text:
    (No. 91-CC-1416
    William Horton, Claimant, v. The State of Illinois and The Illinois Department of Corrections, Respondents.

      Opinion filed May 13, 1994.

    William Horton, pro se, for Claimant.

      Roland W. Burris, Attorney General (Elizabeth M. Looby, Assistant Attorney General, of counsel), for Respondents.
   OPINION

Mitchell, J.

This matter comes before the Court on the complaint of William Horton, Claimant, against The State of Illinois, Department of Corrections, seeking an award in damages for personal injury and loss of wages.

Claimant’s complaint arose from an incident on June 29, 1993, in which Claimant fell from a ladder while working in his assigned capacity as an asbestos removal worker. Following the incident, Claimant was terminated from his employment as an asbestos removal worker. Claimant seeks damages in the amount of $25,000 for pain and suffering resulting from the alleged personal injury. In addition, Claimant seeks “lay-in pay” in an unstated amount for the period of his injury.

Facts

On June 29, 1990, Claimant was incarcerated at Logan Correctional Center. On that date, Claimant was assigned as an asbestos removal worker which is classified as Worker Apprentice 1 at a pay rate of $1.50 per hour.

Claimant testified that on June 29, 1990 at about 8:20 a.m., pursuant to his supervisors orders, Claimant was standing on a ladder hanging plastic on the back end of a boiler when the job supervisor told Claimant to come down the ladder. Claimant slipped on some oil on the ladder and fell backwards, striking his back on a steel beam.

Claimant further testified that he had previously warned his supervisor of the presence of oil on the boiler on June 26,1990, June 27, 1990, and June 28,1990.

Following the incident, Claimant was examined by a nurse who evaluated the injury as back pain and noted no broken areas of skin. Claimant was referred to Dr. Ulrich.

Dr. Ulrich noted that Claimant had fallen approximately three feet from a ladder. The doctor assessed the injury as a contusion to the back area, ordered an x-ray of the spine and a lay-in for three days. The x-rays showed no evidence of fracture or dislocation. The doctor assessed the condition as a contusion, ordered a muscle relaxant for three days and a low bunk for ten days.

Following his three-day medical lay-in, Claimant was informed that he had been terminated from the asbestos crew. Claimant testified that he had not been involved in any incidents of discipline from the time of his initial assignment on February 22, 1990, to the date of injury on June 29,1990.

The Respondent introduced the following documents in support of the Claimants termination from the asbestos unit:

(1) A memorandum dated June 4, 1990, from Lt. Cox, Internal Affairs, evidencing an investigation into Claimants assertions that people are “out to get him.” The memo states that all Claimant’s assertions were found to be unsubstantiated. The memo further cites Claimant’s inability to accept orders. In conclusion, the memo recommends Claimant’s removal from the asbestos unit due to Claimant’s inability to accept orders and due to Claimant’s irrational behavior.

(2) A memorandum dated June 7, 1990, from Warden Bosse to the asbestos superintendent recommending Claimant’s removal from the asbestos unit.

(3) A memorandum dated June 18, 1990, from asbestos supervisor to the asbestos superintendent citing disturbances caused by Claimant and describing Claimant as a slow worker with a poor attitude who questions authority.

(4) A memorandum dated June 20, 1990, from asbestos superintendent Michael Shelton confirming Claimant’s removal from the asbestos crew.

Claimant introduced a letter dated January 30, 1991, from Marjorie Donahue, coordinator of inmate issues, which states that Claimant was compensated in full for the month of June, 1990 in the amount of $157.62. In addition, Claimant was compensated $51.67 for lay-in status in July, 1990 and that the full amount was posted to Claimant’s trust fund account.

The following evidence of Claimant’s back treatment subsequent to the injury on June 29, 1990:

On July 30, 1990, Claimant was seen on the sick call complaining of low back pain after jumping on his bed. Following an examination by a doctor on July 31, 1990, the doctor noted that Claimant had no restriction of movement and prescribed pain medication for seven days.

On September 15, 1990, Claimant was again examined by a doctor for an evaluation of back pain. The doctor noted tenderness due to back strain.

October 1, 1990, Claimant received an orthopedic consultation with Dr. Bowen. The examination revealed evidence of muscle spasm in the right parascapular area which was injected with lidocaine and aristospan.

Upon subsequent visits with Dr. Bowen on October 15, 1990, and November 12, 1990, Claimant reported a significantly improved condition.

A CT scan performed on November 23, 1990, failed to demonstrate evidence of fracture or dislocation. The doctor reported a normal cervical spine. An examination by Dr. Bowen on December 17,1990, revealed no abnormalities. Claimant reported no complaints. The doctor declined Claimant’s request for physical therapy in light of the fact there were no positive findings or complaints.

On June 11, 1992, Claimant began physical therapy citing the back injury on June 29, 1990. The physical therapy consultant advised exercises. Claimant returned for consultations on June 18, 1992, July 9, 1992, and July 16, 1992. On July 16, 1992, Claimant was discharged from physical therapy.

Claimant has repeatedly stated that he had not suffered any back pain or back injury prior to June 29, 1990. However, Claimant was, in fact, treated by the Inmate Health Service on February 7, 1988 for complaints of back pain.

Claimant seeks damages in the amount of $25,000 for pain and suffering and future complications or suffering as a result of the Respondent’s negligence. Claimant also seeks an unstated amount of back pay for the period of his lay-in.

I. Whether Respondent Is Liable to Claimant for Injuries Claimant Suffered While in the Course of Performing His Assigned Tasks

The law is clear, the State of Illinois owes a duty to inmates to provide them with safe conditions under which to perform their assigned work. To recover in a claim for personal injury against the State, Claimant bears the burden of proving, by a preponderance of the evidence, that the State breached its duty of care, and that the negligence of the State was the proximate cause of his injury. Reddock v. State (1978), 32 Ill. Ct. Cl. 611.

The Claimant testified that on June 29, 1990, he was working in his assigned capacity in the asbestos unit. At approximately 8:20 a.m. Claimant was standing on a ladder hanging plastic on the back end of the boiler. Pursuant to his supervisor’s orders, Claimant descended the ladder. As he descended the ladder, he slipped on some oil on the ladder and fell backwards, striking his back on a steel beam.

Prior to the occurrence, Claimant had warned his supervisor of the dangerous condition of the presence of the oil on three occasions, yet Respondent failed to remove the oil and ordered Claimant to continue working. Respondent did not deny notice of the dangerous condition nor did Respondent produce any evidence to contradict Claimant’s testimony.

Claimant has proved that Respondent failed to provide him with a safe environment in which to perform his assigned task. The breach of the Respondent’s duty to Claimant was the direct proximate cause of Claimant’s injury. Following the incident the doctors assessed Claimant’s injury as a contusion or bruise to the back area and ordered a lay-in for three days. The subsequent x-rays showed no evidence of fracture or dislocation.

Although Claimant produced evidence of subsequent visits to the doctor, Claimant failed to establish a causal connection between the incident of June 29, 1990, and subsequent treatment. Claimant also failed to establish that he had suffered any permanent injuries as a result of the occurrence of June 29,1990.

Therefore, in assessing damages, the Court should only consider the injury proven as a direct result of the occurrence.

As to the issue of whether Claimant was contributorily negligent, the Court has recognized that an inmate does not enjoy the same independence as a person outside the penitentiary. To refuse the orders of a supervisor may subject the inmate to disciplinary action. Davis v. State (1987), 39 Ill. Ct. Cl. 185.

In this case, Claimant testified that he had warned his supervisor of the dangerous condition of the oil on the boiler on three occasions prior to the resulting injury. It is not unreasonable that Claimant continued to perform his assigned work in spite of the dangerous condition where failure to do so would have resulted in disciplinaiy action.

The evidence supports an award for Claimants pain and suffering for back discomfort resulting from his fall for a period of three days. An award of $150 is entered in favor of Claimant.

II. Whether Claimant Is Entitled to Lay-in Pay

The Illinois Department of Corrections procedure manual states that inmates on “lay-in” are to be paid $2.50 per day. The manual further dictates that an “inmate receiving lay-in pay must not be under investigation or in segregation.”

Claimant contends that he is entitled to lay-in pay for the term of the injury resulting from the Claimant’s fall from a ladder on June 29, 1990.

Following Claimant’s fall from the ladder on June 29, 1990, Dr. Ulrich examined Claimant and ordered a three-day lay-in. Claimant did not complain of back pain again until July 30, 1990. A doctor’s examination of Claimant on July 31, 1990, revealed that Claimant had no restriction of movement and further lay-in was not ordered.

It is clear that if Claimant was entitled to lay-in pay it was only for the period of the actual lay-in, three days following the injury. Yet Claimant was, in fact, compensated for the entire month of July, 1990. Lay-in pay in the amount of $51.67 was posted to Claimant’s trust account as compensation for July, 1990.

The Illinois Department of Corrections procedure manual dictates that lay-in pay should be denied when an inmate is under investigation. In this case, Claimant was, in fact, under investigation for his conduct while assigned to the asbestos crew. The investigation into Claimant’s behavior and the decision to terminate Claimant were documented prior to Claimant’s injury on June 29, 1990. In this factual situation, it was clearly within the discretion of the industry superintendent to deny Claimant’s lay-in pay in its entirety.

Claimant was compensated for the entire month of July, 1990. There is no evidence to support the Claimant’s contention that he is entitled to additional lay-in pay.

Claimant’s request for award of lay-in pay is denied.


source: Caselaw Access Project

author: Frederick, J. Frederick, J.

license: Public Domain

text:
    (No. 91-CC-1525
    Rudolph Lucien, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 2, 1993.

