author: Patchett, J.

text:
    (No. 87-CC-1555
    Walter Montgomery, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 22, 1991.

    Walter Montgomery, pro se, for Claimant.
    Roland W. Burris, Attorney General (Kimberly Dahlen and Judy Watts, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Patchett, J.

This complaint was filed while the Claimant was a resident of the Illinois Department of Corrections. Claimant had purchased a Timex watch for $31.95 at the Menard commissary on August 8, 1984. The Claimant alleged that he still owned and possessed the watch on November 11, 1984, when he left his cell to go to work detail. Upon returning to his cell, he found his cell mate still asleep, but claims the door which he had left on deadlock was open. He discovered his watch missing at the time.

The departmental report filed in this case tends to confirm that when the Claimant left his cell, the cell was indeed placed on deadlock. Upon returning, if the Claimant actually found the door to have been removed from deadlock, then either agents of the Department, or fellow inmates could have entered the cell during his absence and removed the watch.

This Court decided a somewhat similar claim under the doctrine res ipsa loquitur in Walker v. State (1986), 38 Ill. Ct. Cl. 286. However in the Walker case, the Claimant did not have a cellmate. In the Walker case, the cell was also placed on deadlock upon the prisoner leaving, and when the Claimant returned to the cell, he found that his cell had been searched by agents of the Department of Corrections. He then claimed that certain items of personal property were missing. Under those limited circumstances, this Court applied the doctrine res ipsa loquitur, and granted the Claim.

We do not feel that the Walker case applies here. In this case, the Claimant had a cellmate who was present the entire time. The Claimant was gone from the cell on the day in question. Secondly, there is no evidence before this Court to indicate that the cell was searched by agents of the Department of Corrections during his absence. Since the facts in this case do not establish that at any time the cell, and the personal property included therein, were in the sole and exclusive possession of the Department of Corrections or its employees, we find the Walker case to be inapplicable. We also find that no bailment was created. Therefore we must deny liability, and deny this claim.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 87-CC-2473
    Denton Arterburn, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 29, 1990.

    Lema, Moore & Carroll, for Claimant.
    Neil F. Hartigan, Attorney General (Gregory Thomas Condon, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This case arises out of a claim by Denton Arterburn, Claimant, who brings an action for personal injury arising out of an incident on February 23, 1986, while incarcerated in the Jacksonville facility of the Illinois Department of Corrections. Claimant filed a two count Complaint in tort alleging negligence on the part of the Respondent, State of Illinois. Count II was dismissed prior to trial.

The complaint alleges that while Claimant was incarcerated at the Jacksonville State Correctional Facility he slipped on the asphalt shoulder of a concrete road in the facility, which was covered with ice and snow, injuring his right shoulder. The basis of his complaint is that he was denied prompt and adequate medical care which the State had a duty to provide. Claimant seeks damages of One Hundred Thousand Dollars ($100,000.00) and punitive damages of One Hundred Thousand Dollars ($100,000.00) in the Court of Claims. Respondent asserts a set-off of forty-four thousand five hundred eighty-five dollars and three cents ($44,585.03), for the State’s support of Claimant’s children.

At the time of the Hearing, Claimant was fifty (50) years old. Claimant is mildly retarded with an IQ of 62. Claimant testified that he fell on snow and ice while walking back from the commissary to his barracks on February 23,1986. After the fall, Claimant was taken to the prison infirmary and subsequently referred to Passavant Hospital in Jacksonville, Illinois. At Passavant Hospital, Claimant was seen by Dr. Harvey D. Scott. Dr. Scott diagnosed Claimant’s injury as a third-degree separation of the acromioclavicular joint.

Claimant testified he was told that he would have surgery on the Tuesday following the injury, but the Doctor decided not to do the surgery. Claimant testified that he never told anyone he did not want surgery but that the Doctor decided not to do surgery because it might leave a scar.

Dr. Scott’s report indicated that Claimant could be treated with open reduction or conservative care. Conservative care would leave Claimant with a prominent distal clavicle. Open reduction would leave the Claimant with a scar. Dr. Scott’s report indicated Claimant did not want to have surgery.

At the hearing, Claimant could move his left arm forward, around, up and down, bend it and straighten it out in every direction. He could not do so with his right arm. Claimant testified to continuous pain since the fall.

Dr. Scott’s records indicate Claimant was examined by him on February 25,1986. Claimant had been seen at the prison by Dr. Peterson and appropriately treated by a sling and medication. The Doctor’s records indicate that after explaining to the Claimant the conservative and surgical approaches, Claimant decided against surgery. Dr. Scott advised Claimant that if Claimant changed his mind and wanted surgery, to notify Dr. Scott so arrangements could be made. The report was dictated by the Doctor in the presence of the Claimant.

Claimant returned to see Dr. Scott on March 25, 1986. Claimant did have tenderness and stiffness in the joint but was doing reasonably well. Claimant was started on physical therapy. Claimant was again seen by Dr. Scott on April 29, 1986. At that time, the Claimant had lost some range of motion. The Doctor advised Claimant to be more aggressive in his therapy. Dr. Scott felt the range of motion could be worked on without surgery but indicated he would take an x-ray if Claimant was still experiencing pain the next month.

On May 29,1986, Dr. Scott again saw Claimant and the Doctor indicated that the Claimant had no complaints. The stretching exercises were mobilizing the shoulder and the Doctor felt with a continued exercise, nothing further needed to be done. The Doctor advised the Claimant that if he refused organized therapy, he would simply have to live with the restricted motion.

On June 3,1986, x-rays were taken of Claimant. The x-rays appeared negative for fracture. The medical progress notes for the May 3,1986, examination indicate Claimant stated he had no pain and no difficulty with the exercises. The medical records also indicate that Claimant only appeared for physical therapy three times.

The Departmental Report introduced into evidence indicates that the medical director of the Jacksonville Correctional Center reviewed Claimant’s medical file and found that Claimant received timely and appropriate care by the physicians involved.

