author: Jann, J.

text:
    (No. 91-CC-1452
    Richard Downs and Maurice Jackson, Claimants, v. The University of Illinois and Karen A. Meyer, Administrator of the Estate of Cleo L. Meyer, Jr., deceased, Respondents.

      Order filed October 2, 1997.

    Guy Delson Geleerd, Jr., for Claimant Richard Downs.
    Lawrence Brezky, for Claimant Maurice Jackson.
    James E. Ryan, Attorney General (Anne E. Loevy, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Jann, J.

This cause comes on to be heard on Respondents motion for summary judgment and Claimant Maurice Jackson’s response thereto. Claimant Richard Downs filed no responsive pleading herein.

Claimants’ complaints arise from an auto accident on November 27, 1989, in Chicago, Illinois. Claimants were injured by the alleged negligence of Respondent’s agent, Cleo L. Meyer. Mr. Meyer died on October 23, 1994, subsequent to the filing of this lawsuit. Mr. Meyer’s death was from causes unrelated to the auto accident which is the basis for these complaints.

Claimants allege, inter alia, that Meyer was negligent and that the Respondent State of Illinois is responsible for the acts of its agents, servants and/or employees acting within the scope of their employment. Claimants allege that they were injured and sustained damages as a result of the negligence of the Respondents.

I. Dead Mans Act

Respondent, University of Illinois, seeks to invoke the protection of the Dead Mans Act (735 ILCS 5/8 — 201) to bar the testimony of Claimants at trial as to conversations and events, i.e., the auto accident, in the presence of decedent, Meyer. Respondent, University of Illinois, alleges that application of the Dead Mans Act shall prevent Claimants from testifying to the events in question and Claimants would be unable to establish the elements of a cause of action for negligence.

Before considering the merits of the arguments submitted, we must address several procedural issues. First, Claimant Maurice Jackson responded to this motion. Claimant Richard Downs has not responded. The docket sheet entries indicate a motion for substitution of attorneys, assumedly for Mr. Downs, on December 7, 1992. The attorney shown of record is Guy Delson Geleerd, Jr. for Mr. Downs, not original counsel of record. Additionally, exhibits submitted by Mr. Jackson indicate that Mr. Downs was represented by yet another attorney in a circuit court suit on February 15, 1994. The Circuit Court of Cook County case (Jackson v. Downs, No. 91 L 19183) arose from the same incident before us. The deposition of Mr. Meyer in 91 L 19183 is at issue herein. Mr. Jackson was a passenger in the auto driven by Mr. Downs which collided with Mr. Meyers vehicle. We note that the record before us does not include a report of the disposition of 91 L 19183 as required by section 790.70(c) of the Court of Claims Regulations. 74 Ill. Adm. Code 790.70(c).

The posture of the Claimants is discussed because there is reference to a second deposition by Mr. Meyer in Exhibit B to Claimant Jacksons response. Given the demands upon Court resources, we wish to avoid duplication of effort where possible. The second deposition is not before us for consideration but we believe the ruling herein will address its potential admissibility by Mr. Downs. Additionally, Claimant Jackson moves for a voluntary non-suit of decedent/agent, Cleo Meyer, to defeat application of the Dead Mans Act in the event the Court finds the deposition is inadmissible. References to “Claimant,” henceforth shall apply to Mr. Jackson.

A defendant in a negligence suit is entitled to summary judgment if he can demonstrate that the plaintiff has failed to establish a factual basis for one of the required elements of a cause of action for negligence. (Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 955, 172 Ill. Dec. 138, 595 N.E.2d 201.) Claimant argues that the rules of evidence and civil procedure will allow him to bring forth evidence which will prove all of the elements of negligence at trial. Claimant relies, in part, upon the deposition testimony of Mr. Meyer to prove his claim.

Respondent asserts that the Dead Mans Act prohibits Claimant from testifying as to events occurring in the presence of Meyer and thus prohibits introduction of Mr. Meyers discovery deposition. The Dead Mans Act states:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability.” 735 ILCS 5/8-201.

While a literal reading of the Act might imply wide application of the exclusion of evidence, current case law suggests a greatly limited application and interpretation of the statute in conjunction with the admissibility of depositions.

We shall first address the issue of who qualifies as an adverse party. This issue lies at the heart of the motion before us. Respondent seeks to invoke the protection of the Act to prevent Claimants from testifying to the collision. (We shall assume that the Attorney Generals office represents the interests of both the University of Illinois and the representative of Mr. Meyer’s estate based upon the record.) Decedent’s interests have not been stated as adverse to those of the University in the pleadings. A witness who is rendered incompetent to testify must be either another party to the case or one interested in the outcome and must be adverse to the party being protected by the Act. The theory of that legislation (the Act) is that such a person is likely to lie. (Overcast v. Bodart (1994), 266 Ill. App. 3d 428, 431, citing Cleary & Graham’s Handbook of Illinois Evidence, section 606.1, at 348 (6th ed. 1994).) Both parties cite Schuppenhauer v. People's Gas, Light & Coke Co. (1975), 322 N.E.2d 583 in support of their arguments. Schuppenhauer specifically states that “the purpose of the Dead Man’s Act is to enable parties to enjoy comparable positions with respect to testimony by them on material matters.” (322 N.E.2d at 588.) The Court continued “[that] when one interested party is incapable of testifying the danger of undetected perjury by the other party is increased. Furthermore, the influence of a personal interest is likely to alter a party’s perception of events regardless of his intent. Since self-serving statements are difficult to evaluate even with the benefit of cross-examination, they should not be admitted unless they can be balanced by the equally self-serving testimony of the opposite party.” 322 N.E.2d 583.

Respondent further relies on the holding in Smith v. Tri-R Vending (2nd Dist. 1993), 249 Ill. App. 3d 654, 619 N.E.2d 172, in which a “passenger” in a truck was killed when a driver struck a light pole. Although the Respondent claims that Smith is dispositive in the case at bar, a closer look at the facts reveals that the case at bar is distinguishable. In Smith, the plaintiffs deceased was the party who was claiming application of the Dead Mans Act. Smith sought to bar the defendant from introducing the deposition and affidavit of its deceased agent, the driver of the truck. Facts adduced at deposition were adverse to plaintiffs cause, indicating plaintiff was a trespasser. Smith’s cause was dismissed on motion for summaiy judgment, as without the facts adduced in the deposition, plaintiff could not establish the elements of a cause of action in negligence. The deposition and affidavit were filed by the defendant in support of its motion to dismiss. Plaintiff Smith invoked the Dead Mans Act which resulted in a finding that, as defendant, the only occurrence witness, could not testify, and no evidence was presented by plaintiff to rebut the motion, a cause for negligence could not stand. We note that the deposition and affidavit were not admitted pursuant to the Act. The Smith court reasoned that any inference of negligence which might normally be imputed does not apply when a defendant is deprived by operation of the Act to contest the inference by conventional means. Smith, at 663. Smith’s reasoning follows Schuppenhauer v. People’s Gas, Light & Coke Co., supra, in that the purpose of the Act is to promote mutuality.

Claimant mistakenly cites Overcast v. Bodart, supra, as authority for the proposition that Meyer is not an adverse party under the Act. Overcast deals primarily with introduction of a decedents discovery deposition which shall be discussed in part II of this order. However, Overcast deals with the improper application of the Act by the trial court. In the trial court, decedent/defendant s representative sought to bar decedents deposition testimony by invoking the Act. The Appellate Court found that such an application was without precedent and improper.

We find Claimants are adverse and persons directly interested, as defined by the Act. A “directly interested” party is an individual whose interest in the resulting judgment is such that a pecuniary gain or loss would come to him or her as a direct result of the judgment. (Bernardi v. Chicago Steel Container Corp. (1st Dist. 1989), 187 Ill. App. 3d 1010, 543 N.E.2d 1004.) The testimony of adverse parties and interested persons is disqualified to the extent that it concerned a conversation with the deceased or an event which took place in the presence of the deceased. Id. See In re: Estate of Babcock (1985), 105 Ill. 2d 267, 273, 473 N.E.2d 1316.

Claimant asserts there were no conversations with Meyer. However, the deposition he seeks to admit evidences a short conversation at page 34, lines 12-24. Claimant also cites authority for the admission of parol evidence of physical transactions with a deceased agent. (Schuppenhauer, supra at 588-589, citing Helbig v. Citizens Insurance Co. (1908), 234 Ill. 251; People v. Borders (1980), 31 Ill. App. 126.) These cases involved contract disputes and course of conduct, not negligence arising from a single incident. However, in Rerack v. Lally (1992), 241 Ill. App. 3d 695, 609 N.E.2d 730, the court allowed plaintiffs to testify as to weather condition, the mechanical condition of plaintiff’s auto, noise heard by plaintiffs and whether plaintiff had his foot on the brake. Plaintiff was not allowed to testify to the collision itself, i.e., an “event which took place in the presence of the deceased.” See also Nardi v. Kamerman (1st Dist. 1990), 196 Ill. App. 3d 591, 554 N.E.2d 397.

We hereby find Claimants are barred from testifying as to the conversations and events which took place in the presence of Respondent, Cleo Meyer pursuant to the Dead Man’s Act. 735 ILCS 5/8-201.

II. Introduction of Deposition

Claimant seeks to introduce the discoveiy deposition of Cleo Meyer under Supreme Court Rule 212(a) which provides:

“Discovery depositions taken under the provisions of this rule may be used only: * * 0 (2) as an admission made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person.” Emphasis added.

Claimant asserts that admissions made by Meyer in the deposition will allow Claimant to adduce evidence which will prove negligence by Meyer.