      Order on petition for rehearing filed January 12, 1994.

    Rudolph Lucien, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christopher K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Rudolph Lucien, an inmate with the Illinois Department of Corrections, seeks damages against the Respondent, State of Illinois, in the amount of $558.81 alleged by Claimant to be the value of personal property lost by Claimant through alleged fault or neglect of the Respondent.

Claimants complaint alleges that on May 4, 1990, a large volume of personal property belonging to Claimant was confiscated by correctional officers. Claimant contends that although some of his property has been returned, a large amount of the property with an alleged value of $558.81 has not been returned.

The complaint filed December 5, 1990, alleges that the property in question was removed by correctional officers from his cell. The complaint further alleges that three months later Claimant was transferred from Pontiac to Menard where he has been continuously incarcerated in the segregation unit. At the time of the filing of the complaint, Claimant asserts that certain items of his personal property described in the complaint and listed in the bill of particulars were “lost or stolen” while in the possession of the Respondent.

A rather substantial number of documents were submitted by way of a departmental report. The departmental report indicates that Claimant filed grievances with the Administrative Review Board on August 13 and August 22, 1990, with regard to his claims of lost personal property stemming from his transfer to Menard Correctional Center from Pontiac Correctional Center on August 8, 1990. The Administrative Review Board, after a review of information from Pontiac Correctional Center and Menard Correctional Center, concluded that the Claimants property was appropriately transferred and arrived at Menard Correctional Center with several specific exceptions being: one scarf, two pair of winter gloves, one white gold cross with matching chain, food items, and 20 envelopes. It was noted that the Administrative Review Board was unable to verify the Claimant’s possession of the excepted items, and there was no verification of quantity with respect to the food items which were consumable.

Subsequently, in a letter from Howard A. Peters, the Warden of the Pontiac Correctional Center to Rick A. Dunbar, it appears with respect to the “silver tone cross on a chain” that there was no “Jewelry Retention Statement” on file at Pontiac for Claimant on either a silver chain with cross or a black cross. As to “tapes,” Warden Peters reports that only 22 cassette tapes were removed from the possession of Claimant on May 20, 1990, and the 22 tapes were returned to the Claimant on June 20, 1990, and were transferred to Menard on August 8, 1990.

At the hearing in this cause, Claimant elected to make narrative statements regarding his claim. Claimant made reference to the departmental report and offered exhibits which Claimant contended disputed the statements of Warden Peters in his letter to Rick A. Dunbar of January 11, 1991.

First, Claimant submitted Claimants Exhibit 1 consisting of three pages. The first page was a disciplinary report reflecting that the officer found what he believed to be unauthorized property which he removed from Claimant’s cell (#818) consisting of one black pullover sweatshirt, one black zip-up hooded sweatshirt, one black Nike nylon pants, one pair of black gloves, three black stocking caps, one black scarf, and one navy blue pillowcase which he, in turn, turned over to his shift commander. The second page of the exhibit was a memo offered by Claimant to the adjustment committee. The third page was the adjustment committee’s summary dated May 9, 1990, reflecting that the institutional adjustment committee read the disciplinary report and Claimant’s written statement. The adjustment committee’s summary reflects that the Claimant had no receipt for the unauthorized clothing found in his cell, and that Claimant requested that the institution provide him with receipts. The summary disposition reflects that the institutional adjustment committee found that Claimant had unauthorized property in his cell and that the matter was placed under investigation by Internal Affairs. Exhibit 1 in three pages was admitted into evidence as Claimants attempt to demonstrate that property, a portion of which was included in the complaint at bar, was in fact, taken from his person by Respondents agents on May 4, 1990. Claimant contended on the same date (May 4, 1990), an additional item that was seized from his cell (Cell #818) was the silver-tone chain mentioned in Warden Peters’ letter of January 11,1991.

Claimant contended that Warden Peters’ letter of January 11, 1991, misstated the facts in relation to the requirement that “Jewelry Retention Statements” were required for jewelry owned by inmates at the Pontiac Correctional facility. Claimant makes reference in his own written statement to the Pontiac disciplinary report as evidence that he did not make the “craft” items which Warden Peters speculated may have been made by him but, in fact, he had obtained those items from “Leisure Time Services” at the Pontiac Correctional Center.

Claimant testified that contrary to the “disciplinary report” of May 4, 1990, there were five stocking caps removed from Claimant’s possession instead of three, and that only two were returned.

Again, referring to the letter of Warden Peters dated January 11, 1991, the Claimant’s testimony reveals that the Claimant’s theory of liability is predicated, at least in part, on the fact that on April 9, 1990, inventory showed certain clothing items (e.g. one pair of gloves) that were not also revealed as being present on the May 20, 1990, inventory. This fact, combined with Claimant’s Exhibit 1 (the disciplinary report of May 4, 1990), revealing that one pair of black gloves were removed from Claimant’s possession by a correctional officer and “turned over to the Shift Com” helps to establish the State’s liability in this case. Again, pointing to the May 4, 1990 disciplinary report, Claimant disputes the content of the report and states that on May 4, 1990, “all” of his personal property was seized from cell 818 which included items not listed as being removed from the possession of the Claimant on the disciplinary report (Plaintiffs Exhibit 1) including “nylon underwear.”

On April 9, 1990, the Claimant was placed in disciplinary segregation at Pontiac Correctional Center. An inmates access to, or right to, possession of personal property while he is placed in disciplinary segregation is severely limited by the Illinois Department of Corrections. On the date that Claimant was placed in disciplinary segregation at Pontiac Correctional Center, the personal property that he was not entitled to possess while in disciplinary segregation was confiscated. The departmental report, accompanied by the letter of Robert J. Senger to the Honorable Roland W. Burris dated January 22, 1991, contains a “Resident Personal Property Inventory Record” dated 4/9/90 prepared at Pontiac Correctional Center which purports to be a list of the Claimants resident personal property on the date and time of his placement into disciplinary segregation. In comparing Claimants “bill of particulars” attached to his complaint to the “resident personal property inventory record” prepared at Pontiac Correctional Center on April 9, 1990, the following is noted:

(1) One silver tone cross on chain is listed in this inventory; Claimants complaint seeks damages of $300 for one white gold cross with matching chain.

(2) The 4/9/90 inventory lists 6 undershorts-briefs and 21 undershorts-boxers. Claimant seeks reimbursement of $64 for eight “nylon underwear.”

(3) The inventory lists four sweatshirts and four sweatsuits; Claimant seeks damages of $70 for two zip-up, hooded sweatshirts and two Nike nylon sweatpants.

(4) The 4/9/90 inventory lists 25 audio cassettes; Claimant seeks $30 in damage for the loss of five cassette tapes.

(5) The 4/9/90 inventory lists one pair gloves; Claimant seeks damages of $9 for one pair black gloves.

(6) The 4/9/90 inventory lists no hats or scarves; Claimant seeks $18 in damage for the loss of three black religious caps and one black religious scarf all made of yam.

(7) The 4/9/90 inventory lists three thermal underwear; Claimant seeks $15 in damage for the loss of two sets of thermal underwear.

(8) The 4/9/90 inventory lists various audio equipment (see third page) but lists no ear plug sets; Claimant seeks damages of $2 for one ear plug set.

(9) The 4/9/90 inventory lists no consumables or food items; Claimant seeks approximately $20 for 10 listed food items on his Bill of Particulars.

(10) The 4/9/90 inventory lists six pillowcases; Claimant seeks indefinite damages for his loss of one navy blue printed pillowcase.

There is no evidence as to which of the items listed in the April 9, 1990 inventory were permitted to remain in the Claimant’s possession while in disciplinary segregation status at Pontiac Correctional Center; from the record as a whole, it is reasonable to assume that some, but not all, of Claimant’s personal property was permitted to be in his possession while in disciplinary segregation status at Pontiac Correctional Center.

Claimant’s Exhibit 1 (disciplinary report of May 4, 1990) reveals that certain items were removed from Claimant’s possession as being “unauthorized” at Pontiac Correctional Center. These items consist of the following:

one black pullover sweatshirt

one black zip-up hooded sweatshirt

one black Nike nylon pants

one pair of black gloves

three black stocking caps

one black scarf

one navy blue pillowcase

Of the above-listed items, only the three black stocking caps and the one black scarf can be said to be not listed on the April 9, 1990 inventory. As to the remainder of the items removed from Claimants possession on May 4, 1990, they might very well have been listed on the April 9, 1990 inventoiy, but with slightly different descriptive adjectives.

Claimants transfer in disciplinary segregation status to Menard Correctional Center occurred on August 8, 1990. Again, “Resident Personal Property Inventory Records” were prepared at Pontiac Correctional Center (dated August 8, 1990) with subsequent follow-up inventories of personal property being prepared at Pontiac on October 11, 1990, both of which appear as part of the departmental report in this case. Comparing the resident personal property inventories of August 8, 1990 and October 11, 1990 with the personal property inventory of April 9, 1990 and the list of property removed from Claimants possession on May 4, 1990, certain difficulties arise. For example, as to the property described and itemized in Claimants bill of particulars, it is noted as follows:

1. The 8/8/90 inventory lists a black cross but not a white gold cross with matching chain.

2. The 8/8/90 inventory lists five undershorts-briefs and four undershorts-boxer, but does not describe “nylon underwear.”

3. The 8/8/90 inventory lists two sweatshirts and again four pairs of sweatshirts but does not describe “zip-up hooded sweatshirts” or “Nike nylon sweatpants.”

4. The 8/8/90 inventory lists 22 cassette tapes as opposed to the listing of 25 audio cassette tapes in the 4/9/90 inventory.

