the Illinois Law Enforcement Commission to the Illinois State’s Attorneys Association, regarding the grant from the Commission to the Association to fund the Association’s study. In that letter the Commission authorized the hiring of Claimant subject to certain contractual provisions. Further, the Executive Director of the Illinois State’s Attorneys Association testified that the Association was bound by the Fiscal Guidelines and Regulations of the Commission. In sum, the record establishes that Respondent made a grant of money to the Illinois State’s Attorneys Association, authorized the hiring of Claimant as a consultant, and imposed its fiscal guidelines as to the expenditure of the grant. We conclude that the Association was acting on behalf of the State in making its research study and in entering into the contract with Claimant.

Claimant’s contract with the Association was signed on June 7, 1972. Prior thereto, on March 24, 1972, Claimant had attended a meeting of the Association’s Mánaging Board, along with one Patrick Delfino, an employee of the Commission. At the meeting it was agreed that Claimant would be paid $135.00 per day for consulting work, but that his fee would not exceed the sum of $4,050.00. It was further agreed that he would be allowed $950.00 for travel expenses.

During the course of the meeting Claimant raised the question of what constituted a “day” under the terms of the agreement. Mr. Delfino said that a “day” referred to an eight hour working day. Claimant said he would not accept a fee less than $35.00 per hour. The issue was not resolved at the meeting and when the contract was signed on June 12, 1972, the term “day” was not defined. The contract provided, in pertinent part:

“The project agrees to compensate the consultant at the rate of $135.00 per day for his services, but in no event shall the total amount of compensation paid to the consultant exceed $4,050.00.

After the contract was signed, and after Claimant had substantially performed his services, the fiscal guidelines of the Illinois Law Enforcement Commission were amended to define a “day” as eight hours. If this definition is applied to the contract signed by Claimant, it would mean that he should be compensated at the rate of $16.87 per hour. The issue is thus whether Claimant should be compensated at the rate of $16.87 per hour, or at the rate of $135.00 per day, for the services which he performed.

Claimant rendered a statement to the Illinois State’s Attorneys Association for $4,050.00, the maximum payable under his contract. Claimant’s billing was for 33 days of work, broken down to 103.1 hours. After the statement was received the Director of the Illinois State’s Attorneys Association wrote to the Illinois Law Enforcement Commission, asking an opinion as to the correct rate of compens ation in light of the Commission’s amended fiscal guidelines. On December 1, 1972, Claimant was sent a check by the Illinois State’s Attorneys Association for $1,588.00, which Claimant cashed. On January 9, 1973, Claimant was sent a check for $327.46, purporting to be his full and final payment for services rendered under the contract. Claimant did not cash the check.

Claimant contends he is entitled to the full $4,050.00 available under the grant, plus an additional $175.68 for travel expenses. Claimant argues he performed services on 33 different days, and is therefore entitled to $135.00 per day, regardless of the amount of time he spent performing duties under the contract on any given day. He therefore claims the additional fees of $2,462.00, plus $175.68 for travel expenses.

Respondent argues that the term “day” as used in Claimant’s contract should be interpreted to mean an eight hour day, and that Claimant should therefore be compensated at the rate of $16.87 per hour. Respondent reasons that as Claimant worked a total of 103.1 hours he is entitled to a total of $1,739.78 plus travel expenses, and as he has already been paid $1,588.00, he is due only an additional $327.46, plus his travel expenses.

It is apparent that when the parties entered into their contract, there was no understanding as to the number of hours that would constitute a “day”. It would be wholly unreasonable to assume that the parties intended that Claimant should be paid $135.00 for working any part of a day. It would likewise be unfair to impose upon Claimant the amended fiscal guidelines adopted by the Commission after the agreement with Claimant was entered into, and after he had substantially performed his work.

Claimant made clear at the March 24,1972, meeting with the Association, at which the Commission was represented, that he could not perform the requested services for less than $35.00 per hour. Neither the Commission nor the Association objected to that rate and it appears that the parties contemplated that Claimant would be compensated at such a rate. Further, Claimant introduced expert testimony establishing that $35.00 per hour was a reasonable rate for the work he performed under the contract.

The Court therefore finds that Claimant is entitled to be compensated for his 103.1 hours of work at the rate of $35.00 per hour, or the sum of $3,608.50. He is also entitled to recover $175.68 for his travel expenses. As Claimant has already been paid the sum of $1,588.00, Claimant is hereby awarded the sum of $2,096.18.