Claimant introduced an evidence deposition of Dr. James K. McKechnie, an orthopedic surgeon from Charleston, Illinois. He reviewed Claimant’s medical records and examined Claimant. His diagnosis was residual acromioclavicular dislocation, third degree involving his right AC joint. Dr. McKechnie also believed that Claimant had developed an adhesive capsulities in his shoulder and that was what was causing his limited mobility of the shoulder. The adhesive capsulities was a secondary result of the immobilization for treating the injury and then a voluntary or involuntary splinting of the shoulder by the patient and failure to regain a natural range of motion.

Dr. McKechnie recommended that Claimant initiate a course of vigorous physical therapy in an effort to relieve the adhesive capsulities condition. Dr. McKechnie testified that he usually treated third degree AC separations surgically. He did, however, admit that there are authorities who recommend a conservative treatment. He further stated there can be functional problems whether the conservative or surgical treatments are used.

Dr. McKechnie could only testify that “the pain and deformity that come from the AC joint itself might (emphasis added) have been prevented by a surgical correction of the deformity at the time of the injury. The adhesive capsulities is, of course, another problem that Claimant has and not related to having or not having surgery.” Dr. McKechnie further testified that the decrease in range of motion could be attributed to Claimant’s lack of cooperation with the prescribed physical therapy. Dr. McKechnie further testified that he did not believe there had been an insufficient examination on Mr. Arterburn by Dr. Scott nor that there had been an insufficient diagnostic procedure performed by Dr. Scott. Dr. McKechnie felt there had been a careful diagnosis and that there was no act or omission contrary to generally accepted medical practice by Dr. Scott.

For the Claimant to recover against the State, he must prove by a preponderance of the evidence that negligent acts of the State proximately caused the Claimant’s injuries. The State has a duty to provide reasonable medical care for prison inmates and negligent treatment of a prison inmate by a prison doctor may lead to liability on the part of the State. See McDougle v. State (1978), 32 Ill. Ct. Cl. 463.

The Claimant has the burden to present medical evidence of standard of care under the circumstances and that the State deviated from the standard of care. (See O’Donnell v. State (1980), 34 Ill. Ct. Cl. 12.) The Claimant has failed in its burden to prove a standard of care and a deviation by the Doctor. There has been nothing in the record other than Claimant’s testimony to indicate that inadequate medical care was afforded Claimant. There was no expert testimony to indicate what the standard of care was, and that the State provided inappropriate treatment. The Claimant’s own expert, Dr. McKechnie, testified that the treatment afforded Claimant by the State was appropriate. Dr. McKechnie testified that Dr. Scott gave Claimant a sufficient examination, a sufficient diagnostic procedure had been performed, that Dr. Scott made a careful diagnosis, and that Dr. Scott committed no act or omission as to the treatment of Claimant contrary to generally accepted medical practices. Dr. McKechnie further testified that either surgical or conservative treatment, as was given in this case, were accepted approaches to the treatment of a third AC separation.

The Departmental Report indicates Dr. Scott informed Claimant of the two approaches, that Claimant chose not to have the surgery, and that he could have at any time advised the doctor that he changed his mind and wanted surgery. It is apparent from the record that there was no malpractice committed upon Claimant, that he was informed of the approaches to treatment and that Claimant has failed in his burden to prove contrary.

The issue of set-off does not need to be decided because it is the opinion of this Court that Claimant is not entitled to damages. The Claimant has failed in his burden of proof and for that reason we deny this claim.


author: Montana, C.J.

text:
    (No. 87-CC-4067
    Royal Dental Manufacturing, Claimant, v. The State of Illinois, Respondent.

      Opinion and order filed January 17, 1989.

    Evans & Dixon, for Claimant.
    Reed, Armstrong, Gorman & Coffey, for Respondent.
   OPINION AND ORDER

Montana, C.J.

The Respondent has moved to dismiss the complaint. In ruling on a motion to dismiss, all facts properly pleaded in the complaint and those contained in exhibits made part of the complaint are to be taken as true for purposes of (and only for the purposes of) the motion. Soules v. General Motors, Corp. (1980), 79 Ill. 2d 282; 37 Ill. Dec. 597; 402 N.E.2d 599.

As so construed, the complaint alleges that Claimant was the lowest responsible bidder for certain materials the Respondent wished to purchase under the Illinois Purchasing Act. (Ill. Rev. Stat. ch. 127, pars. 132.1ff, hereinafter referred to as the “Purchasing Act”.) Instead of awarding the contract to Claimant, the Complaint alleges that Respondent awarded the contract to a bidder which had submitted a higher bid which, Claimant asserts, establishes a violation of the Purchasing Act.

Initially, we note that the Purchasing Act requires more than the lowest bid. It requires the Respondent to accept the lowest “responsible” bidder (Section 6a of the Purchasing Act, Ill. Rev. Stat., ch. 127, par. 132.6a.), which permits Respondent to consider in its discretion factors other than a low price in determining which bidder should be awarded a contract. (Section 132.6 of the Purchasing Act, Ill. Rev. Stat. ch. 127, par. 132.6.) But, we need not decide whether the complaint sets forth sufficient allegations to establish that Respondent abused its discretion in determining that Claimant’s competitor was more “responsible” than Claimant even though its price was higher. The complaint fails for more basic reasons.

The complaint asserts two theories of recovery. The first theory is grounded on section 8(a) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(a)) which states, in pertinent part, that this Court “shall have exclusive jurisdiction to hear and determine * * * [a]ll claims against the State founded upon any law of the State of Illinois * " Claimant’s argument is that since, in its view, there has been an alleged violation of the Illinois Purchasing Act, this Court can award it damages under section 8(a) of the Court of Claims Act.

However, the Purchasing Act provides no private right of action for damages on the basis of an alleged violation of its provisions. This Court will not imply such a right of action and there is no authority cited or discovered by us that would compel us to do so. Accordingly, we do not accept Claimant’s first theory of recovery based upon section 8(a) of the Court of Claims Act and an alleged violation of the Purchasing Act.

Claimant’s second theory of recovery is based upon section 8(d) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 489.8(d)) which gives this Court exclusive jurisdiction to hear and determine “[a] 11 claims against the State for damages in cases sounding in tort * * Here, Claimant argues that Respondent’s alleged violation of the Purchasing Act is a tort and, therefore, Claimant is entitled to damages caused by Respondent’s action. We need not decide the merits of Claimant’s doubtful assertion that in this case an alleged violation of the Purchasing Act is a tort. It is sufficient in ruling on this motion to cite the Illinois Supreme Court’s holding in Anderson Electric Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146; 104 Ill. Dec. 689; 503 N.E.2d 246. In that case, the Court held that a plaintiff, such as the Claimant here, who seeks recovery of purely economic losses such as profits due to defeated expectations of a commercial transaction, cannot recover in tort. Therefore, Claimant’s second theory of recovery must fail as well.