5. Due to unclear markings on the 8/8/90 listing, it is uncertain as to whether one pair of gloves is listed or not.

6. The 8/8/90 inventory lists two caps and possibly one hat as compared to no caps or hats listed on the April 9,1990, inventory.

Again, as at the Pontiac Correctional Center, there is no evidence to establish what personal property of the Claimant, out of the . various “transfer” inventories, was allowed to be placed in Claimants possession while in his disciplinary segregation status while at Menard Correctional Center. Again, it is reasonable to assume that some, but not all, of Claimants property has been allowed to be in his possession while in disciplinary segregation status. Claimant has not received, and will not receive, unrestricted access to his personal property until he is discharged from disciplinary segregation status. Claimant contends that since there are anomalies between the inventory of April 9, 1990 and the list of unauthorized property removed from his possession on May 4, 1990 at Pontiac Correctional Center as compared to the various “transfer” inventories prepared at the time of and subsequent to his transfer to Menard Correctional Center, then he should be entitled to claim damages for the loss of these items to the extent that it can be argued that certain items do not appear on the transfer inventories which Claimant contends were shown to be in his possession, or among his items of personal property on April 9,1990.

It is submitted that Claimants entire case must be predicated on the assumption that identical, or at least recognizable descriptive adjectives as to miscellaneous items of personal property prepared and written by different correctional officers at different times must exist in the record keeping of the Department of Corrections in order to avoid or defeat the claims of inmates to the loss or destruction of their various miscellaneous items of personal property. For example, Claimant seeks judgment for $300 against Respondent for the loss of “1 silver tone cross on chain” listed in the inventory of 4/9/90. The inventory of 8/8/90 lists “1 black cross.” At the hearing, Claimant produced a plastic black cross which Claimant contended could not be the “1 white gold cross with matching chain” for which Claimant seeks damages. Claimant contends that the descriptive adjectives used by the correctional officer preparing the April 9, 1990 inventory (1 silver-tone cross on chain) could not be confused with the black plastic cross demonstrated to the Commissioner at the hearing or the cross described by the correctional officer on August 8, 1990, as “one black cross.” Thus, Claimant argues that he should be awarded damages even in the face of the departmental report containing Warden Peters’ letter of January 11, 1991, to Rick A. Dunbar which explains in detail that at Pontiac Correctional Center, jewelry is not confiscated when inmates are assigned to segregation units, and further that Pontiac Correctional Center required “Jewelry Retention Statements” for “all jewelry owned by inmates at this facility.” Claimant did not tender and Warden Peters explained that Claimant did not have any “Jewelry Retention Statement” for the claimed lost property.

As to the various garments Claimant contends have been lost for which Claimant seeks monetary damages, it is impossible to corroborate Claimants claims by virtue of the personal property inventory records submitted due to the probability, and indeed, likelihood, that two separate correctional officers at different times would describe miscellaneous clothing articles using adjectives which could distinguish between phrases such as “black and white pullover sweatshirt” from “2 sweatshirts” or “4-pr. sweatshirts.” (See transfer inventory of August 8, 1990.) Further, Claimant seeks to recover damages for black religious caps and scarves made of yam. Yet, the transfer inventory of August 8, 1990 reflects “2 caps” and “2-pair homemade knits.” The officer at Pontiac Correctional Center removing unauthorized property from Claimants possession on May 4, 1990 described property removed from Claimants possession including “3 black stocking caps” and “1 black scarf.” Claimant wore a black stocking cap to the hearing. There is no evidence in this record to support Claimants contentions regarding the consumable items listed on his bill of particulars.

Finally, with respect to the navy blue pillowcase, it should be noted that the transfer inventory of August 8, 1990 lists “2 pillowcases.” It is impossible to determine that Claimant has been deprived of the navy blue printed pillowcases, or any pillowcase at all.

A complete review of the departmental report and the Claimant’s testimony at the hearing reveals that Claimant’s case is predicated almost entirely on the assumption that the use of descriptive adjectives by different correctional officers at different times in respect to widely varied miscellaneous personal property, must always be of sufficient similarity or context to enable persons upon third party review to determine the exact identity of such items of personal property. No evidence was adduced by Claimant from which this Court can conclude, that it is either possible, practical, or feasible to require this standard of accuracy from employees of the Illinois Department of Corrections in preparing resident personal property inventory records.

Indeed, in the final analysis, Claimant has failed to corroborate by any convincing evidence whatsoever, that the items for which he seeks monetary damages are not indeed, in storage awaiting his release from disciplinary segregation status; indeed, there is some indication in the record from an analysis of the various personal property inventory records, that such items are, in fact, in storage awaiting Claimants change of status. The items were not subpoenaed to the hearing by Claimant for comparison.

In a bailment case, a claimant must prove by a preponderance of the evidence that specific property of claimant has come into the exclusive possession of the State and has not been returned before a presumption of negligence is established that Respondent must rebut. (Doubling v. State (1976), 32 Ill. Ct. Cl. 1; Crossland v. State (1988), 41 Ill. Ct. Cl. 180.) In this case, that evidence is lacking as the Claimant has failed to meet his burden of proof.

For the foregoing reasons, it is ordered that this claim be and hereby is denied.

ORDER

Frederick, J.

This cause coming on Claimants motion for reconsideration of opinion filed December 2, 1993, and the Court having reviewed the entire case, and the Court being fully advised in the premises, wherefore, it is ordered that the motion for reconsideration is denied.


author: Frederick, J.

text:
    (No. 91-CC-1557
    Malcolm Jennings, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 26, 1994.

    Malcolm Jennings, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christopher K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Malcolm Jennings, an inmate with the Illinois Department of Corrections, seeks judgment against the State of Illinois in the sum of $85 based on allegations that Claimant was deprived of a pair of basketball shoes while they were entrusted to the exclusive care of Respondent. Claimant contends that on December 2, 1989, he was removed from Menard Correctional Center on a medical writ to Chester Memorial Hospital. Upon arriving at the hospital, Claimant was instructed by escorting officers to remove his clothing which was placed in the exclusive possession of the officers. After Claimant was released from Chester Memorial Hospital and returned to Menard Correctional Center a day later, Claimant requested that his clothing be brought to him. Claimant’s complaint alleges that his clothing could not be found.

Upon hearing, Claimant testified that when he was taken to the hospital on December 22, 1989, he was wearing a pair of Nike solo flight basketball shoes, and upon arriving at the hospital, he was asked to remove the clothing so that it could be taken back to the correctional center.

Claimant filed a grievance for the loss of his basketball shoes at the institutional level, but was unable to obtain redress. On February 26, 1990, Claimant sent a grievance to the Administrative Review Board that he had “waited too long to file a grievance.”

Claimant contends that the shoes had been brand new in the month before their loss and that he had only worn them three times, namely twice on a visit and once to the hospital. Claimant contends that a pair of shoes of the kind in question would have lasted a year.

Claimant stated that he bought the shoes from the Chemins Shoe Store in Chicago.

Claimant denied any understanding of the time limitations on review to the Administrative Review Board under míe 504-F.

The departmental report was submitted in this case which contained correspondence from the claims coordinator for the Illinois Department of Corrections addressed to the Attorney General dated December 19, 1990, purporting to reflect that Claimant had violated Departmental Rule 504-F in that his grievance had not been submitted in a timely manner. Rule 790.140 of this Court provides that all records and files maintained in the regular course of business by any department, commission, board, agency or authority of the State of Illinois, and all departmental reports made by any officer thereof relating to any matter or case pending before the Court, shall be prima facie evidence of the facts set forth therein; provided, a copy thereof shall have been first duly mailed or delivered by the Attorney General or the legal counsel of the appropriate state agency to the Claimant, or his attorney of record, and five copies filed with the clerk. The departmental report was received by the Commissioner one week before the hearing, having been submitted from the office of the clerk of the Court with correspondence dated eight days before the hearing.

Respondent offered no evidence. Neither party filed a brief.

In Terry v. State (1988), 41 Ill. Ct. Cl. 164, this Court denied the claim of a claimant because that claimant had not sought relief from the Administrative Review Board. In the Terry case, the claimant contended that he wrote the Administrative Review Board in Springfield and contended that he had not heard from the Board. As in the case at bar, claimant produced no copy of any correspondence with the Administrative Review Board and admitted that he had not had a hearing before the Administrative Review Board. In Terry, supra, this Court concluded that the claimant had not exhausted his administrative remedies in accordance with section 790.60 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) and denied the claim.

There is unrebutted prima facie evidence in the record in this case that Claimant did not appropriately seek to exhaust his administrative remedies in accordance with the rules governing grievances before the Administrative Review Board. A failure to exhaust administrative remedies because of a failure to follow the required procedures is no different than making no attempt to exhaust administrative remedies at all. Claimant has sought a final adjudication of his claim without exhausting his administrative remedies.

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


author: Patchett, J.

text:
    (No. 91-CC-2797
    John Butler, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 21, 1994.

    John Butler, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christopher K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim arises from a disturbance in the Department of Corrections. The Claimant, while an inmate with the Illinois Department of Corrections, was attacked by other inmates on January 19, 1991, in the gym shower room at Menard Correctional Center. He was cut by a steel shank over his right eye, and a small scar was created by the attack.

The Claimant testified that he had problems with another inmate. He told a correctional officer about the incident and was placed on temporaiy deadlock. After he was released from deadlock, he was attacked by another inmate during the next gym period.

The Claimant testified that there was no officer in the shower room and that officers normally do not go into the shower room while inmates are taking showers. He did report the injuiy in question to correctional officers and filed a grievance.

The Claimant suggests that liability arises because the officer should have seen the possibility of disturbance and protected him. He testified that it was the responsibility of the correctional officer to provide an environment where an attack could not happen. On cross-examination, he admitted that after he advised correctional officers of his concerns, he was put in lockdown, or temporaiy protective custody, for three days.