We find Overcast v. Bodart, supra dispositive of the issue of admissibility. The Court held that, “no logical reason exists to refuse admission of a statement into evidence because it was contained in a discovery deposition. Supreme Court Rule 212(a) expressly states that a discovery deposition may be used as an admission by a party. * * * in the same manner and to the same extent as any other admission made by that person. 134 Ill. 2d R. 212(a)(2).” Id. at 433. Furniss v. Rennick (3rd Dist. 1997), 286 Ill. App. 3d 318 specifically adopted Overcast and concluded that “any statements that the trial court concludes are relevant admissions are not precluded from evidence by Rule 212 and may be considered by the court when ruling on defendants motion for summary judgment.” Id. at 321.

III. Voluntary Non-Suit of Deceased Agent

Claimant asserts that a voluntary non-suit of Cleo Meyer as a Respondent will nullify the application of the Dead Mans Act to bar Claimants testimony. Although Claimant is correct that a non-suit would not affect potential liability to be imputed to the remaining Respondent, he incorrectly asserts that the Act would not apply to the University of Illinois. We believe the principle of mutuality expressed in Schuppenhauer, supra, would apply the Act to the University and bar Claimants testimony except as noted in part I hereof.

IV. Summary Judgment

Summary judgment is proper if and only if the pleadings, depositions, admissions, affidavits and other relevant matters on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (735 ILCS 5/2 — 1005(c)); Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 95 Ill. Dec. 305, 489 N.E.2d 867.) Although a plaintiff need not prove his case at this preliminary stage, he must present “facts sufficient to support the elements of his claim,” (Kuwik v. Starmark Star Marketing & Administration, Inc. (1992), 232 Ill. App. 3d 8, 12, 173 Ill. Dec. 543, 597 N.E.2d 251) or “some factual basis which would arguably entitle (him) to judgment.” Barber-Colman Co. v. A. & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 1071, 177 Ill. Dec. 841, 603 N.E.2d 1215.

To recover in a suit for negligence, a plaintiff must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421, 170 Ill. Dec. 416, 592 N.E.2d 1098.) When a defendant files a motion for summary judgment, the plaintiff must come forward with evidence of negligence on the part of the defendant and with evidence that defendants negligence was the proximate cause of the plaintiff’s injuries. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 108 Ill. Dec. 624, 508 N.E.2d 1201.) Liability must be premised on evidence and not on conjecture or speculation. Lindenmier, 156 Ill. App. 3d at 85, 108 Ill. Dec. 624, 508 N.E.2d 1201.

We find:

1. Claimant Downs has failed to respond or provide evidence to rebut Respondents motion. We find no genuine issues of material fact disputed and hereby grant Respondents motion for summary judgment.

2. Claimant Jacksons response, having been considered and discussed above, we shall address the sufficiency of his offer of proof in the form of Meyers deposition. As stated in Furniss v. Rennick (3rd Dist. 1997), 286 Ill. App. 3d 318, all statements considered relevant admissions may be considered in ruling on a motion for summary judgment. A fair reading of Meyers deposition is not favorable to Claimants assertions of negligence. In fact, the inference drawn is that Claimant Downs was negligent in the operation of his vehicle. Additionally, the testimony indicates Claimants were not in Claimant Jack-sons vehicle. Claimant Jackson has made no further offer of proof which would support a finding in his favor in light of the application of the Dead Mans Act.

3. Respondents motion for summary judgment as to Claimant Maurice Jackson is hereby granted.

This cause is hereby dismissed.


source: Caselaw Access Project

author: Mitchell, J. Mitchell, J.

license: Public Domain

text:
    (No. 92-CC-0392
    Peggy Ann Simmons and Harold Gordon Love, Co-Administrators for the Estate of Lewis G. Love, deceased, Claimants, v. The State of Illinois, Respondent.

      Order filed May 23, 1995.

      Opinion filed July 1, 1997.

    Robert R. Schulhof, for Claimant.
    James E. Ryan, Attorney General (Michael A. Wulf, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This cause comes before the Court upon a motion to dismiss filed by the Respondent. The Claimants are heirs of a gentleman who drowned in an open cistern filled with sewage. The cistern was located on land owned by the State of Illinois. The State was aware of the condition for over one year prior to tire accident. The State was further aware that the cistern was located in an area frequently traveled by citizens. Part of the fluid in the cistern was sewage which apparently drained from a trailer owned by Mr. Denton.

A complaint was filed in September 1991. After extensive discovery, the matter was set for trial on July 20, 1994. On July 18, 1994, less than two days before trial, the Respondent filed a motion to dismiss. The Respondent did not give timely notice of the filing of this motion to the Claimants attorney. Unfortunately, under the present rules of the Illinois Court of Claims, the tardiness of this motion to dismiss is not, in itself, sufficient grounds for its denial. This Court, however, takes note of the fact that there has been a consistent pattern of extremely late filings of motions to dismiss by the Attorney General’s office. It is hoped that this will be addressed by internal changes in procedure, or in the alternative, by a rule change in the future which will set reasonable deadlines for the filing of dispositive motions.

The Court feels that Commissioners of this Court have sufficient present authority to set discovery schedules and deadlines for the filing of dispositive motions. The Court notes that this was not done in this case, and therefore, we cannot, and do not, deny this motion on the basis of the timeliness of its filing.

Therefore, we address the merits of the motion to dismiss. The motion basically states that the case should be dismissed because the Claimants failed to exhaust their remedies. The Respondent claims that the actions of the trailer owner, Denton, in discharging sewage from his rented trailer into the cistern, were the, or a, proximate cause of the death which led to the filing of this claim. Because the Claimants failed to sue the trailer owner and exhaust those possibilities of recovery before filing this claim against the State, the Respondent argues that the claim should be dismissed.

The issue therefore becomes one of proximate cause. Were the acts of the trailer owner proximate causes of the death, or were the acts of the State proximate causes of death? If the acts of the trailer owner were the proximate cause, or a proximate cause, of the death in question, then the Claimants should have sued him and exhausted that potential remedy prior to bringing this claim. This claim would be dismissed if we found that the acts of the trailer owner were a proximate cause.

Conversely, if the actions of the trailer owner were not a proximate cause of the death, then there would be no requirement for the Claimants to sue the trailer owner prior to bringing this claim. We would, in that case, deny the motion to dismiss.

Questions of proximate cause are ordinarily ones of fact. They can only be questions of law when the facts are not only undisputable, but are also such that there can be no difference in the judgment of reasonable minds as to the inferences to be drawn from them. Here, the Respondent is asking us to dismiss a case prior to trial. We therefore may not presently have all of the facts necessaiy to decide as a matter of law whether the acts of trailer owner Denton were a proximate cause of the death of Lewis G. Love. The Illinois Supreme Court addressed a similar issue in the case of Briske v. Village of Burnham, 397 Ill. 193. The Court there stated:

"If a negligent act or omission does nothing more than furnish the condition making an injury possible, and such condition, by the subsequent independent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury."

Similar results were reached in Carr v. Shirland Township (2d Dist. 1978), 66 Ill. App. 3d 1033, 23 Ill. Dec. 655, 384 N.E.2d 449; Cannon v. Commonwealth Edison Co. (1st Dist. 1993), 250 Ill. App. 3d 379, 190 Ill. Dec. 183; and Thompson v. County of Cook (1993), 154 Ill. 2d 374, 181 Ill. Dec. 922, 609 N.E.2d 290.

All of these cases stand for the proposition that, if a defendants negligence does nothing more than furnish a condition by which injury is made possible, that negligence is not the proximate cause of the injury. Proximate cause is absent if independent acts of the third person break the causal connection between the alleged original wrong and injury. The new and independent act becomes the proximate or immediate cause of the injury.

When we apply these legal standards to the facts presently before the Court, we must of necessity conclude that we have insufficient facts to make a final decision as a matter of law whether Denton’s negligence was a proximate cause of Lewis Love’s death.

There has been significant discovery, and both parties have filed briefs on this issue. However, it is the belief of the Court that additional significant facts may be discovered or elicited at a trial of this cause.

Therefore, the motion to dismiss is denied. The Respondent is given leave to renew the motion to dismiss at the conclusion of the trial so that the issue of exhaustion of remedies will not be waived by the Respondent. This claim is therefore remanded to a Commissioner of this Court for trial.

OPINION

Mitchell, J.

This is a wrongful death action. The complaint alleges that on January 13, 1990, Respondent owned, and was in possession of, a piece of real estate in Old Shawneetown, and that on the real estate there was an open cistern or pit with vertical sides being in excess of eight feet deep. It is alleged that Respondent knew or should have known of the existence of the pit, and that Respondent negligently allowed the pit to exist uncovered, unfilled, and unprotected. It is alleged that decedent fell into the pit and drowned. The action is brought under the provisions of the Illinois Wrongful Death Act.

Respondent has admitted that Respondent owns the property, and that there was a cistern or pit on the property with vertical sides, but denies that the cistern or pit was open or that it was in excess of eight feet in depth. Respondent has also admitted that it knew of the existence of the cistern or pit at all times after the spring of 1989. Further, Respondent admitted that people traversed through the property upon which the cistern or pit was located, and admitted that Respondent received a written report from Hubert Combs early in 1989 informing Respondent of the cistern or pit.