Accordingly, it is hereby ordered that Respondent’s motion to dismiss is granted and this claim is dismissed.


author: Sommer, J.

text:
    (No. 87-CC-4188
    Charles R. DeWitt, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 29, 1991.

    Harris, Lambert & Wilson, for Claimant.

      Roland W. Burris, Attorney General (Edward W. Dwyer, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

The Claimant, an inmate at the time with the Illinois Department of Corrections, seeks damages against the Respondent, State of Illinois, for pain and suffering, future medication, and permanent injury based on a slip and fall which occurred at the Shawnee Correctional Center on October 1,1986.

The Claimant’s pro se complaint originally sought $10,000.00 in damages. The Claimant, now represented by counsel, has made a motion to amend pleadings to conform to proof asking for leave to amend the complaint to seek an award of $20,000.00.

On the date in question, the Claimant was employed as a clerk for Southeastern Illinois College in an office located on the first floor of the vocational building at Shawnee. The entrance to that building consisted first of a pair of exterior glass doors from the outside into a foyer. Located in the foyer is a metal detector and table for the purpose of checking inmates for metal being brought into or out of the building. A stairway to the second floor of the building rises to the left upon entering the foyer.

From the foyer into the interior of the lower level of the building, there is a set of interior glass doors leading to a general reception area. Through the interior glass doors, a desk is located as a station for a security officer whose assignment is to control and monitor the movement of inmates into and out of the building.

The Claimant testified that he had reported to his assignment in an office on the first floor of the vocational building at 8:30 a.m. Later in the morning, in connection with his job, he was required to visit an office on the second floor of the building. He went upstairs to an office on the second floor where he remained approximately ten to fifteen minutes. Thereafter, he descended the stairs and walked through the interior glass doors into the reception area. Immediately after passing through the interior glass doors, his left foot slipped and he fell breaking his ankle. The Claimant stated that the floor surface was a highly cleaned and buffed, very shiny tile floor. The Claimant further stated that when he fell, the floor was damp and exceptionally slick.

The Claimant testified that there were no warning cones or other precautionary signs which would have alerted him that the floor was damp. At the time of the fall, the Claimant was wearing State issued shoes with hard soles. Additionally, he testified that he would not have been able to leave the building and re-enter without a pass issued by the prison authorities. He stated that no such pass had been issued to him, and he had not left the building.

The Claimant deposed inmate Stock as a witness. On the date in question, Stock was a janitor in the vocational building. At the time of the Claimant’s fall, Stock stated he was seated just inside the interior glass doors next to the desk talking to Officer Shanks; and he saw the Claimant come down the stairs, go through the interior doors and slip and fall down. Stock testified that another janitor, Humphrey, had just finished mopping the floor. Inmate Stock confirmed that there were no warning signs or plastic pylons on display intending to warn pedestrian traffic of the slick floor, but that there were two warning cones kept in a supply closet. Stock also testified that the warning pylons were available to any janitor by simply asking the security officer at the desk to unlock the supply closet.

The Respondent’s witness, Officer Shanks, was working at the vocational building at the security desk on the date of the Claimant’s injury on a temporary basis for the first time. Officer Shanks testified that she saw the Claimant come from outside through the exterior glass doors and enter the reception area through the interior doors where he fell. Officer Shanks recalled inmate Stock being present in the reception area at the time of the Claimant’s fall, but she did not see any mopping. Officer Shanks had no recollection of the weather condition that day. She did state that inmate Stock was not seated next to the desk but rather in a chair along the wall next to the interior doors, but she did not recall whether Stock was looking into the outside foyer at the time of the fall.

Officer Shanks testified that she did not recall if the floor had been washed that morning. She said she did not recall if the floor was wet at the time of the Claimant’s fall; and she did not see any “wet floor” signs the morning of the Claimant’s fall.

The Respondent’s Sergeant McQueen testified that although he was in the vocational building at the time of the Claimant’s fall, he was not in the reception area. He was called to the reception area where he found the Claimant injured. Sergeant McQueen testified that there was no dampness on the floor. Sergeant McQueen further testified that a safety cone had been placed in the outside foyer next to the “shakedown” table by the metal detector just inside the outside glass doors. Sergeant McQueen testified he had placed the cone in the foyer because he believed that when he came to work rain was falling. When it was raining the floor could become slick because of water on shoes. On cross-examination, Sergeant McQueen stated he was not sure what the weather was on the date of the Claimant’s fall, but to the best of his memory it was raining. Sergeant McQueen was sure there were no safety cones present in the reception area where the Claimant fell. Sergeant McQueen testified that he trains the janitors or “porters” to put out warning signs when the floors were slick or damp. Additionally, he stated inmate Humphrey was zealous at keeping the floor waxed, buffed and mopped perhaps more than needed, but sometimes forgot to put out the cones.

Inmate Humphrey, deposed as a witness by the Respondent, testified that on the date in question, he was working as a “porter” on the first floor of the vocational building, and that he had mopped the floor prior to the Claimant’s fall. Humphrey testified that the floor was still damp when the Claimant fell. Additionally, he testified that he had forgotten to put down safety cones at the time of the fall. Humphrey stated that somebody had spilled water at the location where the Claimant fell, and he had attempted to clean up the water with a mop. Humphrey recalled that Officer Shanks had spoken to him after the Claimant’s fall about not putting out any warning cones. Additionally, he stated that he did not know the Claimant and only talked to the Claimant once after the fall to joke with him.

With respect to the injury, the Claimant contended that there was immediate swelling in his ankle and severe discomfort. A cast was placed on his ankle the next afternoon by Dr. Frazier. The Claimant remained in a cast until October 25, 1986, after which he wore an orthopaedic shoe until November 10, 1986. The Claimant took Motrin for pain for two or three months after the fall, but the pain in his left leg was constant through February, 1987. DeWitt testified that he was still experiencing pain at the time of the hearing depending on changes of weather and the level of his activities, including how much time he had to spend on his feet each day. The Claimant testified that he still takes Motrin and Advil three or four times a month at an average cost of $10.00 per month. The Claimant stated that his activities after the broken ankle changed considerably and that he was not able to walk for exercise, lift weights or play basketball; and the Claimant generally has to watch what he does to avoid aggravating the ankle.