The Claimant also admitted on cross-examination that he was never directly threatened with bodily harm by the inmate who ultimately attacked him before the actual attack. He also did not give to the guards the names of inmates he suspected were going to attack him. He never sued the inmate who attacked him, but as mentioned earlier, he did file a grievance report.

On cross-examination, the Claimant further admitted that when filing an inmate injuiy report dated Januaiy 19, 1991, he stated that he was struck over the right eye by another players elbow during a basketball game. He admitted that the inmate injury report was incorrect and stated that he lied because he fears for his safety. The Claimant had no complaints about the medical care received, and he has no other complications from the injuiy other than the slight scar.

The leading case in the Court of Claims on inmate attack cases is Dorsey v. State (1977), 32 Ill. Ct. Cl. 449. There the court held that the State was not negligent, “« # # because the record is devoid of anything that would have put the State on notice that the attack, which did occur, might have occurred.” Dorsey at 451. The State is not an insurer of the safety of persons under its control. Dorsey at 453. The Dorsey case was cited with approval in the recent case of Bock v. State (1991), 43 Ill. Ct. Cl. 299, 305. There the court reaffirmed that unless the State could reasonably foresee an assault, there could be no liability.

The Claimant testified that he warned the officers of a possible attack and was placed on protective status for three days. He also acknowledged that he did not specifically identify the persons who he considered a threat to him. The Respondent’s agents obviously took steps to protect the Claimant from immediate harm after the report of the potential attack. It is difficult to imagine how the officers could do more based on the information they had in their possession. Clearly, they were not negligent. Therefore, this claim is denied.


author: Sommer, C.J.

text:
    (No. 91-CC-2932
    Ronald Seats, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 6, 1994.

    Ronald Seats, pro se, for Claimant.
    Roland W. Burris, Attorney General (Wendall Hayes and Verne Denting, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This is a prisoners claim for lost property. The parties agree that the property was lost while in the exclusive possession of the State. When the Claimant was transferred from one institution to another, an inventoried box of his property was missing and never found. The State admits liability under the doctrine of Doubling v. State (1976), 32 Ill. Ct. Cl. 1.

The only dispute is over the value of the property that was lost. Items lost included a color television set, court transcripts, pencils (15), law books (3), eyeglasses, books (6), playing cards (2), briefcases (2), a magazine, cigarettes (23 packs), photographs of family (8), frames (2).

The States position is that the loss is the value at the time of loss, not the replacement cost. The State argues that the value of the present lost items was minimal. For example, the State contends that the television, which was two years old, was worth nothing due to depreciation. The State also assigned a flea market value to the books and assigned minimal or no value to the other items.

This Court has ruled in Hamilton v. State (1992), 45 Ill. Ct. Cl. 324, that a prisoners situation is somewhat different than a civilian. When a prisoner loses an item, he must generally go to the commissary to purchase a replacement at the commissary’s prices, and due to a prisoner’s generally impoverished condition he often has to do without the lost item if not reimbursed adequately. An excessive assignment of depreciation effectively deprives the prisoner of his property. If the prisoner had a working television set when he was transferred, he should be entitled to a working television set when he arrives. If it does not work or is missing, he has nothing. Hamilton, supra.

Due to the prisoners situation, his testimony as to the commissary cost or original cost is good practical evidence of the value of an item, though certainly some depreciation may be allowed when warranted. Hamilton, supra. The values as established by the prisoners own testimony are not speculative, but are to be weighed by the Commissioner in conjunction with all the evidence before him including the credibility and demeanor of the parties.

The Commissioner found at the hearing that the value of the lost items were $505.45. We will adopt the Commissioners finding.

It is therefore ordered that the Claimant be paid $505.45 in full and complete satisfaction of this claim.


text:
    (No. 92-CC-0323
    Diane Welsh, Claimant, v. The State of Illinois, Respondent.

      Order filed June 25, 1993.

      Order filed June 29, 1994.

    Schaffner, Ravinowitz, & Feinartz, P.C., for Claimant.

      Roland W. Burris, Attorney General (Barrington D. Baker, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Frederick, J.

This cause coming on to be heard on the motion of Respondent to dismiss the claims herein, due notice having been given the parties hereto, and the Court being fully advised in the premises:

The Court finds that the claim herein seeks damages for personal injuries allegedly sustained by Claimant during an incident which occurred while she was visiting a patient at Madden Mental Health Center in Hines, Illinois. Based upon this incident, the Claimant alleges serious personal injuries. According to the Claimants complaint, it was the negligence of the Department of Mental Health & Developmental Disabilities which caused the plaintiff these alleged injuries. We note that section 25 of the Court of Claims Act (Ill. Rev. Stat. (1989), ch. 37, par. 439.24 — 5) and section 790.60 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) require that any person who files a claim before the Court of Claims shall exhaust all other remedies and sources of recovery whether administrative, legal or equitable.

The leading case regarding the Court of Claims exhaustion of remedies requirement is Doe v. State (1991), 43 Ill. Ct. Cl. 172, which is dispositive of the case at bar. In Doe, claimant, a patient at John J. Madden Health Center, brought suit against the State after she had been sexually assaulted by another Madden patient. The claimant sued the State but did not file an action against her assailant. Accordingly, respondent moved to dismiss for failure to exhaust remedies pursuant to section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations. This court, in Doe, followed the reasoning set forth in Boe v. State (1984), 37 Ill. Ct. Cl. 72, 75, where we held that claimants “must exhaust all possible causes of action before seeking final disposition of a case filed in the Court of Claims.” (Emphasis in original.) The language of section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations clearly makes the exhaustion of remedies mandatory rather than optional. To quote our prior watershed exhaustion of remedies case (Lyons v. State (1981), 34 Ill. Ct. Cl. 268), we stated:

“The requirement that claimant exhaust all available remedies prior to seeking a determination in this Court is clear and definite in its terms. It is apparent to the Court that claimant had sufficient time to both become aware of his other remedies and to pursue them accordingly. The fact that claimant can no longer pursue those remedies cannot be a defense to the exhaustion requirement. If the Court were to waive the exhaustion of remedies requirement merely because claimant waited until it was too late to avail himself of the other remedies, the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants. We believe that the language of Section 25 of the Court of Claims Act [citation omitted] and Rule 6 of the Rules of the Court of Claims quite clearly makes the exhaustion of remedies mandatory rather than optional.”

These principles were most recentiy used in our dismissal of the case of an inmate who had allegedly been attacked by his cellmate. We held that claimant failed to exhaust his remedies by not pursuing a civil action for damages against a known tortfeasor. (Lutz v. State (1989), 42 Ill. Ct. Cl. 124.) The appropriate procedure would be to sue the known tortfeasor in state court, file against the State of Illinois in the Court of Claims, and have the Court of Claims case placed on general continuance.

We find that as in Doe and Lutz, the instant Claimant had an affirmative duty to exhaust all remedies available against a known tortfeasor before seeking final damages in the Court of Claims. Thus the Claimant has failed to comply with section 25 of the Court of Claims Act, supra, and section 790.60 of the Court of Claims Regulations. Section 790.90 of the Court of Claims Regulations provides that failure to comply with the provisions of section 790.60 shall be grounds for dismissal.

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

ORDER

Frederick, J.

This cause coming on for hearing on Claimants motion to vacate order of dismissal entered June 25, 1993, and the Court having reviewed the file, heard oral arguments, and the Court being fully advised in the premises,

Wherefore, it is ordered that the motion to vacate the order of dismissal entered June 25, 1993, is denied.


text:
    (No. 92-CC-0447
    Johnny C. Ross, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 25, 1994.

    Johnny C. Ross, pro se, for Claimant.

      Roland W. Burris, Attorney General (Wendell Derek Hayes, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

The Claimant, Johnny Ross, who is an inmate, seeks damages for personal injury from the State of Illinois. At the hearing on April 30, 1993, the State admitted that it was liable “for some amount.”

The Claimant seeks damages in excess of $100,000 as compensation for injuries which occurred on August 7, 1991. At the time of his injury he was employed at the Danville Correctional Center as head cook on the night shift. It was his duty to prepare an evening meal to feed officers and late night crews. The Respondents supervisor ordered the Claimant and another inmate to empty hot cooking oil from a recently-used deep fat fryer into a grease vat that was in back of the dining hall. The Claimant feared that the procedure would be dangerous, and advised both the Respondents supervisor and the other inmate that this was dangerous and not necessary. As a prisoner, the Claimant had no choice but to obey orders. In performing the task, the Claimant sustained burns to his left hand through no fault of his own.

The State through its supervisor was made aware that the task required of the Claimant would be dangerous, and, yet, continued to order the work done. Therefore, the State breached its duty to provide safe working procedures. (Lee v. State (1992), 44 Ill. Ct. Cl. 246.) The State is, thus, liable for the Claimants injuries.

An examination of the Claimants left hand by the Commissioner revealed that the skin color between the ring finger and the little finger on his left hand was splotchy. There were several small discolored areas on the outside of the top of his left hand, the largest of which appeared to be approximately a quarter of an inch to a half an inch in length and three-sixteenths of an inch in width. There were four or five other veiy small areas of discoloration on the lateral aspect to the back of the left hand. Neither the fingers or the hand appeared to be distorted or scarred in such a way as to change the configuration of the fingers.