The decedents body was discovered on October 13, 1990, approximately five days after his disappearance was noted. The cistern was covered with sheets of tin supported by two-by-four boards. At some point, Respondents agent had covered the hole with half-inch plywood and put some two-by-four posts around the edge of the hole nailing one-by-fours to the sides of the two-by-fours. The makeshift fence was three and one-half feet off of the ground and had two rungs. The barriers had been pulled down by somebody prior to the decedents death. An adjacent landowner had put sheet metal over the plywood to attempt to keep the boards installed by the State from rotting. This was done because there were children living in a mobile home near the cistern. The State was informed that the adjoining landowner had placed tin over the plywood. The adjoining landowner testified that the State had put wood over the cistern and had “done a good job.” The adjoining landowner, Denton, had looked in the cistern the first day that the decedent was missing and did not see him. They had to scoot the tin back to look in the cistern. There is no evidence in the record to suggest how it came to pass that the decedent fell in this cistern and drowned.

Claimant argues that the State had actual knowledge of a dangerous condition on State property and failed to take adequate steps to protect the public. Claimant argues that the State knew that raw untreated sewage was seeping into this cistern, and argues that the State was not merely negligent, but grossly negligent. The efforts of the State to put a cover on the cistern are said to be a “bandaid” approach to a dangerous situation. Unfortunately, Claimant offered no citation of authority on the liability issue in this case.

Respondent contends that the evidence has not preponderated in favor of the Claimant, and tire Claimants presented no evidence that the decedent fell through the covering put in place by Respondents agents. Further, Respondent argues that the steps taken by Respondent to put a cover on the pit were a reasonable exercise of Respondents duty of care. Furthermore, Respondent argues that Claimants have failed to exhaust their remedies because it was the sewage and seepage at the bottom of the hole that drowned the decedent, and no suit was filed against those allegedly responsible. Finally, Respondent argues that the damages alleged are excessive.

In acknowledging that the State has a duty to maintain its premises in a reasonably safe condition for persons legitimately on the premises, Respondent cites Owens v. State (1989), 41 Ill. Ct. Cl. 109. Owens involved a slip-and-fall case in the public aid office at Rockford. There was an accumulation of water and snow and this Court held for the Claimant stating that the water on the tile floor in the waiting room created a situation where it would be reasonably foreseeable that someone could slip and fall; to remedy this situation would not have been burdensome. The clerk should have summoned to keep the floor clear or to place mats and rugs on the floor in the trafficked areas. (41 Ill. Ct. Cl. 109, 111.) Respondent acknowledges that the State is to exercise reasonable care in the maintenance of its parks and cites Finn v. State (1962), 24 Ill. Ct. Cl. 177. The Finn case involved a hole a foot wide and four or five inches deep at the playground area near the lodge at the Pere Marquette State Park. Claimant made a claim for an injured ankle. The claim was denied because of a lack of actual or constructive notice. In the course of the opinion, the Court made the following observations:

“While it is true that Respondent is under a duty to exercise reasonable care in maintaining its parks, it is likewise a law that Respondent is not an insurer against accidents occurring to patrons while using the park facilities. Penwell v. State of Illinois, 22 C.C.R. 477.
It has been the law of this State that, before the State can be held liable for an injury on property maintained by it, it must have actual or constructive notice of the dangerous or hazardous condition. Penwell v. State of Illinois, 22 C.C.R. 477.
We have previously held that the State of Illinois in maintaining a nature park, is not obligated to warn of every dangerous place within it. It is, however, obligated to warn of a danger that exists on a trail, which it knows is being used by the public, who would have no knowledge of the existing danger. Alberta Hansen, Administrator of the Estate of Edward Boegen, Deceased v. State of Illinois, 4843.
It is our opinion that the State cannot be held responsible for every depressed area or hole into which someone might step and turn their ankle, otherwise injure themselves, throughout the State Parks. To require a constant inspection in a park of some size, where the State maintains several thousand acres for the benefit of the public, would place an undue hardship and extraordinary burden on the State by and through its agents and servants.
In practically all of the State Parks there are certain areas for picnicking, play areas for baseball, swings, and areas of recreation where the ground might be depressed, and where someone might turn their ankle, which would result in injuries, such as were sustained by Claimant. If a recovery were had in all these cases, the State could be considered an insurer of everyone using the park facilities and playground areas, which would place an undue burden on the State to malee careful inspection of every playground area as to any depression, which might be covered by grass, such as the one in question."

Respondent cites Dunbar v. State (1992), 45 Ill. Ct. Cl. 176, for the proposition that the State is not an insurer of the safety of persons who visit the parks and recreational areas. Claimant sought damages when she stepped in a hole at the DuQuoin State Fairgrounds and injured her ankle. Her claim was denied because the hole was shown to be in a landscaped area, was large and readily apparent, was a natural condition, and was located such that the area was not used by large numbers of people.

Respondent asserts that the State is not required to undertake extraordinary, burdensome inspections or maintain its parks in such condition that patrons may wander at will over each and every portion thereof and cites Lyons v. State (1987), 39 Ill. Ct. Cl. 192, and Pulizanno v. State (1956), 22 Ill. Ct. Cl. 234.

In Lyons, the Claimant sought recovery for injuries sustained when she fell after descending a flight of stairs constructed of wood and maintained by the State at the Blackhawk State Park located near Rock Island, Illinois. The claim was denied because the alleged defect was minor, and there was no evidence that Respondent had actual or constructive notice thereof. The Court stated as follows:

"Because the State is not an insurer, it cannot be expected to remove all risks of accidents which may occur in the absence of negligence. Obviously, there are certain risk inherent in hiking that must be assumed by the hiker.”

In Pulizanno, supra, this Court denied a claim for injuries sustained by Claimant who had attempted to rescue a companion and fell, injuring his leg. This Court held that Respondent could not reasonably have foreseen, or guarded against, the occurrence resulting in the Claimants injuries, and denied the claim. In so doing, this Court quoted Pollock on Torts as stating the proper rule to be followed in determining what is or is not negligence on the part of the State:

“If men went about to guard tiiemselves against every risk to themselves or others which might, by ingenious conjecture, be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on any events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.”

The site manager at the Shawneetown State Historic Site had known about the existence of this cistern for a year before the decedents death. The first time the State did anything about this cistern is when the cover, apparently placed by adjoining landowners, caved in. This occurred perhaps six months before decedents death. Respondents agent put some two-by-sixes over the cistern and some half-inch plywood. At that time, the cistern was probably eight feet across and about eight feet deep. The area is very close to the Ohio River, subject to flooding, and seepage. The site manager reported the existence of the cistern to his superiors but was not authorized to fill the cistern in until after the accident. The area is open land and the site manager had seen people walking back and forth as their needs dictated. The site manager states he didn’t fill the cistern in because he “thought they were on a deal to trade the lot” to a third party. The site manager made no recommendation to have the cistern filled in, and cannot recall whether he was ever told to take any action with regard to the open cistern after it was reported. After the site manager placed plywood over the hole, someone put sheet metal over the plywood. Although the site manager claimed to have checked the site every week after he placed the plywood on the hole, he never checked to see if there was anything under the sheet metal that had been placed over the hole.

Claimant’s expert witness testified that the value of decedent’s life over his life expectancy of 11.8 years was $876,000. The adult children of the decedent testified that his health was generally good, but he occasionally took nitroglycerine for his heart. Decedent was not on any regular medication and suffered no particular problems.

Decedent’s daughter and her family saw the decedent on a daily basis and decedent’s son stated that he saw his father regularly twice a week until he had moved about ten days prior to decedents death. There was testimony that they were a close family and missed the decedents instruction and moral training, society, companionship and love.

Claimant cites Farrow v. Augustine (1964), 45 Ill. App. 2d 295, 196 N.E.2d 16, and Hall v. Gillians (1958), 13 Ill. 2d 26, 147 N.E.2d 352, for the proposition that, in Illinois, when the decedent leaves direct lineal kin, there is the presumption that they have suffered some substantial pecuniary loss by reason of the death. This includes loss of the parent’s society by the adult child and the support and attention of the deceased parent. On the other hand, there is evidence in the record that the decedent drank heavily and on a daily basis. Respondent argues that the evidence suggests a lack of closeness between the decedent and his family.

Although the State is not an insurer of the safety of persons who visit the parks and recreational areas, it does have a duty to maintain its premises in a reasonably safe condition for persons legitimately on the premises. Owens, supra. In the instant case, the Respondent’s agents had actual knowledge of a dangerous condition and failed to use reasonable care in warning the public against this danger. Therefore, the Court awards $40,000 to the Claimant.


author: Frederick, J. Frederick, J.

text:
    (No. 92-CC-0744
    Patricia Byrd, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 2, 1997.

      Order on petition for rehearing filed December 26, 1997.

    Hisaw & Blewitt, Ltd. (Anthony Karamuzis, of counsel), for Claimant.
    James E. Ryan, Attorney General (Joel Cabrera, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This cause is before the Court on Claimant, Patricia Byrds, first amended verified complaint which was filed on February 10, 1995, alleging that the Respondent, State of Illinois, was negligent in its maintenance responsibilities as lessee of a building. Claimant alleges that on October 23, 1989, she was a business invitee of the Illinois Department of Public Aid, hereinafter referred to as “IDPA.” The IDPA was a tenant of the second, third and fourth floors a.t 6317 S. Maryland, Chicago, Illinois. Claimant fell as she descended stairs in a common area. Claimant alleges that the condition of stairs between the second and first floors caused her injuries.

A trial was conducted in this cause on December 12, 1996, before the Commissioner. Claimant appeared at the hearing and testified. Claimants Group Exhibit No. 1, copies of 17 pages of various medical records, and Claimants Exhibit No. 2, wage loss verification, were admitted into the record without any objection. Respondent presented one witness, Mr. Victor Kurpita, the assistant supervisor of the building on the day of Claimants injury. Respondents Exhibit No. 1, a copy of a one-page report by a security employee, was admitted without objection.