The deposition of Dr. Ralph Frazier, the treating physician, was made a part of the evidence. Dr. Frazier testified that he diagnosed a fractured left ankle. Dr. Frazier prescribed Motrin for the patient. Dr. Frazier removed the Claimant’s cast October 25,1986, and kept him in an orthopaedic shoe until November 10,1986. Dr. Frazier restricted the Claimant from performing his regular work assignments at the Correctional Center from October 1, 1986, through October 10, 1986. Dr. Frazier’s final diagnosis was an undisplaced fracture of the left lateral maleolus commonly known as a fractured ankle. When Dr. Frazier last saw the Claimant he expected a good prognosis.

This Court has repeatedly held that the State owes a duty to inmates of penal institutions to provide reasonably safe conditions. Reddock v. State (1978), 32 Ill. Ct. Cl. 611.

There is no doubt that the Claimant fell where he said he did and that he was traversing a slick floor at the time. All witnesses who spoke on the topics agreed that the Claimant was wearing hard soled shoes and that the floor in question was frequently waxed and buffed to a high shine. The Claimant had no choice but to wear the shoes and walk on the floor.

The Claimant contends that the risk of injury was increased because the floor was wet and he did not know about it, as no warning was given. The inmate porters, Stock and Humphrey, testified that the floor was wet, because Humphrey had mopped just before the fall. Officer Shanks, the guard on duty, who witnessed the fall testified that she could not recall the floor being mopped, had not seen inmate Humphrey and did not recall whether the floor was wet. Sergeant McQueen stated that there was no dampness on the floor.

The Respondent’s argument is that the Claimant entered the building from the outside. There had been rain that day and his shoes would have been wet. He would have seen the warning cone in the exterior foyer and, therefore, would have had warning.

Upon examination of the record and the recommendation of Commissioner Rath who heard the testimony of the Claimant and the guards, this Court finds that the Claimant fell and was injured as a direct and proximate result of moisture left by inmate Humphrey’s mopping an already slick floor. We find that the Claimant’s account of the incident is credible, and he would have had no warning that inmate Humphrey had mopped the floor when he was upstairs. Moisture on the highly polished floor would not have been readily evident and no cones were placed out. The Respondent presented some evidence supporting its theory, but a pass would have had to have been issued to the Claimant so he could leave the building. The issuing of a pass would have required official action by someone in the prison administration. No such testimony was introduced. Additionally, as Officer Shanks was new to the duty, she would not necessarily have known the inmates working at the site or the nature of their duties, so that she might instruct them. By giving no warning of the floor’s condition, the State violated its duty to provide reasonably safe conditions.

This Court finds that the Claimant’s testimony and the testimony of the Claimant’s physician establish that the Claimant had a routine non-displaced fractured ankle. The doctor believed the Claimant would have a good prognosis. The Claimant’s testimony was that he went through considerable discomfort and is likely to have weakness in the ankle for an indefinite period of time, which causes him to restrict some activities which he earlier enjoyed. The Claimant had not sought medical treatment for the ankle for some time prior to the hearing.

Though the Claimant stated that he was expending $10.00 per month on the average for medication at the time of the trial, there is no expert evidence that this could continue for an additional 28.2 years as claimed.

The injury itself and the prognosis is unremarkable and typical. The Claimant has incurred pain and suffering and may have some weakness in the ankle in the future, however expert medical testimony as to the permanency of the Claimant’s injury is lacking.

The Court finds damages in the amounts of $500.00 for medication, and $8,000.00 for pain and suffering and whatever permanent loss of function the Claimant has incurred. Therefore, it is ordered that the Claimant be paid $8,500.00, and that the motion of the Claimant to amend is therefore denied.


text:
    (No. 88-CC-1152
    Moore Business Systems, Claimant, v. The State of Illinois, Respondent.

      Order filed March 22, 1991.

    Pope & John, for Claimant.
    Roland W. Burris, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

Claimant filed a motion for summary judgment on May 9,1989. Therefore we entered an order granting the State until November 24, 1989, to respond. No response was filed. On July 3,1990, Claimant filed a request for a ruling on the motion for summary judgment. Still the State filed no response. Finally on January 7, 1991, Claimant filed another request for a ruling on its motion for summary judgment.

As of this date the State has filed no opposition to the motion for summary judgment which was filed on May 9,1989.

With no opposition from the State to the motion filed by Claimant, the court holds that there are no material issues of fact and that based upon the following uncontested facts, Claimant is entitled to an award as a matter of law:

1. On July 8,1986, Claimant, hereinafter referred to as “Moore,” submitted a written response to the Illinois Department of Employment Security’s (“IDES”) invitation to Bid-requisition #P-8429 for the printing and processing of the following forms: AA-49 (4249) Statement of Account; BEN-118R (4059) Statement of Amount Due for Benefits Paid; and CTS-0003 (4488) Notice of File Delinquent Contribution and Wage Reports.

2. On August 21, 1986, IDES advised Moore in writing that it had tentatively been awarded the contract under bid-requisition #P8429.

3. On October 29,1986, pursuant to its agreement to award Moore the contract, IDES submitted a purchase order (number PP3438) for the printing and processing of Forms AA-49, BEN 118R and CTS-0003. Moore’s bid response specified several prices depending upon the volume ordered and whether the purchaser selected a special window option. The price and terms selected by IDES were the lowest quantity of forms at the higher cost. IDES also selected the special window option.

4. The purchase order, however, contained a discrepancy between the quantity of forms ordered and the total contract price. The purchase order specified the lowest quantity of forms at the highest price or 200 thousand AA49 (4240) forms at $160.43 per thousand; 40 thousand BED118R (4059) forms at $271.39 per thousand and 300 thousand CTS-0003 (4488) forms at $204.65 per thousand for a total of $104,336.60. The total contract price according to the purchase order was $96,800.00. When Moore contacted IDES regarding the discrepancy IDES agreed that an error had been made and stated that the contract should be governed by the language in the purchase order which specified the lowest quantity at the highest price and the bid submitted by Moore.