The Claimant contended that the injury continued to cause him functional problems with the hand. He testified that he suffers from “slight arthritis occasionally” in his hand. The Claimant also stated that he had been treated for arthritis, and had, at one time, been given a ball to squeeze. He testified that occasionally his hand is a little numb or tingling “basically when the weather gets kind of really bad.” At the time of the hearing, his assignment was as a porter who mops and sweeps the floors and empties wastebaskets, which required the repetitive use of his hands. He testified that this work sometimes causes him problems, and when he types the fingers are numb.

The Claimant was treated for his injury from August 8, 1991, through September 16, 1991. At the hearing, he contended that his hand “jingles” and contended that it was hard for him to hold the hand straight, although that condition was not observable by the Commissioner at the hearing. At the hearing, the Claimant complained that there was a difference between his left hand and his right hand which could not be observed by the Commissioner.

The Claimant testified that at the time of the hearing he was experiencing “little neurological feelings” described as “occasional jitters” which could not be observed by the Commissioner at the hearing. He also testified that he had complained that his left hand fell asleep. The Claimant testified that doctors prescribed Naprosyn for the hand, but that had since been discontinued. The Claimant fears that he will not be returned to society as a cook or later promoted to a chef because his left hand falls asleep occasionally and his hands would go numb while “working basically with icing sculptures.”

Upon cross examination, it was determined that the Claimant could flex his hand, make a fist and move his wrist up and down and from left to right. He could move one finger at a time and hold on to a ball. He was a right-handed person,

At the conclusion of the hearing, the Claimant commented that it was not his position that he could no longer fully use his left hand. Yet, the Claimant contends that he has sustained a light case of arthritis and fatigue.

The Claimant incurred no medical expense. Other than discoloration of his left hand, there is no evidence of any permanent injury or disability other than the Claimant’s own description of the problems he has with the hand.

Although the admission by the assistant Attorney General at the hearing that the State agreed that it was liable for some amount was an unusual action, the Claimant’s testimony as to the facts and circumstances of the accident strongly support a finding of liability without regard to the State’s admission.

We find that the Claimant is entitled to an award for pain and suffering, discoloration of his hand, and a very slight disability of his left hand, all of which we will value at $3,500. We find the Claimants contention that he would not be able to work as a chef because he could not do food decorating to be speculative, therefore we will make no award for future loss of income. It is therefore ordered that the Claimant is awarded $3,500 in full and complete satisfaction of this claim.


author: JANN, J.

text:
    (No. 92-CC-1122
    Consolidated Steel & Supply Co., Claimant, v. The State of Illinois, Respondent.

      Order filed December 18, 1992.

    Consolidated Steel & Supply Co., pro se, for Claimant.
    Roland W. Burris, Attorney General (Cynthia Wood, Assistant Attorney General, of counsel), for Respondent.
   ORDER

JANN, J.

Claimant Consolidated Steel & Supply Company filed this claim seeking payment in the amount of $4,415.70 for steel plates sold to the Respondents Department of Transportation (IDOT). In its standard lapsed appropriation form complaint, Claimant alleged that it made demand for payment to IDOT but the demand was refused on the grounds that the funds appropriated for such payments had lapsed. The Respondent filed a stipulation agreeing to the Court entering an award in the full amount claimed. The case is now before the Court for approval of the stipulation.

The Court of Claims is not bound by such stipulations and it cannot approve the one at bar for the following reason.

The Respondents stipulation was based on a report compiled by IDOT which report was offered as prima facie evidence of the facts contained therein pursuant to section 790.140 of the Court of Claims Regulations (74 Ill. Adm. Code 790.140.) The report indicates that the reason this claim was not paid previously was not because of the lapsing of the appropriation as claimant alleged but because of a violation of the bidding and contract requirements in the Illinois Purchasing Act. (Ill. Rev. Stat. (1991), ch. 127, par. 132.1 et seq.) Several purchases were made which, when strung together, exceeded the no-bid purchase limits. Pursuant to §10 of the State Purchasing Act, the transaction is void. Therefore we are constrained by operation of law to deny the claim.

However, for the purpose of possible consideration of this matter by the General Assembly and in fulfillment of our duties as an advisory body to the General Assembly we will make additional findings.

The IDOT report explains that during the winter and spring of 1991 IDOT had a shortage of steel, plates such as those which are the subject of this claim. Workers on the Stevenson Expressway had to borrow steel plates to cover holes appearing on bridge decks. Lanes of Interstate 290 had to be closed during rush hour because full-depth hot patch would not cool and stabilize and no plates were available to “bridge” the patches overnight. In order to rectify the situation and have plates available for future needs, a series of purchases were made.

The purchases were apparently made in good faith; the violation of the Illinois Purchase Act appears to have been inadvertent. The report adds that those responsible for the purchases have been chastised. The steel plates have presumably been used and are not a commodity that can be returned, i.e. the transaction cannot be “undone.” The Claimant has suffered a loss. The IDOT report is in agreement with Claimant that the amount of the loss is $4,415.70.

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


text:
    (No. 92-CC-1262
    The Village of Lansing, Third-Party Claimant, v. The State of Illinois and The Illinois Department of Transportation, Respondents.

      Opinion filed April 11, 1994.

    Angel, Clink, Diamond, Cope & Bush, P.C. (Thomas A. DiCianni, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondents.
   OPINION

Sommer, C.J.

This claim involves a third-party claim for contribution brought by the Village of Lansing, hereinafter the Village, against the State as a result of an underlying personal injury complaint which is pending against the Village and other defendants in Cook County Circuit Court. (No. 90 L 2235.) None of the other defendants has sought contribution from the State. In the underlying civil litigation, the plaintiff has alleged that her injuries resulted from an automobile accident caused by a break in the Villages water main and subsequent ice buildup on the highway:

“At the time and place aforesaid an open water main operated, managed, maintained and controlled by defendant, VILLAGE OF LANSING, caused an accumulation of ice on Interstate Route 80 in the area of the Burnham Avenue overpass.” Complaint, Count II, Paragraph 10.

Among the numerous allegations of negligence against the Village, the plaintiff has claimed that the Village failed to clear the ice from the roadway and failed to warn both motorists and the State of the ice. (Complaint, Count II, Paragraph 11 (e)-(g).) In the contribution claim, the Village has admitted that its water main break was the sole source of the ice, but then the Village has in turn claimed that the Department of Transportation negligently failed to address the ice buildup. The State has moved to dismiss the contribution claim based on section 9 — 113(g) of the Illinois Highway Code:

“It shall be the sole responsibility of the entity [operating a pipeline across any highway], without expense to the State highway authority, to maintain and repair its * ° ° pipe line 000 and in no case shall the State highway authority thereafter be liable or responsible to the entity for any damages or liability of any kind whatsoever incurred by the entity “ “ 605 ILCS 5/9 — 113(g).

In its objection and response to the motion, the Village has claimed that the aforementioned statute only applies to liability for damage done to the Villages pipeline and related equipment, that the State has an independent duty to the plaintiff to address the ice build-up, and that that duty supports a contribution claim.

The express language contained in this subsection of the statute states, “in no case shall the State highway authority * * * be liable or responsible to the [Village] for any damages or liability of any kind whatsoever incurred by the [Village] 6 # (Emphasis added.) The statute clearly encompasses more than liability for simple damages to the Villages pipeline and related equipment. The statute attaches to any and every form of liability and damages. Thus, the Villages contribution action is barred, for contribution would be for liability incurred by the Village.

A reading of other portions of section 9 — 113 of the Highway Code supports this result, for the statute has been carefully drawn to shift the burden of all sorts of expenses away from the State and onto the particular utility or other entity. In subsection (e), for instance, the entity is obligated to reimburse the State for all engineering fees, legal fees, and other expenses which the State incurs. Similarly, subsection (f) allows the State to remove, relocate, or modify the entity’s equipment at the entity’s expense. Accordingly, reading the provisions of section 9 — 113 as a whole, it is apparent that the drafters intended that the entity alone, and not the State, is to bear any and all liability or other expense which results from its equipment.

Finally, there is case law which supports this reading of the statute. Although not directly on point, the Appellate Court decision in Reith v. General Telephone Co. (1974), 22 Ill. App. 3d 337, 317 N.E.2d 369, makes it clear that, as a licensee from the State to use the right-of-way, the entity has assumed the exclusive duty to keep the public right-of-way safe for passers-by:

“The [entity] had an affirmative, non-delegable duty to take precautions against 000 possible and probable injuries around [equipment] constructed through its franchise or permission obtained from the state ” ° [It is] the duty of a licensee to keep [its equipment] along a public right-of-way safe for passers-by ° ° °. The duty or responsibility to keep the public ways safe was nondelegable * ° °. The plaintiff who was injured while using the public way should therefore look to the [entity] held responsible for the [equipment] 0 0 22 Ill. App. 3d 340-43, 317 N.E.2d 373-74.

It is therefore ordered that the Respondents motion to dismiss is granted, and the Claimants third party complaint for contribution is hereby dismissed.


text:
    (No. 92-CC-2109
    Mary Louise Fuller, Claimant, v. Southern Illinois University and The Board of Trustees of Southern Illinois University, Respondents.

      Order filed January 6, 1994.

    McCann & Foley (Bruce W. Booker, of counsel), for Claimant.
    Shari Rhode, for Respondents.
   ORDER

Sommer, C.J.

This cause coming to be heard on the Respondents renewed motion to dismiss, due notice having been given, and this Court being fully informed finds:

(1) That a claim for damages for personal injury arising from the same accident was filed both in the Court of Claims and the Industrial Commission by the Claimant.

(2) That on March 26, 1993, an Industrial Commission arbitrator held that the Claimants injuries arose out of and in the course of the Claimants State employment, and an award was made.

(3) That no petition for review was filed, and the time for filing such has now passed.

(4) That the Workers’ Compensation Act, where it applies, is an exclusive remedy to recover damages for personal injury from an employer. 820 ILCS 305/5(a).