The Facts

Claimant, Patricia A. Byrd, testified that she was a recipient of public aid. She was leaving the public aid office when she fell on October 23, 1989. The Illinois Department of Public Aid had its offices at 6317 S. Maryland, Chicago, Illinois. Claimant had to meet with her caseworker on the second floor.

On the date of the injury, Claimant was employed as a bus attendant for Windy City Coaches. She strapped kids into the bus. Claimant worked twenty hours a week at the rate of $4.35 per hour.

Claimant left the office and fell down the stairs leading to the first floor. She walked down 15 to 20 stairs with nine more stairs to go when she fell. Claimant testified she slipped on a “piece of paper, crack and striping in the stairs.” She reached for the rail but it was not safe. It was hanging off the wall. There were approximately ten candy wrappers on the staircase. Claimant thinks the wrappers caused her to fall. She further testified there were cracks in the stairs, that there was no striping on the stairs, and that the staircase was slick. Claimant fell face first down the last nine stairs. Her right hand hit the concrete floor. Her wrist may have been broken. Claimant then ran outside the building. There were two guards on the landing of the staircase above where she fell. One of the guards retrieved her and called an ambulance. Claimant did not go in the ambulance. She took the bus to the Chatham Clinic. At the clinic, she had an x-ray and her arm was put in a cast. The third finger on her right hand was “popped out” of place. Two fingers were put into the cast that went to her elbow. Claimants arm was fractured and tire cast went from the tip of her fingers to her elbow. Claimant testified she hurt and she cried when the doctor set her finger. The cast was on her right hand for approximately three weeks. She had pain in her hand for six weeks. She could not do anything with her right hand such as cook, bathe, comb her hair, or housework. Claimant took Ibuprofen for the pain. Claimant’s hand still hurt after the cast was taken off. The doctor instructed her on exercises to improve her strength.

On cross-examination, Claimant stated that she saw the condition of the stairway on her way up the stairs but “didn’t pay attention when she was coming down the stairs.” Additionally, the Claimant had visited the same office and used the same stairs many times since 1980 to the date of injury.

Respondent presented Victor Kurpita, a supervisor in administrative services with the IDPA. He was an assistant supervisor at the time of the incident. Mr. Kurpita supervised the people who take care of the facilities and was the liaison with the landlords. In 1989, he was supervising monitors that went to the buildings every other day. The monitors would check for any problems in the buildings, anything that needed to be done by the landlords or the State, and make the facility ready for staff and clients. Mr. Kurpita did not have any recollection of maintenance problems or loose railings or tiles with respect to the stairwell in 1989. This was the type of information that monitors would bring to him.

The Department contracts with a janitorial service which cleans the facility nightly. If there were loose handrails or tiles, the Department was to notify the landlord and the landlord was responsible for repairs. On cross-examination, Mr. Kurpita testified that he had no knowledge of what Joe Hawkins, the monitor assigned to the building in question, knew in relation to the condition of the stairs in 1989. He did not know when the monitor last inspected the building prior to the Claimants fall and he did not review any maintenance records of the building prior to the hearing.

Neither party filed a brief in this matter. Both parties communicated to the Commissioner that they would not file a brief. However, the parties did make closing arguments at the hearing.

The Law

The State is not an insurer of the safety of persons visiting its buildings. (Berger v. Board of Trustees of the University of Illinois (1988), 40 Ill. Ct. Cl. 121.) Rather, the State owes a duty of reasonable care to business invitees in maintaining the premises. (Hall v. State (1992), 45 Ill. Ct. Cl. 276.) The Claimant bears the burden of estabhshing by a preponderance of the evidence that the State breached its duty of reasonable care, that the breach proximatefy caused the injury and that the State had actual or constructive notice of the dangerous conditions. Hardeman v. State (1995), 47 Ill. Ct. Cl. 292.

During the trial in this cause, the parties at times made reference to a lease, a contract for janitorial services, a deposition of Claimant wherein certain admissions may have been made, and motions to dismiss and responses to motions. Neither party presented into evidence any of these documents and, therefore, none of said documents are a part of this record and are not considered by the Court. The parties were advised prior to the hearing by the Commissioner that any evidence they desired the Court to consider must be made a part of the record at the hearing. Neither party filed a brief or any other documents subsequent to the hearing.

From the testimony and exhibits, the Court makes the following findings:

That the IDPA was the lessee of the second, third and fourth floors of the building in question;

That the IDPA contracted for janitorial services;

That Claimant was on the premises to conduct business with the IDPA during normal business hours;

That Claimant fell on the steps leaving the IDPAs office on the second floor; and

That Claimant fractured her right wrist, suffered from pain, lost two days of work, and lost the ability to attend to her personal affairs for a period of time.

Claimant testified that there was debris on the stairs and that the surface tiles were cracked and broken. She testified that these conditions caused her fall. There was no credible evidence offered by the Respondent to rebut or refute this testimony.

There was, however, no evidence presented by Claimant that the Respondent had notice of the condition of the stairs. The burden is on Claimant to produce such evidence. (Divis v. State (1969), 27 Ill. Ct. Cl. 135.) Mr. Kurpita stated that he did not recall any defective conditions on the day in question coming to his attention. He also testified that he was only contacted the day before the hearing and he did not review any documents in preparation for the hearing. His testimony is not credible on tire issues of whether dangerous or defective conditions existed at the time, or whether such conditions may have been reported to the lessor, or whether the Department or others had a duty to clean or repair the stairs. Respondent had control of the stairs and a duty to take action to keep them clean and in good repair. A janitorial service was hired to do so. It is clear from the evidence that the Claimant was an invitee for whom a duty of reasonable care was owed by Respondent. (Harder v. State (1991), 44 Ill. Ct. Cl. 235.) The salient issue in this case is whether the defective condition of the staircase existed for such a period of time as to allow the State to know of the defect and correct it. (Holman v. State (1995), 47 Ill. Ct. Cl. 372.) Constructive notice is to be determined on a case by case basis. Lambatos v. State (1992), 44 Ill. Ct. Cl. 238.

The evidence shows that Claimant walked up the same stairs about 20 minutes prior to her fall. She presented no testimony that she reported a broken handrail and candy bar wrappers on the stairs to her caseworker or any guard or other employee of Respondent. She did not testify that she saw defective conditions 20 minutes prior to her injury.

If Claimant failed to see defective conditions in such close proximity to the incident we cannot hold the State to constructive knowledge of a defective condition. The Respondent had a nightly janitorial serviced hired to clean the stairs. It was the Claimants burden to present evidence of actual or constructive notice. Claimant could have sought the monitors reports through discovery and presented evidence of notice if such evidence existed. No such evidence is before the Court.

We find that Claimant has failed to meet her burden of proof in that she has failed to prove by a preponderance of the evidence that Respondent had actual or constructive notice of a defective or dangerous condition.

For the foregoing reasons, it is the order of the Court that Claimants claim be and hereby is denied.

ORDER

Frederick, J.

This cause comes before the Court on Claimants motion for a rehearing, and the Court having reviewed the pleadings, evidence, the Courts opinion, and Claimants petition, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That on October 2, 1997, the Court issued an opinion denying Claimants claim.

2. That the Courts opinion denying the claim was based on the Claimants failure to prove by a preponderance of the evidence that the Respondent had notice of a dangerous or defective condition.

3. That Claimant walked up the stairs she fell down just prior to the fall.

4. That Claimant testified she did not pay attention when she walked down the stairs.

5. That the fact Claimant fell does not prove the stairway to be dangerous or defective.

6. That it was Claimants burden to prove a dangerous or defective condition and that the State had actual or constructive notice of the dangerous, condition or defect.

7. That Claimant did not call the security guards to testify about a dangerous condition or defect and their knowledge thereof.

8. That the State is not an insurer required to pay for all accidents that occur on its premises. Dewalt v. State (1994), 46 Ill. Ct. Cl. 293.

9. That the Court’s decision denying this claim was based on the evidence and the law.

Therefore, it is ordered that Claimant’s petition for a rehearing is denied.


author: Frederick, J.

text:
    (No. 92-CC-1780
    John Whitehead, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 3, 1998.

    Robert M. Hodge, for Claimant.
    James E. Ryan, Attorney General (S. Angela Meyers, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, John Whitehead, an inmate with the Illinois Department of Corrections, seeks judgment against Respondent, the State of Illinois, for medical negligence, healing arts malpractice, and negligent infliction of emotional distress. The three-count complaint alleges in count I, negligent and untimely treatment; in count II, a failure to treat; and in count III, the negligent infliction of severe emotional distress. The cause was tried before Commissioner Rath.

Claimant testified that on January 17, 1990, he had pain on the left side of his face and talked to Respondents medical technician about the pain. Claimant further testified that on the morning of January 18, 1990, when he awoke, he had full-blown symptoms of Bells Palsy. Claimants symptoms of Bells Palsy were pain and numb facial skin to the touch, the left side of Claimants face sagged, and Claimants left eye was drooping and watering. Claimant spoke to Dr. Khan who conducted a physical examination and told the Claimant that he was suffering from Bells Palsy. Dr. Khan prescribed Motrin for pain but did not set up any other appointment for further examinations. Claimant spoke to the doctor approximately one week later who again confirmed that Claimant was suffering from Bell’s Palsy.