5. On December 5, 1986, IDES submitted a data processing schedule for the period from February, 1987, through January, 1988.

6. Moore printed the necessary forms and blocked off the data processing time based upon the schedule provided by IDES on December 5, 1986.

7. On or about February 14, 1987, IDES began to input data for the processing of forms.

8. In June 1987, Nathan E. Tindall, Acting Manager, Procurement, for the Illinois Department of Employment Security terminated the contract with Moore and requested that Moore prepare an invoice for the remainder of the contract, suggesting that the contract has expired in June 1987, despite the fact that IDES provided a data processing schedule which called for services through January 1988.

9. Moore actually provided services for the period from February 14,1987, through September 15,1987.

10. On August 31, 1987, in response to that request Moore forwarded an invoice to IDES for the amount due under the remainder of the contract. Although Moore had both printed all of the forms necessary to perform the contract for the period from February 1987, through January 1988, and blocked off processing time for that entire period, the invoice submitted to IDES demanded payment for an amount less than what was due under the contract. The invoice submitted to IDES demanded payment only for the cost of the forms that had been printed and the balance of initial computer programming costs. The invoice does not seek payment for data processing costs, imaging costs, collation costs or distribution costs which would have been incurred had IDES not breached the contract.

11. The total amount due Moore less a discount for the cost of processing the forms remaining under the contract at the time of termination is $51,320.85.

12. On October 15,1987, IDES advised Moore that it was unable to process Moore’s claim under IDES’s 1987 appropriation. IDES provided Moore with a lapsed appropriation with the Illinois Court of Claims.

13. On November 2, 1987, Moore filed its claim with the Illinois Court of Claims.

14. IDES has admitted that it entered into a contract with Moore for the printing and processing of forms. IDES had further admitted that it terminated the contract and that it was unable to process the Moore’s claim for the amount due and owing under the contract under IDES’s 1987 appropriation.

15. Moore was at all times ready to fulfill its obligation under the terms of the contract.

16. IDES’s termination was without justification. At no time from June 1987 when IDES terminated the contract to the present time has IDES suggested that there were any problems with the product or services provided by Moore.

17. The sole basis for termination of the contract was IDES’s alleged claim that the contract expired on June 30,1987. Yet, the very schedule submitted by IDES to Moore for the processing of forms under Purchase Order PP3438 called for the processing of forms through January 1988.

18. Moore has made a demand upon IDES for payment for the amount due and owing under the contract which has been refused.

Accordingly, Claimant is awarded $51,320.85.


text:
    (No. 88-CC-1180
    La Salle National Bank, Claimant, v. The State of Illinois, Respondent.

      Order filed June 18, 1991.

    Rosenfeld, Rotenberg, Schwartzman, Hafron & Shapiro, for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This cause coming on to be heard on the motion of the parties for entry of an award and for dismissal of this matter, due notice having been given the parties hereto, and the Court being fully advised in the premises.

The Court finds that:

In relevant part, the motion at bar reads as follows:

“1. This matter is a claim arising out of a contract for the rental of real property and is brought pursuant to Section 8(b) of the Court of Claims Act. (Ill. Rev. Stat. 1989, ch. 37, par. 439.8(b).)
2. That on or about May 10, 1984, the Claimant and Respondent entered into a lease whereby the Respondent on behalf of the State of Illinois became the lessee of certain premises commonly referred to as 174 West Randolph Street, Chicago, Illinois. A copy of the lease has been filed in this matter.
3. The lease was to commence on August 1,1984, and expire on July 31, 1989. The lease contained a provision that the various obligations, covenants and duties of the Lessee hereunder, including the payment of rent is conditioned upon and subject to passage of a suitable appropriation to the Office of the Attorney General by the General Assembly of the State of Illinois and to the lawful availability to the Attorney General of sufficient funds for the payment of rent (par. 17.15).
4. That on July 23, 1987, respondent notified claimant that it would terminate the lease on August 31, 1987, citing paragraph 17.15 of the lease and 111. Rev. Stat. 1986, ch. 137, par. 145.
5. Claimant contends that this termination constituted a breach of lease agreement and claims damages for unpaid rental and other costs in the amount of $405,256,000 plus appropriate interest.
6. Respondent had filed responses denying liability as plead but acknowledging that certain sums due under the lease for taxes were appropriate but were not paid because funds had lapsed.
7. That through discovery and a review of the relevant documents and law, the parties believe that it is in their best interests to attempt an equitable resolution of the claim. Accordingly, the parties have filed this joint motion.
LAPSED FUNDING
8. The lease provided that respondent pay, as additional rent, a sum equal to the yearly tax bill minus $20,112.14.
9. Because the tax bills for property located in Cook County are not sent until the following calendar year, funds to pay said amounts for the prior fiscal year could not be payable and did lapse.
10. Therefore, the claimant and the respondent have determined that the following sums were due and payable under the lease as additional rent attributable tied to the real estate taxes.
Year Taxes
1986 69,053.85
1987 (prorated) 66,102.22
Adjustment Due
-20,112.14 48,941.71
-20,112.14 30,813.36 (prorated to 9/1/87)
TOTAL: $79,755.00 (rounded)
Said sums are due claimant pursuant to the terms of the lease and they should be paid.
CONTRACT CLAIM
11. Claimant alleges that they are due from Respondent under the terms of the lease $405,255.00 plus interest. The basis of this claim is alleged to be from unpaid rent, renovation costs, unpaid utility expenses, and unpaid and disputed real estate taxes for the period September 1,1987, through May 1,1988.
12. During the pendency of this litigation the parties have each conducted investigations of their respective positions and have undertaken lengthy discovery proceedings including the taking of depositions and review of public records. Additionally, the parties have each, with benefit of counsel, examined applicable case and statutory law.
13. During the pendency of this litigation, all parties have incurred substantial expense and sustained inconvenience. All parties recognize that if the litigation is to continue they will incur further expense, inconvenience and disruption. Further, each party realizes that there is a substantial risk to the claims and defenses relative to their respective positions.
14. The parties believe that a fair and equitable resolution of this matter is in their best interests and in the interests of the public.
15. Although each party believes that they have, in good faith, presented valid claims and defenses, they believe that further efforts in carrying forth their respective claims and defenses are both uneconomical and uncertain.
16. The petitioners have agreed to reduce the disputed portion of their claim to $157,117, in full and complete satisfaction of their claim against the State of Illinois.
17. The parties believe that this represents a fair and equitable resolution of the dispute.
18. That in the event this court approves this sum as a fair and equitable resolution and enters an award to claimant, the parties will execute and will file all documents necessary to conclude this litigation.
Wherefore, Claimant and Respondent pray that this court enter an order granting an award to claimant as follows and dismissing this case.
A. For the liability of Respondent to Claimant for tax amounts unable to be paid due to a lapse in the applicable appropriation, the sum of $79,755.00.
R. For resolution of Claimant’s claim for unpaid rent, utility expenses, renovations and real estate taxes the sum of $157,117.00.
C. That this matter be dismissed.”