(5) That since the Claimant’s injuries have been finally determined by the Industrial Commission without objection to arise out of an accident which occurred in the course of her State employment, a negligence action for these same injuries against the State is barred. Wills v. State (1982), 35 Ill. Ct. Cl. 381.

It is therefore ordered that the Respondent’s motion to dismiss is granted and this claim is dismissed.


text:
    (No. 93-CC-0849
    Oral F. Gower, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 12, 1994.

    Oral F. Gower, pro se, for Claimant.
    Roland W. Burris, Attorney General (Lawrence C. Rippe, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Oral F. Gower, seeks judgment against Respondent, State of Illinois, in the sum of $1,100 for damages done to Claimants Ford F-150 pickup truck when a limb fell from a tree and struck his truck at Ft. Massac State Park on October 4, 1992. Claimants complaint alleges that the limb from the tree fell on his pickup tmck “purely and totally” as a result of negligence on the part of Respondent. Claimant contends that many trees in the park had been chosen to be cut for many months and had been marked with red paint on the trunks. Claimant alleged that dead limbs had been falling from the trees without wind blowing or any other such circumstances. Claimants complaint is informal and raises many issues regarding allegations of improper care or maintenance at Illinois State parks experienced by Claimant.

At the hearing, Claimant testified that on the date in question, he and his wife pulled into the park, camped and that it was almost dark. There was no wind. Claimant testified that the next thing Claimant knew was that he “heard a boom” and a big tree limb fell down and hit the hood of his truck bending it and bending the cab and the “knickknack” on the side of the door and on the windshield visor. A dent was left in the hood.

Claimant described the facility as a government campground operated by Respondent, State of Illinois. People are invited to bring their vehicles and trailers to the campground and make use of it and a fee is charged. Claimant and his wife had paid the fee.

Claimant testified that a State employee, being the hostess of the campground, was present when the accident happened. Claimant testified that the tree in question had been “bad for a long time.” After the accident happened, State employees cut the tree down.

Claimant testified that he was aware of the condition of the trees generally at the campground before the incident happened. Claimant stated that there were limbs falling down out of the trees all the time. Claimant testified that prior to the incident in question, oak limbs on the back side of the campground were falling all the time. Claimant indicated he was aware of that fact before the incident and never camped on that side. Claimant stated that he became aware of the condition on the other side because he walked around the campground all the time.

Prior to the accident, Claimant had not noticed this particular tree which caused the damage to his truck.

After the limb fell, he observed the limb and the tree it fell from. Claimant stated that the limb that hit his truck was about five inches in diameter and about five feet long. After the incident, Claimant observed the condition of the tree as being bad and that the tree had dead limbs on it.

Claimant’s truck was parked in an area that was reserved for parking vehicles that are attached to trailers and that use the facility.

Claimant’s position is that because the trees were obviously holding dead limbs that might cause damage as they fell, that the Respondent was negligent in the maintenance of those trees and in the maintenance of the camping facility because they were allowed to create a hazardous condition in their uncorrected state. Claimant reiterated that on the day of this occurrence, the sun was shining, it was warm, and there was no wind. The limb apparently broke off of the tree because of its own weight and there was nothing to cause the limb to break.

Claimant did not have his truck repaired. However, the repair estimates were admitted without objection by the attorney for Respondent. Neither estimate was totaled, but it appears that the estimate from Marion Ford-Mercuiy was in the amount of $1,086.20 and from Hopes Auto Body Repair in the sum of $1,109.73.

On cross-examination, Claimant testified that he had camped at Ft. Massac quite often. When Claimant arrived at the campground on October 4, 1992, he believed he was camping in an area of the park that was safe. Claimant had not inspected the area where he was camping to see if there was anything that appeared to be dangerous or a problem. Claimant testified that the tree that was involved in this case was “marked” with a red dot about three or four feet from the ground on the trunk.

Claimant testified that prior to this incident, he had talked to park rangers about trees in the vicinity being a danger.

Ronald Coram was called as a witness for Respondent. Mr. Coram is employed by the Illinois Department of Conservation at Ft. Massac State Park where he had worked for approximately four years. Mr. Coram is a site technician who was working at the park on October 4, 1992, in site security. He made regular rounds on an hourly basis and he testified that in the camping area where the incident occurred there were only a few small trees. There were not many big trees left in that campground because the area had been replanted. Mr. Coram was advised of the damage to Claimants truck and he observed the damage. Mr. Coram described the dead limb he observed as being five or six inches in diameter and eight to ten feet long. The tree branch which struck Claimants vehicle came from a persimmon tree. The persimmon tree had dead limbs at the top but was mostly a live tree.

Mr. Coram also testified that he had seen Claimants truck prior to this incident and the truck was in good repair. Mr. Coram confirmed that on the evening of this incident, conditions of weather were clear, dark and there was no noticeable wind that he knew of. The tree in question had been removed since the incident.

Mr. Coram testified that although he was through that area frequently in trips around the campground, he was not aware that there was a problem with falling limbs from trees at the time of the incident.

Terry Johnson was also called by Respondent as a witness. Johnson was an employee of the Department of Conservation at Ft. Massac State Park as the site superintendent. Mr. Johnson testified that the Department of Conservation had a program at Ft. Massac of identifying and removing dead trees that were located in the park. Such a program existed at the time of this incident. Mr. Johnson described the program as policy and procedure of the Illinois Department of Conservation consisting of marking trees, getting appropriate sign-offs, and then cutting the trees. There is no particular time when trees are marked or cut, but at Ft. Massac an attempt was made to mark the trees in August, September and October while the leaves were on. Normally after encampment in October, the staff had the time to cut the trees down. Johnson testified that much depends on when they can get appropriate “sign-offs.” The “sign-offs” are sent to every biologist in the region, the regional office for regional review, and then sent to Springfield for review. Mr. Johnson testified that the paperwork is back in a relatively short period of time on most occasions. Mr. Johnson said they could not cut down an individual tree any time they felt like it because they have to obtain appropriate permission to take that action except on occasions where there is a storm or other unusual circumstances that allow park employees more options than what they have in normal circumstances.

Mr. Johnson testified that when trees are marked for identification, they are marked with an orange dot and they are also numbered. Different colors are used for different years. Johnson examined the tree involved in the incident in question and found that the tree had not been marked in any way. If the tree had been marked, it would have had an orange dot and a number. Mr. Johnson further testified that there had been no complaints about limbs falling from trees in the area where this incident occurred.

The tree at issue in this case was removed after the incident because Johnson found that it was obviously a dying tree and was too close to the pad for safety’s sake. The tree was marked and placed on the list at the last minute and subsequently removed.

On cross-examination by Claimant, Mr. Johnson explained that the tree in question was marked after the incident. Other specialists come and actually look at the tree prior to the time that it can be removed, which was probably mid to late November. The trees may be examined by biologists, natural heritage, wild life biologists, and foresters, all of whom have to sign off. Appropriate sign-offs were obtained with respect to the tree in question and it was removed.

The State of Illinois owes a duty to the public to exercise reasonable care in establishing, maintaining and supervising its parks. (Kamin v. State (1953), 21 Ill. Ct. Cl. 467.) In Kamin, supra, the Court recognized this rule, but denied the claim of a person using a hiking trail who fell from the trail into a canyon when it was conceded that the canyon was plainly visible, and that Claimant had assumed the risks inherent in the sport of hiking, particularly where the risks were obvious and the absence of guardrails in proximity to a dangerous portion of the path could be seen.

In Damermuth v. State (1966), 25 Ill. Ct. Cl. 353, this Court again recognized the duty of the State to members of the general public to exercise ordinary care to protect them from harm in a State park. In Damermuth the Claimant fell into a concrete drainage culvert that was not protected and was in an area people were known to frequent after dark. The Court stated as follows:

“o o « though the State is not an insurer of the safety of those who make use of the park facilities, the State must exercise reasonable care in the maintenance of its parks, and in supervising the use thereof by the public."

In Wightman v. State (1978), 32 Ill. Ct. Cl. 546, this Court held that visitors to State parks are invitees to whom the State owes a duty of reasonable care in maintaining the premises. Once again, this was a walkway accident where the claimant had tripped over a metal divider supporting two paved areas. The Court stated, “this Court has held that the State of Illinois is not an insurer of safety of persons who visit its parks and recreation areas.” (32 Ill. Ct. Cl. 546, 547.) In Pearlman v. State (1979), 33 Ill. Ct. Cl. 28, 31, this Court again reiterated that,

“The State of Illinois is not an insurer and before the Respondent can be liable for Claimant’s injury it must be shown by the preponderance or the greater weight of the evidence that a dangerous and defective condition existed 0 0 0 and that the Respondent knew or should have known of said defective and dangerous condition.”

Notice to Respondent can be either actual or constructive. (Weygandt v. State, 22 Ill. Ct. Cl. 478; Hansen v. State (1981), 24 Ill. Ct. Cl. 103; Baker v. State (1981), 35 Ill. Ct. Cl. 104.) In Noonen v. State (1983), 36 Ill. Ct. Cl. 200, a visitor to a State park was bitten by a dog chained to a tree. This Court denied recovery because it was not shown that Respondent had either actual or constructive knowledge of a dangerous condition created by the dog chained to the tree.

Recovery was allowed in Stewart v. State (1985), 38 Ill. Ct. Cl. 200 when a State park visitor was injured by a defective sliding board. This Court restated the principal that a governmental entity which extends an invitation to the public to make use of its facilities for educational or recreational purposes, owed a duty of reasonable and ordinary care against known or foreseeable danger. This Court held that the Claimant had been injured by a defect which was open to discovery upon casual inspection. Accordingly, Claimant’s claim was allowed.