In the interim between these visits, Claimant had difficulty sleeping and would wake up in the middle of the night. Claimant’s left eye would not close and he was given no patch or other eye protection. Claimant was given no medication except Motrin and Claimant was given no other treatment at this time. On January 25, 1990, the doctor advised Claimant he would provide him with another medication which Claimant recalled as being E-Mycin. Claimant was not given an eye patch or Prednisone nor was Claimant given electrical stimulation. Dr. Khan conducted no physical examination during the second visit. Claimant contends that the Motrin was not relieving his pain which felt like it emanated from his ear.

Claimant first saw Dr. Zemlyn on January 29, 1990. Dr. Zemlyn confirmed Claimants condition as Bells Palsy and stated he would provide Claimant with Tylenol 3 and “some kind of eye treatment.” Claimant believed the eye treatment to be eye wash. Three days after seeing Dr. Zemlyn, Claimant first received the eye wash. Claimant believes that the medications he was then taking had a positive effect. Apparently Dr. Zemlyn prescribed Prednisone for the Claimant on January 29, 1990, but Claimant testified the drug didn’t show up to be administered until February 3, 1990.

On the 6th of February, 1990, Dr. Khan advised Claimant that he would be receiving electric stimulation of the face and that it would be scheduled. Electrical stimulation treatment began February 22, 1990, when Claimant was hooked up to an electrical machine that discharged electricity into his face in order to make the muscles move. Claimant underwent electrical stimulation treatment for about four months. The treatments lasted 15 to 20 minutes. No eye patch or eye protection was ever ordered for the Claimant. Claimant’s left eye would not close.

After the onset of the symptoms in January of 1990, Claimant’s speech was slurred and it was difficult for people to understand Claimant because the left side of his face wouldn’t move when he talked. From January through May of 1990, it was difficult for Claimant to speak to his criminal lawyers and he was subjected to problems with other inmates who treated him differently because “anybody that is different has got problems in many circumstances particularly in prison.”

Claimant saw a specialist eye doctor whose name he did not remember in the sixth month after the onset of Bells Palsy. In the seventh month, he saw a neurologist named Dr. Eyerman from St. Louis who examined him. Dr. Eyerman hooked Claimant up to a different kind of electrical stimulation machine in order to find out how Claimant reacted. Dr. Eyerman examined the readings and took a history and talked to Claimant about what he felt should have been done and how that made what he wanted to do now difficult. When Claimant saw Dr. Eyerman in July of 1990, his condition was improved from his condition in January, 1990.

At the time Claimant saw Dr. Eyerman, the pain had subsided but Claimant was still having problems with slurred speech and with drool from the left side of his mouth. Dr. Eyerman gave Claimant a prescription for steroids. The medical records indicate there was no other treatment after that for Claimant.

At the time of hearing, Claimant had not completely recovered because Claimants skin feels dead, his eye droops, and the left side of Claimant’s mouth does not work. Dr. Eyerman’s examination results were admitted through Dr. Eyerman’s letter dated July 26, 1990. Dr. Eyerman found a 50 percent weakness in Claimant’s eye closure, elevation of the left side of the mouth in smiling, hemi-facial spasm of a small degree, taste virtually normal, no sensory deficit, and a tongue that protrudes in the mid-line. The Claimant has a facial nerve distal latency which is more than twice that of the right side.

Claimant’s expert was Dr. Sidney Feldman. Dr. Feldman testified that the standard of care for the treatment of Bells Palsy involved the use of Prednisone, electrical stimulation to the muscles of the face, and a patch on the eye. The standard is found in any textbook of medicine. The standard of care for the use of Prednisone has existed for at least 20 years. Dr. Feldman testified that the standard of care for Bells Palsy was not met in this case. Dr. Feldman stated that the limited and late use of steroids indicated a mishandling of the case. The use of Prednisone early is crucial because later treatment is notoriously ineffective. The diagnosis of Bells Palsy was made on January 18, 1990, and no Prednisone was started until January 29, 1990. No eye patch was ever ordered. Dr. Feldman stated that the standard of care was breached in Claimants case due to the fact that Prednisone was not prescribed for eleven days after the initial diagnosis of Bells Palsy. Further, Dr. Feldman testified that follow-up care of the Claimant was abominable because Claimant was not followed and a request for a neurological consultation was denied for many months. Dr. Feldman said that, because there was evidence in the neurologists report that the Claimants seventh facial nerve did recover, this is strong evidence that if Claimant had had proper care initially, Claimant would have ended up with a good nerve. If the Claimant had had the muscle stimulation that was needed, the good nerve would have prevented the muscle damage. Dr. Feldman testified that those people with a good functioning nerve were the people that have a good recoveiy.

There is no question that the standard of care was breached in this case. Claimants condition of Bell’s Palsy was diagnosed on January 18, 1990, but the prescription of Prednisone was delayed eleven days. No eye patch was ever ordered for Claimant. Electronic stimulation of Claimant’s facial muscles in order to maintain the muscle until the nerve was repaired was not started until February 22, 1990, more than a month following the initial diagnosis. Dr. Feldman thought that the electrical stimulation therapy would have met the standard of care "if it continued as long as possible.” Dr. Eyermans letter indicated this was not done. Claimant was still receiving positive results when the electrical stimulation was stopped.

Even Respondents physician testified that it would have been to Claimants advantage to commence the prescription for Prednisone earlier. Dr. Zemlyn admitted that electrostimulation of the facial muscles was part of the standard of care “if it is available.”

To prevail, Claimant must establish the standard of care by which Respondents conduct is to be measured, that Respondent deviated from the standard of care, and that the Respondents deviation was a proximate cause of the injury to Claimant.'(Cleckley v. State (1994), 47 Ill. Ct. Cl. 235; Lake v. State (1996), 48 Ill. Ct. Cl. 420.) These elements must be proven by Claimant by a preponderance of the evidence. Malone v. State (1994), 47 Ill. Ct. Cl. 354; Baker v. State (1994), 47 Ill. Ct. Cl. 407; Pink v. State (1991), 44 Ill. Ct. Cl. 295.

The Court has carefully examined the testimony and exhibits. The Claimant has proven that the standard of care for a patient diagnosed with Bells Palsy in January of 1990 was' early administration of Prednisone, an eye patch, and electrical stimulation of the face muscles. This stimulation would continue until no further improvement was detected. The Claimant has proven, through the testimony of an expert and Dr. Eyermans letter, that die Respondent deviated from the standard of care by its failure to prescribe Prednisone until Januaiy 29,1990, by its failure to provide an eye patch, and by its failure to continue the electrical stimulation of Claimants facial muscles.

The issue of proximate cause is closer. While some patients who receive standard of care treatment have worse results than Claimant, we are persuaded by Dr. Feldman’s testimony that, because Claimant had good nerve recovery, he more likely than not would have had a better recovery if his treatment had been within the standard of care. Therefore, we find that Respondent’s deviations from the standard of care in its failure to prescribe Prednisone immediately and the lateness of, and failure to continue, electrical stimulation of Claimant’s facial muscles was a proximate cause of Claimant’s residual injuries.

The Claimant must also prove his damages by a preponderance of the evidence. Often an expert is required to prove damages. Harris v. State (1989), 41 Ill. Ct. Cl. 184; Dye v. State (1996), 48 Ill. Ct. Cl. 452.

In the instant case, there has been no proof presented as to medical expenses or lost wages. The only proof presented concerned pain and suffering and disability. There was no competent opinion testimony presented by way of expert testimony as to what recovery Claimant would have had if Respondent had not deviated from the standard of care. However, having reviewed the testimony of Claimant and Dr. Feldman, the Court believes that an award of six thousand dollars ($6,000) for all pain and suffering and thirteen thousand dollars ($13,000) for disability is appropriate under the facts of this case.

For the foregoing reasons, it is the order of the Court that Claimant be and hereby is awarded the sum of nineteen thousand dollars ($19,000) in full and complete satisfaction of his claim.


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

text:
    (No. 92-CC-2705
    Willie Miller, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 25, 1997.

      Order on petition for rehearing filed September 4, 1997.

    Sachs, Earnest & Associates, Ltd. (David M. Sternberg, of counsel), for Claimant.
    James E. Ryan, Attorney General (Joel Cabrera, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

Claimant Willie Miller is seeking damages from the State for injuries sustained as a result of an accident while he was performing plumbing work at the Danville Correctional Center (hereinafter “DCC”). At the time of the incident, April 4, 1991, the Claimant was an inmate. The complaint alleges that “scaffold stays, supports or other similar mechanical devices” were used in the performance of the work at that the Structural Work Act (740 ILCS 150/0.01 et seq.) was applicable. Count II of the complaint alleges that the Respondent was negligent. It is alleged that the Claimant sustained injuries while attempting to repair a hot water pipe. An explosion occurred; die Claimant fell 30 feet and was injured.

1. Procedural Background

On July 20, 1995, the parties, through their counsels, contacted the Commissioner and indicated that they would stipulate to a record and a hearing would not be necessary.

Later, the Commissioner received a copy of a letter, dated August 24, 1995, from the Respondents counsel to the Claimants counsel. The letter states that a copy of the signed agreement between the parties, regarding the record and briefing schedule, was being transmitted to the Claimant’s counsel and that a copy of the record was forwarded to the Commissioner. The Commissioner did not receive a “record.” No copy of the parties’ agreement or briefing schedule was received.

On July 18, 1996, a letter was mailed to the parties’ counsel requesting that they advise the Commissioner of the status of this claim. The letter informed the parties that the Commissioner had not received a stipulated record or briefs.