Prior to this settlement being tendered, the Court heard oral arguments on the Respondent’s Motion for Summary Judgment and the Claimant’s Cross-Motion for Summary Judgment. During the course of that proceeding, the Court inquired as to whether an attempt to settle this matter had been made. Although the Court did not urge or instigate a settlement discussion, we did indicate that we would consider any reasonable settlement. (Tr., pp. 29-34.) The settlement recited above is now before us for approval.

This Court is not bound by such agreements, but does not seek to interpose a controversy where none appears to exist. However, based on the record before us we are constrained to not grant the parties’ motion in its entirety.

In breach of contract claims whether the claims are before us on their merits or for approval of a settlement, it is this Court’s policy to limit awards so as not to exceed the amount of funds, appropriated and lapsed, with which payment could have been made. To do otherwise, i.e. to award money for debt incurred beyond the sum allotted by the General Assembly, would be tantamount to making a deficiency appropriation. The appropriation of State funds for governmental operations is the constitutional prerogative of the General Assembly. It is this Court’s duty to uphold that process and advise the General Assembly. (Thorlief Larsen & Son, Inc. v. State (1990), 42 Ct. Cl. 195; Bojko v. State (1988), 41 Ill. Ct. Cl. 202; J.F. Inc. v. State (1988), 41 Ill. Ct. Cl. 5; Loewenberg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) In the case at bar, an insufficient amount of money lapsed to cover the entire settlement.

The case at bar involves two types of damages claimed. The first element of damages claimed is described as a lapsed appropriation claim based on a property tax escalation clause in the lease. The balance of the claim relates to damages otherwise caused by the alleged breach of the lease contract.

As for the tax escalation, clause, it appears to be the parties’ position (see paragraphs 8, 9, and 10 of their motion) that because property tax bills are not sent out until the year after they have accrued they could not be paid due to the lapsing of the funds appropriated for such payments. As the Court indicated at the oral argument (Tr. 40), this position may not be tenable. The contract did not obligate the Respondent to pay until the tax bill was sent out during the year after. Until the bill was sent out neither party could know what it would be. The bill could not be paid until the following year. We hold that such obligations are current obligations of the fiscal year in which they become due. This position is consistent with the practice of the Office of the State Comptroller. The Court also notes that such clauses are common in many State leases and to hold otherwise could lead to all such lessors filing claims.

The property taxes relating to 1986 were obligations of fiscal year 1987. The parties agree that $48,941.71 is due and owing. The record indicates that the Office of the Attorney General lapsed $57,959.00 that year. Of said sum, only $15,265.00 lapsed in the Contractual Services Line Item Appropriation out of which this bill could have been paid and that prior awards by this Court have used $11,497.00 of that money leaving only $3,769.00 available. No information was put into the record concerning which line item appropriations the other money lapsed in so we cannot consider possible transferability. (No fiscal information for fiscal year 1986 was put in the record so, even if relevant, we could not enter an award.)

As for the 1987 taxes payable in fiscal year 1988, the parties agreed that $30,813.36 is due and owing. The record indicates that the Office of the Attorney General lapsed on $12,785.00 in the contractual services money that year of which $1,000.00 has already been expended by previous Court of Claims action, leaving only $11,785.00 available for an award. Again, the record contains no information about potentially transferable lapsed funds.

It is axiomatic that this Court cannot make an award in a lapsed appropriation claim in excess of the amount of appropriations which lapsed and we are constrained to approve an award in the amount of $15,554.00 on this aspect of the claim.

The balance of the case relates to damages otherwise suffered by the alleged breach of the contract: unpaid rent, renovation costs, unpaid utility expenses, and unpaid and disputed real estate taxes. For this the Claimant sought $405,255.00 and interest. The parties have agreed on payment of $157,117.00 in satisfaction of this portion of the claim.

As previously indicated, the Court is constrained to disapprove that portion of the setdement which is in excess of the appropriations lapsed. Although the Court cannot make the agreed award, the General Assembly may. For the purpose of possible consideration of this case by the General Assembly, we find that but for the insufficiency of lapsed funds we would have approved the settlement and awarded the Claimant $236,872.00. Our decision shall in no way be interpreted as a reflection of our views on the merits of either party’s legal position taken prior to the settlement.

For the reasons stated hereinabove, it is hereby ordered that the Claimant be, and hereby is, awarded $15,554.00. If the General Assembly does consider this matter and acts to approve additional compensation, an additional sum of $221,318.00, as the parties agreed, is the Court’s finding as to an appropriate amount.


text:
    (No. 88-CC-1231
    Allen N. Ondes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 29, 1991.

    William J. Billeaud, for Claimant.

      Roland W. Burris, Attorney General (John Gilbert, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This is a claim for personal injuries brought pursuant to section 8(d) of the Court of Claims Act. (Ill. Rev. Stat., ch. 37, par. 439.8.) Claimant alleges that he was injured as a result of Respondent’s negligent failure to warn of a “defect or weakness in a T-bar light fixture located in the Bubble Gym of the S.I.U. Edwardsville campus.” On December 16,1986, said T-bar light fixture broke and fell upon Claimant when Claimant attempted to “stretch” himself by hanging from the apparatus.