In Lyons v. State (1987), 39 Ill. Ct. Cl. 192, a park visitor was injured when her foot became caught in a hole on a platform near a wooden stairway at Blackhawk State Park in Rock Island. Recovery was disallowed, this Court referred to the following:

(a) The defect complained of was minor and would not have been such as to impart constructive notice.

(b) “The Respondent is not an insurer against accidents occurring to visitors to park facilities.”

(c) Park employees made routine inspections prior to the incident.

(d) Invitees, such as the Claimant, assume normal or obvious risks attendant to the use of the premises, citing Lindberg v. State (1954), 22 Ill. Ct. Cl. 29.

(e) The State cannot be expected to remove all risks of accidents which may occur in the absence of negligence. There are some risks inherent in hiking.

In this case, the tree from which the dead limb fell was located near an area where users of Ft. Massac Park camping ground were invited to park their vehicles and trailers. Some of the limbs on the tree were dead and most were alive. Respondent’s agents had no actual notice of a dangerous condition other than may have been imparted by observing that some of the limbs in the tree were dead.

The evidence shows that there was security on this site that made regular patrols for the purpose of protecting invitees making use of the park premises. The evidence clearly demonstrates that it was the policy of Respondent to remove trees that were dead or dying after receiving “sign-off’ permission from a variety of state agencies and authorities.

Claimant does not contend that the condition of the tree was any less apparent to Claimant than it would have been to any park employee. Also, it seems reasonable to conclude that the presence of trees adjoining and in the area of camping locations was a desirable and expected condition which campers seek out for the purpose of adding to the recreational pleasure to be enjoyed by users of the facility. Indeed, Claimant readily acknowledges that Claimant was aware that limbs can fall from trees. Claimant testified that in another area of this particular camping ground, the falling of limbs from trees was a problem of which the Claimant was aware.

Does Respondent, State of Illinois, have an obligation to remove all trees from the immediate vicinity of camping locations where the trees evidence any dead limbs or branches which could constitute a hazard to those using the camping sites if they should happen to fall from the tree at the wrong time? The answer to this question is difficult and important. The practical ramifications of defining the duty of Respondent State to include this responsibility could be said to have far-reaching effects on the maintenance of state camping facilities.

There was no evidence introduced into the record whether there were camping sites available to the Claimant that were not closely proximate to trees.

This Court is of the opinion that campers using camping sites adjacent to trees must be said to assume some risk associated with placing their property and their persons beneath the limbs of trees. At least some risk could be said to be incurred by placing one’s property or person beneath any tree for the reason that some material or branches could fall spontaneously or be caused to fall by an unexpected change in weather or even through the activities of wild animals known to frequent trees for habitat or forage. There is some risk associated with standing under a tree and, likewise, there is risk associated with parking one’s vehicle or camper beneath any tree.

There is no evidence in the record from which the Court can determine that merely viewing a tree or group of trees can impart actual or constructive knowledge to the agents of Respondent that a limb or limbs or debris of any kind could or might fall from the tree injuring persons or property beneath. In order to allow Claimant an award in this case, this Court must assume that Respondent’s agents can reasonably predict from a visual examination of the trees in and around the camping areas that a particular tree or group of trees constitute a hazard to those using the area. Roth from the record in this case, and from the common experience of mankind, the inclusion of such a duty within the parameters of the State’s duty to use reasonable care to protect the persons and property of members of the public making use of State recreational camping facilities would surely place a heavy burden on the State. Campers using camping pads or areas in the vicinity of trees must be said to assume some risk created by the obvious proximity of trees to the campsite. The ways of Mother Nature are diverse and unpredictable. The State cannot be made an insurer against damage caused when a single limb from a single tree happens, through the process of decay or natural pruning, to have chosen to fall to the ground. While this was an unfortunate incident and we are not unsympathetic toward the Claimant, based on the evidence we are constrained to deny this claim.

For the foregoing reasons, it is hereby ordered that the Claimants claim is denied.


text:
    (Nos. 93-CC-1302, 93-CC-1303
    Anglo American Auto Auctions, Inc., d/b/a Arena Auto Auction, Inc., Claimant, v. The State of Illinois and Illinois Secretary of State, Respondents.

      Opinion filed May 10, 1994.

    Bixby, Lechner & Potratz, PC. (Gary P. Hollander and William J. Turner, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Terrance McWhorter, Assistant Attorney General, of counsel), for Respondents.
   OPINION

Sommer, C.J.

These claims arise from two separate inquiries which the Claimant made to the Uniform Commercial Code Division of the Secretary of State concerning any and all U.C.C. financing statements on file related to a particular entity, “Mecums Countryside Motors, Inc.” Both inquiries were made via form U.C.C. 11.7, the first occurring on or about December 6, 1990, and the second slightly over seven weeks later on or about January 25, 1991. In responding to the first inquiry, the U.C.C. Division reported that there was “nothing on file” as of December 7, 1990. Before the U.C.C. Division responded to the second inquiry, the Claimant itself had already recorded a U.C.C. financing statement against “Mecums Countryside Motors, Inc.” with the Secretary of State on January 28, 1991. The U.C.C. Division identified that financing statement and no others in responding to the Claimants second inquiry.

As it turned out, both in making its inquiries and in filing its own financing statement, the Claimant had supplied the U.C.C. Division with an erroneous name for the entity. Instead of being “Mecums Countryside Motors, Inc.,” the actual name of the entity at all times was “Mecums Countryside Motor Companies, Inc.” A subsequent search of the U.C.C. records under the correct name revealed that another creditor, Amcore Bank, N.A., Rockford, had a properly-filed financing statement which was of record prior to the date of the Claimants initial inquiry to the U.C.C. Division, and that bank has now been adjudicated as having a superior lien on vehicles which the Claimant actually provided to the misidentified entity. See Arena Auto Auction v. Mecum's (1993), 251 Ill. App. 3d 96, 621 N.E.2d 254.

In the instant Court of Claims proceedings, the Claimant essentially alleges:

(1) That it was “unaware” of the correct name of the entity at the time of its requests.

(2) That the Secretary of State owed it a duty to respond to its inquiries by reporting not only information about the requested entity but also “information on all debtors whose names are substantially similar to that of the (requested) debtor,” and

(3) That as a result of the Secretary of State’s breach of that duty, it was damaged.

The State has filed a motion to dismiss in which it contends that the Claimant has misidentified the duty of care. According to the State, the Secretary of State’s U.C.C. Division was only legally required to search its records for the particular entity which the Claimant had requested and nothing more. In support of its argument, the State has submitted an affidavit from the administrator of the U.C.C. Division which states that, from its inception, the division has limited its searches to “the particular debtor name and address as requested by the searching party.” The Claimant has not tendered any counteraffidavits or other evidence on that point but has instead filed a motion for summary judgment in which it contends that it has properly stated the duty of care.

As a matter of law, the duty of care is not as the Claimant wishes it were. The operative statute is section 9 — 407(2) of Illinois’ version of the Uniform Commercial Code which provides in pertinent part:

“Upon request of any person, the filing officer shall issue his certificate showing whether there is on file on the date and hour stated therein, any presently effective financing statement naming a particular debtor and any statement of assignment thereof and if there is, giving the date and hour of filing of each such statement and the names and addresses of each secured party therein.” (Emphasis added.) 810 ILCS 5/9 — 407.

While there are no reported Illinois decisions on point, the official commentary to this provision (which can be found in the Smith-Hurd annotated version of the statute) indicates that the plain language of the statute means what it says:

“Subsection (2) requires the filing officer on request to issue to any person who has tendered the proper fee his certificate as to what filings have been made against any particular debtor ° ° V’ (Emphasis added.)

Cases from other U.C.C. jurisdictions construing their versions of Article 9 support such a reading of the statute. However, the bulk of the reported litigation over the particularity of debtors’ names has occurred under a different portion of Article 9, namely section 9 — 402, which sets forth the formal prerequisites of financing statements. Two subsections of 9 — 402 are routinely examined:

“(7) A financing statement sufficiently shows the name of the debtor if it gives the individual, partnership or corporate name of the debtor * ° and
“(8) A financing statement substantially complying with the requirements of tills Section is effective even though it contains minor errors which are not seriously misleading.” 810ILCS 5/9 — 402(7), (8).

Interestingly (but perhaps not surprisingly) this litigation occurs most frequently in the nation’s bankruptcy courts, and a significant body of case law has developed there. All of these decisions have a common legal principle as their point of origin: the creditor filing the financing statement has the duty to be diligent in ensuring that the entity’s name he places on the financing statement is correct. See, e.g., In re Marta Group, Inc. (1983), 33 B.R. 634, 639 (E.D. Pa.). From there, the cases decided under section 9 — 402 go on to arrive at widely divergent results as to whether a particular misnomer is or is not sufficiently erroneous to be “seriously misleading.” As a matter of law, the determination is not based on a comparison of the wrong name to the correct name but rather on whether a reasonable searcher would find the financing statement or would be put on notice to inquire elsewhere about it. See, e.g., In re McGovern Auto Specialty, Inc. (1985), 51 B.R. 511, 513 (E.D. Pa.):

“The resolution of the question cannot be made simply by comparing two names, but must be settled with an eye toward the intended operation of the UCC indexing system in which the errors are manifest. A reasonable searcher properly using the index is looking for the name of the debtor amid a host of similar names. The system may contain hundreds or millions of names, depending on the size of the index. The extent to which a reasonable searcher may correctly identify an erroneous listing as that of the debtor is dependent, of course, on the size of the index. Analogizing the UCC index to a telephone book is apt. Searching under an erroneous name would be much more difficult with the Manhattan phone book than with an eight page phone book for some rural county.
Furthermore, the type of index in use is a pertinent concern. The ‘file box' method, the standard bearer of indexing for generations, with drawers full of cards that allowed a searcher to riffle through myriad cards, is becoming outmoded. The vanguard, of course, is the computer retrieval system, which in its simplest form would allow for no ‘riffling’ through related names. The entry of a single name into the system may well cause the computer to cite only those financing statements on which the name is identical to the name entered. No similar names would surface.” Id., 51 B.R. at 514.