On August 15, 1996, the Respondent filed a brief and argument for Respondent. The notice of filing indicates that a stipulated record was also filed; however, the Commissioner did not receive any documents other than the respondent’s brief. The Claimant did not respond to the July 18, 1996, letter, and has not filed a brief or any other documents.

The Respondent’s brief, at page one, identifies the seven documents which the parties agreed would comprise the stipulated record. Of the documents referenced, the Commissioner only had possession of: (1) the complaint; (4) Respondent’s answer to Claimant’s interrogatories; and (5) notice to produce. Copies of the following documents were not provided: (2) Plaintiff’s answers to interrogatories; (3) Claimant’s group exhibit C; (6) deposition of Rayland Jackson; and (7) deposition of Willie Miller. The deposition of Rayland Jackson has since been found in the Courts files.

It is each party’s burden to ensure that the record contains information that the particular party believes is necessary for its case-in-chief. To the extent that the Respondent’s brief asserts that certain facts exist, this Court will accept those facts because they are not rebutted, objected to, or contested by tire Claimant. To the extent that the Claimant’s verified complaint alleges facts, this Court will accept those facts unless they are rebutted in tire Respondent’s brief.

II. Statement of Facts

Prior to his incarceration, the Claimant received training in plumbing, completed a five-year apprenticeship and became a licensed plumber. He had years of experience in plumbing work.

While incarcerated at DCC, the Claimant did plumbing work every day. He soldered pipes every other day and was familiar with the procedures to be followed when soldering a pipe and draining or bleeding a pipe. Hundreds of times he performed the procedure of cracking a pipe to release trapped air.

On April 4, 1991, the Claimant was working on a pipe in the gymnasium at DCC when the joint burst, releasing hot water. He tried to avoid the water and jumped from a lift he had used to reach the pipe. When he hit the ground, he received multiple broken ribs and other injuries. The Claimant had been trained in the operation of the lift and had used it prior to April 4. The incident reports contained in the documents produced by the Respondent do not establish that Miller “jumped,” but rather that he moved to get away.

The Respondents version of the facts can be stated succinctly. The Claimant began working on the pipes before they were drained. He did not make sure the pipes were drained and did not check the petcock to release pressure in the pipe. The petcock was later found to be closed and should have been open to reheve pressure. He was not ordered to begin working on the pipe. The Respondents employee did not give the Claimant permission to begin his work and did not tell the Claimant the system was down.

III. Respondents Argument

The Respondent, citing Albers v. Continental Grain Co. (1995), 220 F.2d 847, and Gavin v. State (1986), 39 Ill. Ct. Cl. 146, argues that the Claimant negligently contributed to his injury by exposing himself to possible danger which he could have avoided by use of reasonable care. The Respondent asserts that the Claimants lack of due care for his own safety proximately caused his injuries.

In the alternative, the Respondent argues that the Claimant did not prove by a preponderance of the evidence that the Respondent breached its duty of reasonable care. The State is not an insurer of the safety of prisoners under its care. Hunter v. State (1994), 46 Ill. Ct. Cl. 335; Starks v. State (1992), 45 Ill. Ct. Cl. 281. The Respondent contends that Jackson, the Respondents employee, was in the process of draining the pipes when the incident occurred and that he did not give the Claimant the okay to heat the pipe or use the lift.

IV. Claimant s Argument

The Claimants position is that Jackson did order him to begin work on the pipe and use the lift.

In relation to the Structural Work Act count, the Claimant asserts that the lift “had no safety devise attached so as to prevent one from falling off,” and did not “give proper and adequate protection.”

This Court finds that there are insufficient facts to conclude that the Respondent failed to provide proper scaffolding as would be required under the Structural Work Act. Whether the Structural Work Act remains applicable to this claim is currently before the Supreme Court, but we do not need the Supreme Court’s ruling to make our finding.

Additionally, this Court finds that the Claimant has not proven by a preponderance of the evidence that the Respondent’s agent ordered him to work on the pipe when he began. Further, this Court finds that the Claimant failed to open the petcock to relieve pressure on the pipe; thus, the proximate cause of the Claimant’s injuries was his own negligence. It is therefore ordered that this claim is denied.

ORDER

Sommer, C.J.

This cause coming to be heard on the Claimant’s petition for rehearing, due notice having been given, and this Court being fully advised,

Finds that this Court’s opinion of April 25, 1997, was entered expressly without the benefit of parts of the stipulated “record.” Both parties agreed to provide the stipulated “record” and were given written notice when such was not provided.

This Court has read and examined that portion of the stipulated “record” now presented to us by the Claimant along with that portion previously presented. Particular attention has been given to the depositions of the Claimant, Willie Miller, and a witness, Miguel Arce, which had not been presented to us previously.

This Courts opinion has not changed. The Claimant has not proven by a preponderance of the evidence that the Respondents agent ordered him to work on the pipe when he began. Additionally, the Claimant’s failure to open the petcock was the proximate cause of the Claimant’s injuries. There are insufficient facts to conclude that the Respondent failed to provide proper scaffolding under the Structural Work Act.

There is a direct conflict between the testimony of the Claimant and his supervisor, Rayland Jackson, as to whether the Claimant was told to begin work on the joint that subsequently exploded. The testimony of Jonathan Booz, a third person working on draining the pipes, does not appear in the record, even though the Claimant identifies Booz. as being part of the relayed command that told him to begin work.

The petcock where Claimant Miller was working was found closed. Jackson, Miller’s supervisor, had opened two of the three petcocks in the room. He stated that he assumed that Miller, as a certified plumber, would know enough to open the petcock where he was working. There is no testimony by Miller as to why he did not open the petcock.

It is therefore, ordered that the Claimant’s petition for rehearing is denied.


author: Mitchell, J.

text:
    (No. 92-CC-3048
    Dena Pakenham, Claimant, v. The State of Illinois, Respondent.

      Order filed May 20, 1998.

    Peter F. Ferracuti, PC. (James Lindig, of counsel), for Claimant.
    James E. Ryan, Attorney General (Daniel F. Lanciloti, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

On October 7,1991, Claimant was a student at Northern Illinois University in DeKalb, Illinois, and was at Cole Hall, on Northern’s campus, attending an algebra class with about 200 to 300 other students. When the class ended at' 11:50 a.m., Claimant exited out of the right door of a double set of doors located on the north side of Cole Hall. She stepped out of the building onto the sidewalk with her right foot first, then she stepped to the left, in front of the other door, with her left foot. There was a step down of approximately one and one-half inches from the doorway to the sidewalk. As she was stepping to the left, another woman, who Claimant did not recognize, was also exiting the building and opened the left door into Claimant’s foot, causing the bottom edge of the door to cut the heel. The flow of students leaving Cole Hall at the time of injury was heavy. Claimant sat on a bench for a few minutes and then' went to the university health center where the wound was cleaned and bandaged. She was referred immediately to Dr. Kornel Balón who performed outpatient surgery at Kishwaukee Hospital the same day. She was restricted in her movement of the left leg for two weeks, and her ankle was then casted for six weeks. She filed a personal injuiy complaint in the amount of $28,377.77 on May 13, 1992. After various continuances at the request of the parties, a hearing was held before this Court on September 12,1996. Subsequent briefs were filed by the parties in 1997.

Claimant testified that she still has a lump on her left heel from the scar tissue, and that the ankle is stiff and causes her problems when she has to walk long distances or wear particular kinds of shoes. Claimant also testified that: (1) prior to the date of her injury, she had been in Cole Hall many times and was familiar with the door and entranceway which she states caused her injury; (2) she did not see any type of defect in the door at the time of her injury; (3) she has no personal knowledge of whether or not Northern was aware of any type of condition regarding the door before October 7, 1991; (4) she had never complained or known of anyone who complained about the door; (5) she has never seen anyone injured at that doorway.

Roland Schreiber, employed at Northern Illinois University as a university architect since 1966, testified that he is familiar with Cole Hall, having met with architects while the plans and specifications were being prepared and, as the building was being constructed, he observed and checked on the progress and quality. He gave details about the exterior doors at Cole Hall and stated that they have a sticker attached to them which indicates they were manufactured by Miller Industries, which is still in business. The step-down of one and one-half inches allows the door to move over any snow, slush or water which might accumulate outside.

The construction of Cole Hall complied fully with the National Building Code of 1967 which was in effect at the time. At the time of Claimants injury, the 1990 BOCA Building Code was in effect with regard to new construction and remodeling. As with the National Building Code, BOCA requires doors to be hung to swing in the direction of egress. The BOCA code allows for a step-down of eight inches on all exterior doors not required for physically handicapped or aged persons.

Mr. Schreiber is not aware of any modifications made to the doors before or after installation. They are still in the same condition as when they were installed. There were no problems or complaints prior to the injury in this case. He personally inspected the doorway, and in his expert opinion as an architect, there is nothing defective or dangerous about the door or entranceway.

Edward O’Donnell, assistant director of the physical plant, was superintendent of building maintenance at the time of the accident and was responsible for all of the building craftsmen on the campus. Northern also has a summer repair list procedure whereby craftsmen go throughout the campus making needed repairs. On May 21, 1991, Mr. O’Donnell issued a preventative maintenance work order to the carpenter shop to check all of the main doors, 1 through 17 (including the door which Claimant alleged caused her injury), at Cole Hall for needed repairs. Any repairs would have been documented. The only documented repair or change was a door closer which was replaced on one of the doors.