The facts surrounding this accident are not seriously in dispute. The Claimant, Allen Ondes, was, at the date of the accident, a student at Southern Illinois University — Edwardsville (hereinafter SIU — E). As a student, Claimant was entitled to use an athletic facility commonly known as the “Bubble Gym.” The bubble gym was a large structure (enclosing at least two basketball courts) made mostly of fabric, and supported, or held up, by air.

The inside of the bubble gym was illuminated by lights affixed, to “T-bars.” These T-bars were, in turn, affixed to aluminum poles which were secured to the ground via concrete boxes. Several of these light fixtures were placed on each side of the gymnasium. Testimony indicated the light fixture which injured Mr. Ondes was anywhere between 8M to 9M feet tall, with the vertical pole being from 3M to 4 inches in diameter. It is also undisputed that the light fixture was at least partially covered with a rubber protective coating and was a “massive-looking” structure.

On the date of the accident, Mr. Ondes entered the bubble gym, as he often did during his 3M years at SIU— E, to play a “pick-up” game of basketball. Claimant testified that he always stretched before playing and that on the date in question he decided to “dead hang” (for the first time) from one of the light fixtures and thereby stretch his upper body. When asked whether he had ever observed others stretch in a similar fashion from these light poles, Claimant testified that he had seen it done approximately a dozen times. Claimant did not in any way test the light pole to see if it would hold his weight. After jumping and grabbing the T-bar cross piece, the vertical pole broke near its base, whereupon Mr. Ondes landed on his back and the crossbar fell on his face. Suffice to say, Mr. Ondes received severe injuries to his teeth and mouth regions and (although disputed), an injury to the middle part of his spine.

Evidence was also received as to the propensity of these light poles to break. Counsel for the Claimant introduced testimony of a Mr. Hann, who, just two weeks before the Ondes incident, was injured when a light pole broke (again, near the base) while he was attempting to stretch out in the same manner as Mr. Ondes. Additionally, a Mr. Ufert, supervisor of SIU— E’s Electrical Department, and a Mr. Menoni, supervisor of SIU — E’s Crafts Department, testified that on approximately six other occasions these light fixtures had to be repaired due to breaks near the base. At no time prior to Claimant’s accident was he told of the propensity of these light poles to break or warned not to stretch or hang from the horizontal cross-bar.

In order for Claimant to state a cause of action for negligence, he must allege facts establishing the existence of a duty, a breach of that duty, and an injury which proximately resulted from the breach.

Whether a legal duty exists is a question of law which is determined by the Court. Factors which are relevant to the existence of a legal duty include whether the injury was reasonably foreseeable, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon defendant. Ward v. K-Mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.

When dealing with the liability of possessors of land as to invitees and licensees, Illinois now generally follows Sections 343 and 343A of the Restatement (2d) of Torts with respect to both invitees and licensees (after having been modified somewhat by the Premises Liability Act (Ill. Rev. Stat., ch. 80, sec. 301, et seq.)). See Ward at 227.

Section 304 of the Illinois Premises Liability Act reads as follows:

“The distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished. The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.”

Section 343 and 343A of the Restatement (2d) of Torts states at 343:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.”
At 343A, “(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance that the harm should be anticipated.”

Respondent in its brief argues that it never held the light fixtures out to be anything other than for lighting purposes. This, however, is clearly contradicted by the evidence. There is testimony to the effect that the Respondent, on occasion, used the light fixtures to hold volleyball nets. Additionally, there is testimony that the light fixtures did, indeed, look like chin up bars. When taking the above into account, coupled with the testimony by Mr. Ondes and Mr. Hann that people often hung or stretched from the lights (indeed, Mr. Hann testified that he even saw a person sitting on top of one of the light poles), it becomes apparent that the light poles could be and were used for other purposes and that Respondent at least acquiesced in these cases.

When dealing with the issue of notice, both as to the possibility that people were hanging from the light poles and that the poles might have a defect or propensity to break, the Claimant must prevail. First, Respondent’s employees had to fix light poles on at least seven different occasions prior to Mr. Ondes’ accident. All seven light poles were broken at or near the same place, the base. Secondly, there was an investigation conducted with respect to Mr. Hann’s accident. If Mr. Hann’s accident did not put the Respondent on actual notice of the poles’ breaking propensity and/or the possibility of other uses, it definitely put it on constructive notice. Lastly, it seems somewhat odd that the employees of Respondent, whose charge it was to care for the bubble gym facility on a daily basis, were unaware of the tendency of people to stretch or hang from the light poles, especially when two students who were not at the facility on a daily basis testified that they often saw such happenings going on.

Another argument that Respondent raises is to the effect that it cannot be expected to guard against harm from events which are not reasonably to be anticipated or are so unlikely to occur that the risk, although recognizable, would be commonly disregarded (see Beal v. Kuptchian (1987), 164 Ill. App. 3d 191, 517 N.E.2d 712). Although the above is true, in the case at bar it would be unreasonable of Respondent not to guard against such a danger. To start with, the light poles’ propensities were not open and obvious. These propensities are not something that a student coming in to play basketball could easily detect. It has been established that the area most likely to break (e.g. the base of the pole) was covered with a rubber protective coating. There was also testimony that the light fixtures looked “massive.” Additionally, as stated above, Respondent had at least constructive knowledge that the poles would break under pressure and that people were on occasion hanging from them.

As the propensities of these poles are not risks that would be (or should be) commonly disregarded, Respondent breached its duty by not having taken preventive measures. Respondent counters by pointing out that the State of Illinois is not an insurer of the safety of persons and that it has met its standard of care of reasonableness. In this case, however, reasonableness would have required some notice or warning be given or posted. Such a notice would not have elevated the State of Illinois to a general insurer. At most, any burden placed upon the Respondent would have amounted to the posting of a simple warning on each light fixture. To say the least, such a posting would not have placed much of a burden on Respondent.

To conclude, this Court finds Respondent had a duty to warn, breached that duty, and the injury was the proximate result of that breach.