While the Claimant argues in its brief that the advent of computer indexing in itself should broaden the scope of the search to be undertaken by the U.C.C. Division, Courts considering that scenario (such as McGovern above) disagree, viewing computers as making it even more difficult for a reasonable searcher to find a substantially similar match, and put the burden back on the party making the request:

“A computer search may require more precision in request-a name search.” In re Waters, 90 B.R. 946, 960 (N.D. Iowa 1988.)

Courts have warned that “the only certainty is that a party will get filings under the exact name and spelling given, assuming no error by the clerk.” (In re Wardcorp Inc., 133 B.R. 210, 212 (S.D. Ind. 1990.) (Emphasis added.) Hence, a caveat to the requesting party has developed in the law:

“There can be less tolerance of errors in a debtors name, since such errors may prevent a searcher from discovering the financing statement. If a searcher cannot find it, the searcher cannot be burdened with the duty of further inquiry.
The debtors name is the primary indexing tool and inaccuracies may compromise the validity of a filing “ ° Any rule that would burden a searcher with guessing misspellings and misconfigurations of a legal name or that would make a searcher dependent on the discretion of the clerk conducting the search would not provide creditors with the certainty that is essential in these commercial transactions.” Id., 133 B.R. at 215.

To get an understanding of how this section 9 — 402 body of case law translates when applied instead to section 9 — 407(2), one need look no further than the very case which the Claimant has cited as the linchpin of its arguments. (Borg Warner Acceptance Corp. v. Secretary of State (1987), 731 P.2d 301 (Kan.).) Like the instant proceedings, Borg Warner was an action brought by a disgruntled requesting parly against a Secretary of State for the alleged negligence of his employees in falling to report the existence of a particular prior security interest in response to a request for a U.C.C. record search. The operative portion of Kansas’ version of section 9 — 407(2) was identical to that at issue in the instant Illinois cases. 731 P.2d at 303.

In 1977, a bank had filed a financing statement under the correct names of two individuals and under the slightly misspelled name of the entity which those individuals operated. In 1978, Borg Warner submitted a U.C.C. search request to the Kansas Secretary of State under the names of both individuals as well as under the correctly-spelled name of the entity. The Secretary of State did not disclose the bank’s 1977 financing statement in his response. In 1980, Borg Warner submitted a second U.C.C. search request listing one of the individuals as well as the correct entity name. Again the Secretary of State did not identify the bank’s 1977 financing statement in the response. In 1983 a third search request was submitted by Borg Warner listing the correct names of both individuals and the correct name of the entity with similar results. It was not until Borg Warner made a fourth request of the Kansas Secretary of State in 1984 that the bank’s 1977 financing statement was disclosed. By that point, of course, the entity was not only heavily in debt to Borg Warner but also bankrupt.

The determinative factor in establishing liability against the Kansas Secretary of State was not the similarity of the entity’s correctly and incorrectly spelled names. Rather, that case turned on the fact that the Kansas Secretary of State cross-indexed all financing statements; in other words, the searches under the correct names of the individuals should have automatically revealed the financing statement which had been filed under the slightly misspelled name of the entity. (731 P.2d at 305.) Thus, liability was predicated on the Kansas Secretary of State having failed to disclose what would have been revealed to a reasonable searcher by the specific requests that had been made. No such allegation is raised in the instant proceedings against the Illinois Secretary of State. Further, there is no evidence to indicate that the Amcore Bank financing statement at issue here would have been revealed under either U.C.C. search request which the Claimant made.

One final note. Throughout these proceedings, the Claimant has consistently professed that it was “unaware” of the correct entity name at the time of its U.C.C. requests. However, the Appellate Court opinion indicates otherwise. Based on the evidence in the record from the underlying Circuit Court litigation over the Amcore Bank lien, the Appellate Court commented on a letter dated December 21, 1990 from the Claimant’s treasurer addressed to the correct name of the entity:

“Obviously, Arena was aware of Mecum’s actual corporate name prior to its submission of requests for information to the Secretary of State’s office in January 1991. Its failure to turn up Amcore’s security interest in the subject vehicles was the result of [its own] lax investigation, not misinformation.” 251 Ill. App. 3d 101, 621 N.E.2d 258.

Accordingly, based on both the facts and the law, the Claimant’s claims against the Secretary of State should be dismissed. The Secretary of State did not breach the duty of care owed to the Claimant.

It is therefore ordered that the Claimant’s motion for summary judgment is denied and the State’s motion to dismiss is granted, and the present claims are hereby dismissed.


author: JANN, J. JANN, J.

text:
    (No. 93-CC-2498
    G.S. Robins & Co., Claimant, v. The State of Illinois, Respondent.

      Order filed August 18, 1993.

      Order filed June 29, 1994.

    G.S. Robins & Co., pro se, for Claimant.
    Roland W. Rurris, Attorney General (Lawrence C. Rippe, Assistant Attorney General, of counsel), for Respondent.
   ORDER

JANN, J.

The record in this cause indicates that this is a standard lapsed appropriation claim which should be paid in accordance with the above stipulation. This payment is made in full and final satisfaction of this claim. It is so ordered.

ORDER

JANN, J.

This cause comes on to be heard on the Claimants motion for accrued interest, due notice having been given, and the Court being advised.

The Claimant filed this claim on March 26, 1993, seeking payment for raw materials sold to the Respondents Correctional Industries. Prior demand for payment had been denied due to the lapsing of the appropriation or expenditure authority. On September 20, 1993, an award in the amount of $3,976 was entered. Because the bill was payable out of the 301 fund, the Court could not voucher payment of the award at that time. Funding for the award would have to come with legislative approval via the appropriations process in what is commonly referred to as the Court of Claims Special Awards Bill. The award has yet to be paid. In its motion Claimant seeks interest from July 16,1992, until the date of eventual payment.

The record in this case includes a departmental report which was compiled by Correctional Industries and offered as prima facie evidence of the facts contained therein pursuant to 74 Ill. Adm. Code 790.140. One of the facts contained in the report is that the invoice for the materials was not received prior to the end of the lapse period. Correctional Industries could not pay the invoice if it did not have it and it could not pay the invoice after the lapse period. This Court will not make an award for interest when the agency would not have been liable therefor. (Airwork v. State (1990), 43 Ill. Ct. Cl. 353; Arthur Anderson & Co. v. State (1987), 40 Ill. Ct. Cl. 195.) As for post-judgment interest, we have consistently held that such does not accrue pending legislative approval of awards. See Centola v. State (1988), 41 Ill. Ct. Cl. 119, and the cases cited therein.

Accordingly, it is hereby ordered that the Claimants motion be, and hereby is, denied.


author: Burke, J. Burke, J.

text:
    (No. 83-CV-0457

      In re Application of Karl J. Kempf

      Order filed September 22, 1987.

      Opinion filed May 1, 1992.

      Order filed July 26, 1993.

    Richard P. Eichoff & Assoc, and Marshall Kaplan, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

The Claimant brings this action pursuant to the Illinois Crime Victims Compensation Act (Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.), for the lost earnings and medical expenses not covered by his health carrier.

On May 1, 1981, the Claimant, Karl Kempf, was shot during the course of a robbery at an apartment building which he owned and managed in Chicago, Illinois.

The evidence established that for some time the Claimant had made his living from various real estate investments. In 1980 he entered into a partnership agreement with another individual which resulted in an 80% ownership to Claimant of the 98-unit apartment building at 5411 North Winthrop. In addition to being the majority owner of the premises Claimant assumed the responsibilities of managing this building.

The issue in this matter is whether Claimant, who is self-employed, can recover for expenses he paid out as a result of his being unable to perform his duties in managing the real estate for the partnership which in turn affected his income.

Crime victim compensation cases wherein the victim is a salaried employee are more easily resolved than matters of this nature. Claimant in the instant case is hard pressed to prove an average net monthly earning because of the nature of his income. Prior to the time of the shooting, he and his partner did not employ a management company; therefore, they did not pay management expenses for the service he rendered to the partnership. Initially, the State denied his claim for lost income because Claimant was unable to substantiate his earnings prior to the shooting to prove his reduced income. However, simple mathematics correlating the 80% ownership of the partnership which Claimant proved and the amount of expenses the partnership incurred established that, but for the shooting, the partnership would have accumulated substantially more income which would have been distributed to the partners. Therefore, Claimant would have shared in the increased income.

Claimant established by testimony and various exhibits that showed prior to the shooting the partnership incurred no expenses for management and after Claimants injury, the partnership was forced to pay a substantial management fee. The amount of the management fee appeared reasonable considering the building housed 98 units.

Wherefore, it is hereby ordered:

(1) That the Claimant be awarded fifteen thousand ($15,000) dollars in full and complete satisfaction of this claim.

ORDER

Burke, J.

This cause coming on before this Court on the motion for approval of attorney's fees by Marshall Kaplan, attorney for the Claimant, Karl Kempf, due and proper notice having been given to the said Claimant, it is hereby ordered as follows:

That attorney’s fees for Marshall Kaplan, attorney for Karl Kempf, the above-captioned Claimant, be and hereby are approved in the amount of $5,000.