Claimant presented no expert or lay evidence or testimony that there was any defect or dangerous condition in the door or the one and one-half inch step-down, or that Northern was negligent in maintaining the door or entranceway at Cole Hall. She has failed to prove by a preponderance of the evidence that a dangerous condition existed or that Northern had actual or constructive notice of such a condition. The State is not an insurer of the safety of persons visiting its buildings. (Hardeman v. State (1995), 47 Ill. Ct. Cl. 292.) The Claimant has the burden of establishing by a preponderance of the evidence that Respondent breached its duty of reasonable care, that the Respondents negligence proximately caused the injury and that the Respondent had actual or constructive notice of the dangerous condition from all the circumstances in the case. (Roles v. The Board of Governors of State Colleges and Universities (1995), 47 Ill. Ct. Cl. 131.) The cause of liability cannot be based on surmise or conjecture. (Holloway v. Board of Trustees of the University of Illinois (1992), 45 Ill. Ct. Cl. 255.) Therefore, the claim of Dena Pakenham is denied.


author: Epstein, J.

text:
    (No. 93-CC-0346
    State Farm Fire and Casualty Co., as Subrogee Robert R. Reinertsen, Claimant, v. The Board of Governors of State Colleges and Universities, Respondent.

      Opinion filed December 22, 1997.

    Hinshaw & Culbertson (Robert M. Bennett, of counsel), for Claimant.
    James E. Ryan, Attorney General (Jay Spengler, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This court is rarely called upon to decide technical issues of insurance law such as this case presents. But with the State universities providing self-insurance and thus entering this field, we find ourselves embroiled in the kinds of arcane insurance issues that frequently occupy general jurisdiction courts.

This case is ultimately, but not technically, a dispute between two insurers over some of the defense costs of their common insureds defense of a libel action. Legally, this is a subrogation contract claim by State Farm Fire and Casualty Company (“State Farm”), as subrogee of its insured, against the Board of Governors of State Colleges and Universities (the “BOG”), which operates a self-insurance program (the “BOG Program”) that covered the same insured, Robert J. Reinertsen, who was a faculty member of Western Illinois University and was thus covered by the BOG Program.

The case is before the Court on the Claimant’s motion for summary judgment, which the. Respondent opposes as a matter of law. There are no disputed questions of material fact with respect to the issues argued by the parties.

The Facts

Claimant State Farm issued a liability insurance policy to its insured, Robert R. Reinertsen. Reinertsen was also covered by the Respondents self-insurance program. Professor Reinertsen was sued for slander.

State Farm initially assumed Reinertsen’s defense under a reservation of rights, but later determined that its policy did not cover the slander claim. (Although State Farms no-coverage determination was not judicially confirmed, it was, and is, undisputed.)

Reinertsen then turned to the BOG Program, which he had earlier informed of the slander suit. Based on the inapplicability of the State Farm policy and the lack of other insurance, Reinertsens defense was then assumed by the BOG in accordance with the “other insurance” exclusion of its program (article VI, section B-4), which provided that,

“the Program does not apply * * * “ to * * * injury or * * * damage for which the insured has other valid and collectible insurance, unless such insurance is * * * specifically * * * excess.”

State Farm brought this claim as subrogee of Reinertsen, seeking to recover from the BOG $6,827.13 of attorney’s fees and litigation expenses that State Farm spent on Reinertsen’s defense of the slander action prior to its determination that its policy did not cover the claim.

The Parties’ Positions

The Claimant, State Farm, essentially contends (i) that the BOG had a contractual duty to Mr. Reinertsen under its program, both to defend him in his slander lawsuit, and to indemnify him against any resulting liability, (ii) that State Farm is legally subrogated to that right, at least to the extent of its payment of such defense expenses, (iii) that the BOG Program was the primary insurance coverage for the slander claim against Reinertsen, (iv) that, as the primary insurer of the underlying claim, the BOG’s duty to defend Reinertsen supersedes the prior and lesser duty of State Farm to defend him.

The Respondent challenges the Claimant’s characterization of the two insurance coverages. Respondent denies that its duty to defend was “primary” during the period when State Farm was defending. Respondent contends that during the pre-determination period the BOG coverage was only “excess” coverage, not “primary” coverage, because under the BOG Program’s exclusion that program’s coverage is excess unless it is determined that no other “valid and collectible insurance” applies. Respondent also challenges State Farm’s right to reimbursement in the face of its own duty to defend. Finally, Respondent urges that public policy mandates that insurers be obliged to pay for their own obligations to defend their insureds lest that obligation be diluted. Respondent raises the specter of insurers seeking, and getting reimbursement of, defense expenditures from their insureds, when it turns out that the underlying coverage of the insured’s policy does not reach the claim at hand.

Several of the pertinent legal propositions are undisputed here. State Farm acknowledges, as it must, that an insurers duty to defend is broader than its duty to indemnify; (see, e.g., Aetna Casualty & Surety Company v. Prestige Casualty Company (1st Dist. 1990), 195 Ill. App. 3d 660, 553 N.E.2d 39; LaSalle National Trust, N.A. v. Schaffner (N.D. Ill. 1993), 818 F.Supp. 1161) and that it had a duty to defend under its policy despite its ultimate inapplicability, until a proper determination of non-coverage was made. For its part, the Respondent BOG does not dispute its parallel contractual duty to defend Mr. Reinertsen’s slander claim or the general proposition of State Farms right to stand in Mr. Reinertsen’s shoes as his subrogee to assert this reimbursement/subrogation claim. And, as noted above, neither Reinertsen nor the BOG have disputed State Farm’s non-coverage determination.

Jurisdiction

Our jurisdiction over this claim is not challenged. We observe nonetheless that our jurisdiction here is founded on section 8(b) of the Court of Claims Act (705 ILCS 505/8(b)), which grants us jurisdiction over claims “founded upon any contract entered into with the State * * which encompasses the university systems. The parties agree that the underlying action here is predicated on enforcement of the BOG Program, which is a contract entered by the BOG with its employees such as Reinertsen. No issue of the validity of that contract or of the contractual undertakings therein is raised.

Opinion on Liability

This defense cost reimbursement-subrogation issue is largely determined by the legal characterization of the two insurance coverages involved, but not quite as absolutely as the parties would have it. We commence by rejecting the starting analyses of both parties.

State Farm says that the reimbursement issue is entirely determined by the characterization of the BOG coverage of Reinertsens slander claim as “primary” rather than “excess,” as it urges us to find, and as we do find below. However, State Farm’s liability analysis is slightly oversimplified. Other factors, including the status and character of its own policy coverage, may bear on the ultimate liability in some circumstances.

At the other analytical extreme, we must also reject the BOG’s argument that reimbursement of State Farm is precluded as a matter of law due to State Farm’s duty to defend Reinertsen (at that time) under its own policy, irrespective of how the two insurance coverages are characterized. We reject this analysis for lack of authoritative support and because it is based on two erroneous premises: first, that this is a contest between two “primary” insurance coverages, which it is not (rendering irrelevant or distinguishable the case law cited by the BOG and the primary-primary insurance cases cited by State Farm, e.g., Home Indemnity Company v. General Accident Insurance Company of America (1st Dist. 1991), 213 Ill. App. 3d 319, 572 N.E.2d 962, 157 Ill. Dec. 962; and second, that this is a legal fight between two insurers, which is only indirectly and immaterially so.

This is a dispute between the insured and his primary insurer, with a second insurer standing in the insured’s shoes as his subrogee. The sole basis of liability advanced in this case is the subrogation theory- — which rests on the rights of the insured. No contribution or other theory is advanced. Our decision is thus limited to the insured’s subrogated rights.

The issue presented is thus, whether or not the insured can recover, from his primary liability insurer, defense costs expended by him prior to the time the primary insurer assumed the defense. It is immaterial that the costs were paid by a second insurer — at least where the second insurer is not a “primary” insurer, as we here conclude that State Farm was not. We find that State Farm was not a primary insurer for the elegantly simple reason that it was not an insurer of the subject slander claim at all, which is undisputed by the parties.

On the other side of the fence, it seems clear that the BOG was a primary, rather than excess, insurer {i.e., indemnitor) as to the slander claim against Reinertsen, based on the terms of its “other insurance” exclusion clause (article VI, section 4-B of the BOG Program, quoted above).

As our Courts have held, the “other insurance” exclusion clause in an insurance policy is the principal, and usually the sole, determinant of whether a particular insurance policy or coverage is primary or excess coverage (Putnam v. New Amsterdam Casualty Company (1970), 48 Ill. 2d 71, 269 N.E.2d 97), although arguably other contractual provisions of a policy may also be considered if relevant (the “entirety of the policy” approach) (see, e.g., Illinois Emcasco Insurance Co. v. Continental Casualty Co. (1st Dist. 1985), 139 Ill. App. 3d 130, 487 N.E.2d 110, 93 Ill. Dec. 666. In this case, the BOG Programs “other insurance” clause is a form of “excess” clause that renders the coverage excess where — but only where — “the insured has other valid and collectible insurance.” In cases where this exclusion clause does not apply (so as to render the BOG coverage “excess”), it is clear that the BOG coverage is applicable as primary coverage in accordance with the terms of the program. In this instance, the BOG excess clause plainly is not triggered by the inapplicable State Farm policy, and no other insurance coverage has been suggested, leaving the BOG Program coverage as primary.

More critically, and as State Farm emphatically and correctly contends, its policy was always inapplicable to Reinertsens slander claim. The State Farm policy did not suddenly become inapplicable only when State Farm made its later determination (or, in the more usual case, when a Court finally makes a declaratory judgment). While the State Farm policy surely imposed a duty to defend under Illinois insurance law, the obligation to defend is not the same as the obligation to indemnify. Indeed, it is broader. We conclude that the duty to defend under another policy, by itself, does not trigger the “other insurance” clause of the BOG Program. Accordingly, the BOG Program was Reinertsens primary coverage of his slander claim from the outset, and was the only primary coverage applicable to Reinertsens defense.

This takes the analysis to the point of decision. With the dispute now firmly characterized as insured-and-non-insuring subrogee (State Farm) versus primary insurer (BOG), with respect to the defense of a particular tort liability coverage, the Court concludes that tire primary insurer is liable for defense expenditures that were advanced in good faith by the insured or by his subrogee. In the circumstances presented, State Farm as subrogee of Reinertsen can, and will, recover the disputed defense costs from the BOG.

We understand that there is no Illinois precedent directly on point; at least the parties and this Court have not found any. However, it is established case law that an excess insurer can recover advances from a primary insurer. See, discussion in Home Indemnity Company v. General Accident Insurance Company of America (1st Dist. 1991), 213 Ill. App. 3d 319, 572 N.E.2d 962, at 965, 157 Ill. Dec. 498, at 501, citing New Amsterdam Casualty Company v. Certain Underwriters at Lloyd’s, London (1966), 34 Ill. 2d 424, 216 N.E.2d 665; Aetna Casualty & Surety Company v. Coronet Insurance Company (1976), 44 Ill. App. 3d 744, 358 N.E.2d 914, 3 Ill. Dec. 371; Fireman’s Fund Indemnity Company v. Freeport Insurance Company (1961), 30 Ill. App. 2d 744, 173 N.E.2d 543; see also, Country Mutual Insurance Co. v. Anderson (1993), 257 Ill. App. 3d 73, 628 N.E.2d 499, 195 Ill. Dec. 35; Padilla v. Norwegian American Hospital (1994), 266 Ill. App. 3d 829, 641 N.E.2d 572, 204 Ill. Dec. 348; Sportmart v. Daisy Manufacturing Co. (1994), 268 Ill. App. 3d 974, 645 N.E.2d 360, 206 Ill. Dec. 355.

We find no material distinction, for this purpose, between the status of an insurer as an “excess” insurer and as a “non-insurer” (i.e., an insurer with inapplicable coverage). In both postures, the insurer seeking to recover advanced-in-good-faith benefits (here State Farm) did not have a present duty to insure the underlying claim at the time the expenses were paid. The technical reasons why such a duty did not exist may differ — one is a dollar limit, whereas the other is a lack of substantive coverage — but the relevant result is identical: no present duty to insure. Without a present duty to insure, we find no basis for precluding application of the insurance subrogation right, as the BOG has urged us to do. Nothing in our analysis in any way detracts from the initial obligation to defend (even under an inapplicable policy), and our conclusion in no way undermines the rights of the insured.

We therefore find the foregoing authority that allows subrogation recovery by excess insurers from primary insurers can be applied (or extended) to allow subrogation recovery from a primary insurer by an insurer who has an inapplicable policy issued to the same insured.

We also reject the two additional points advanced by the BOG as defenses to its liability for the disputed defense costs. First, the BOG complains about the delay in State Farm’s determination that its policy did not cover the slander claim. No authority has been presented and no prejudice has been shown by the BOG that gives rise to any consequences of that delay. Second, the BOG attacks the adequacy and timeliness of Reinertsen’s notice to it of the slander claim and lawsuit. However, such defects were waived by the Bog’s acceptance of the defense and assumption of the primary insurance indemnity. See, O’Brien v. Country Mutual Insurance Company (1st Dist. 1969), 105 Ill. App. 2d 21, 245 N.E.2d 30.

Conclusion and Order

For the foregoing reasons, we find the BOG Program is liable for reimbursing State Farm, as Reinertsen’s subrogee, for the sum of $6,827.13 expended as defense costs properly payable by the BOG as the primary insurer of Reinertsen’s slander claim. For this reason, Claimant is entitled to judgment as a matter of law, and we grant Claimant’s motion.

It is hereby ordered: (1) Summary judgment is entered for the Claimant and against the Respondent; (2) Claimant is awarded $6,827.13 against the Board of Governors of State Colleges and Universities in full and final satisfaction of this claim.

       We note in passing that if State Farm and the BOG Program had both been primary insurers of Reinertsen’s slander claim, it is possible that an entirely different analysis, and other public policies 'underlying insurance law, might well apply. See, Home Indemnity Company v. General Accident Insurance Company of America (1st Dist. 1991), 213 Ill. App. 3d 319, 572 N.E.2d 962, 157 Ill. Dec. 962, and cases cited therein. We do not address that situation, nor do we express, a view as to whether subrogation is available in such circumstances for reimbursement between primary insurers.


author: JANN, J.

text:
    (No. 93-CC-0499
    William A. Kroll, Claimant, v. Athletic Association of the University of Illinois and Neale R. Stoner, Respondents.

      Opinion filed August 22, 1995.

      Order of Dismissal filed August 28, 1997.

    Marvin Gerstein, for Claimant.
    James E. Ryan, Attorney General (Charles R. Schmadeke, Assistant Attorney General, and Edward Rawles, of counsel), for Respondent.
   OPINION

JANN, J.

This cause comes on to be heard on Respondents motion to dismiss and Claimants response thereto. The Court being fully advised in the premises finds:

1. Respondents motion to dismiss as to count II, breach of employment contract, is denied. Neale Stoner is named in count I in his official capacity as athletic director and a fair reading of the remainder of the complaint clearly indicates that Stoner is named in his official capacity as a university employee.

2. Respondents motion to dismiss counts I and III for failure to file within the statutory limitation period is granted. Claimant’s original action was filed in United States District Court. That action was “ultimately dismissed” (per Claimant’s response) on July 22, 1991, by the Seventh Circuit Appellate Court for lack of jurisdiction. Claimant filed in the Court of Claims on September 21, 1992. The cause of action arose June 1, 1988, per Claimants complaint. Pursuant to section 13 — 217 of the Code of Civil Procedure (735 ILCS 5/13 — 217):

«o o st if o o s tjle acyon js dismissed by a United States District Court for lack of jurisdiction, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after “ * 8 the action is dismissed by a United States District Court for lack of jurisdiction.”

Claimant failed to file within one year of the original dismissal by the United States District Court and is thereby time barred before the Court of Claims. (See Suslick v. Rothschild Securities Corp. (1989), 131 Ill. Dec. 178, 128 Ill. 2d 314, 538 N.E.2d 553 and Raper v. St. Mary’s Hospital (1989), 130 Ill. Dec. 131, 181 Ill. App. 3d 379, 536 N.E.2d 1342.) Claimant cited Raper for the proposition that 735 ILCS 5/13 — 217 applies to this cause. However, Raper further states that the appropriate starting date for measuring the one year period was the date of the Federal court order dismissing plaintiffs complaint, not the date of the Federal court order concluding the entire matter. Suslick, supra, found that a State court action was not timely filed because it was filed within one year of the Sixth Circuit Court of Appeals order affirming the district courts dismissal and that the one year period ran from the date of dismissal, not the date of affirmance of dismissal by a Federal appellate court.

This cause is hereby returned to the Commissioners docket for further proceedings on count II.

ORDER OF DISMISSAL

This matter coming on to be heard on the parties’ joint motion to dismiss, and the Court being advised the above matter has been resolved by settlement, it is hereby ordered that the above cause be dismissed with prejudice, each party to pay its own costs.


text:
    (No. 93-CC-1729
    Kenneth L. Lamkey, Claimant, v. The State of Illinois, Department of Corrections et al., Respondents.

      Order filed November 13, 1997.

    Kenneth L. Lamkey, pro se, for Claimant.
    James E. Ryan, Attorney General (Joel Cabrera, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Epstein, J.

This prisoners claim, brought as a tort claim for personal injuries suffered as a result of the Respondents alleged deprivation of Claimants special medically prescribed diet at the Sheridan Correctional Center, as required by Department of Corrections (“IDOC”) regulations, is before the Court on the Respondents motion to dismiss, which has been briefed by the Respondent and to which the Claimant has replied.

The Respondents motion asserts res judicata on the basis of the adjudication of the United States District Court in Lamkey v. Roth (U.S.D.C., N.D. Ill., February 25, 1997), No. 93 C 7080. In the Federal Lamkey case, this Claimant sued the same individual defendants (other than former Director Peters), but not the State or IDOC, on an Eighth Amendment Constitutional claim. That Constitutional claim is not the same cause of action as the State tort claim advanced in this Court, and indeed imposes a higher standard of liability than the State claim, and thus the bar wing of the res judicata doctrine does not apply to bar this liability claim in this Court.

The collateral estoppel wing of the res judicata doctrine, however, is another matter. Our review of this claim against the decision of the District Court (Grady, J.) shows that both are suits on the identical underlying injury and both lawsuits are based on, and only on, the identical alleged wrongdoing — the dietary violations allegedly effected by the same persons. Thus the Federal Court adjudicated the identical claim of injury and damages as that asserted in this case.

Accordingly, the Federal Courts finding, in its summary judgment ruling against Mr. Lamlcey, that he (the Claimant here) had failed in that court to show evidence of a health injury flowing from the alleged acts of the defendants is a finding that we can, and should, recognize as a collateral estoppel against the Claimant on his respondeat superior claims against this Respondent for the same acts of tire same IDOC employees.

Claimant has had a full Federal bite at this apple, and should not be given a second bite merely because he can find another legal theory in another legal forum to sue on the same injury. Mr. Lamkey has now exhausted his remedies, and this claim will be dismissed.

This claim is dismissed as collaterally estopped.