Respondent next argues that even if it is negligent Claimant’s negligence amounts to more than 50% of the combined negligence of the parties, thereby barring the Claimant from a recovery, pursuant to Chapter 110, Section 2 — 1116 of the Illinois Revised Statutes. Although it is agreed that Claimant is contributorily negligent, he is not more than 40% negligent. As Respondent pointed out in its brief, Claimant did fail to test in any way the ability of the light fixture to hold his weight. Additionally, Claimant had some training as a machinist prior to the accident, which should have alerted him to the possibility that the pole might break. These facts, although clearly making Claimant contributorily negligent, do not, however, add up to the 50% figure as Respondent urges. As will be shown later, Claimant’s award should be reduced accordingly.

Lastly, Respondent argues that Claimant is not entitled to any damages with respect to an alleged back injury. Respondent based this argument on the testimony of a Dr. Frederick. Dr. Frederick basically stated that, upon his examination of Claimant, he was unable to find any residuals of a neck or back injury. Additionally, Respondent points out that if Claimant did receive an injury to his back a portion of those damages should be attributable to a subsequent car accident in which Claimant was involved.

Although Dr. Frederick is a recognized expert in his field, his examination did occur some 2% years after Claimant’s injury. In addition, the examination was at the request of, and paid for by, the Respondent. Because Claimant’s doctor’s examination was closer in time to the accident, and because the injury may have healed to the point where it escaped Dr. Frederick’s eye, Claimant is found to prevail on this issue.

As far as the subsequent car accident is concerned, Claimant has not asked for any special damages which may have been incurred after the date of the said accident.

As stated above, Claimant has received severe and permanent injuries to his teeth and mouth regions. Some of the injuries and treatments include the loss of 4 front teeth, soft tissue trauma, severe injury to several other teeth (which later required root canals), the stabilization of various teeth, and the placement of an eight-tooth bridge. The total special damages incurred as a result of the mouth/teeth injury amount to $7,286.34. Evidence was also received as to future expenses with regard to the above injury; said future dental expenses total $3,960.00. As far as the neck/back injury is concerned, Claimant prays for $1,520.00 in special damages.

The Court finds that the total value of this claim is $30,000.00. This should be reduced by 30%, the proportion of fault which we attribute to the Claimant.

Wherefore, it is hereby ordered that the Claimant be, and hereby is, awarded the sum of $21,000.00.


author: Raucci, J.

text:
    (No. 88-CC-1454
    Edward Hospital, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 2, 1990.

    Grabowski & Clutts (Mary D. Aversano, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Arla Rosenthal, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This cause comes before us on cross-motions for summary judgment. On July 9, 1985, Leroy Weeks was arrested by the Illinois State Police and charged with a number of offenses including theft of a vehicle, being a fugitive from justice — escape, unlawful use of a weapon, fleeing or attempting to elude a police officer, and various traffic offenses. In the course of the commission of the offenses, Weeks was shot by a State trooper. Weeks was arrested by Sergeant Ryan of the State Police and Officer Edwards of the Romeoville Police Department. Weeks was taken to Edward Hospital in Naperville, Illinois. At issue in this case is whether the State is liable for $7,875.97 in unpaid expenses for the treatment of Weeks.

The Sheriff’s Act (Ill. Rev. Stat. 1985, ch. 125, par. 216) in effect at the time provided:

“An arresting authority shall be responsible for any incurred medical expenses relating to the arrestee until such time as the arrestee is placed in the custody of the sheriff. However, the arresting authority shall not be so responsible if the arrest was made pursuant to a request by the sheriff. For the purposes of this Section, arresting authority shall have the meaning ascribed to it in Section 24 of An Act to revise the law in relation to jails and jailers, approved March 3,1874, as amended.”

This language was added by Public Act 83 — 370, approved September 14, 1983, effective January 1, 1984. The same Act amended Section 24 of “An Act to revise the law in relation to jails and jailers.” (Ill. Rev. Stat. 1985, ch. 75, par. 24.) “Arresting authority” was defined as

“a unit of local government, other than a county, which employs peace officers and whose peace officers have made the arrest of a person.” (Emphasis ours.)

It is thus undeniably clear that the legislature intended “arresting authority” to be limited to “a unit of local government other than a county,”. Illinois Revised Statutes (1985), ch. 1, par. 1029 defines “unit of local government” by reference to Article VII of the 1970 Constitution of the State of Illinois.

Article VII, Section 1 of the 1970 Constitution defines “units of local government” as

“counties, municipalities, townships, special districts, and units, designated as units of local government by law, which exercise limited governmental powers or powers in respect to limited governmental subjects, but does not include school districts.”

The State of Illinois is not a unit of local government.

Therefore Claimant cannot recover based on this statute, and no other theory of recovery has been asserted.

The Claimant’s motion for summary judgment should be denied and the Respondent’s motion for summary judgment should be granted.

It is therefore ordered, adjudged and decreed that the claim is dismissed and forever barred.


text:
    (No. 88-CC-1963
    Victor Rosario, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 9, 1991.

    Neil Kauffman, for Claimant.
    Neil F. Hartigan, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This claim has been brought by Victor Rosario, an inmate of the Joliet Correctional Center at the time of the injury. The Claimant seeks damages for injuries sustained by him while playing basketball on a prison gym floor on March 10,1987. The Claimant alleges that the gym floor was made of wooden strips; and that his foot went through the floor to a depth of above four or five inches, causing him to injure his right ankle and to break a bone in his upper right instep.

The State has a duty to inmates of penal institutions to maintain reasonably safe conditions. (Reddock v. State (1978), 32 Ill. Ct. Cl. 611.) However, the existence of a defect is not in itself negligence on the part of the State. (Palmer v. State (1964), 25 Ill. Ct. Cl. 1.) The State must be shown to have had actual or constructive knowledge of the defect.

Mr. Bruce Berger, executive assistant to the Warden at the Joliet Correctional Center, testified for the State. Mr. Berger had been a correctional leisure specialist in charge of recreational facilities at the institution. Mr. Berger stated that he had played on the floor in question every day for a number of years and that the floor was used for varsity basketball games and running programs. He further testified that some of the rubber had failed to bond to the concrete floor; therefore, some small patches to a depth of less than 5/8 of an inch had been cut out exposing the concrete. He had never seen a situation in which the floor had caused falling or injury and he believed the floor to be safe.

The Claimant’s testimony that the floor was wooden and that his foot went through it to a depth of four or five inches identified the defect as weak wooden flooring. The State’s evidence directly contradicts the Claimant’s description of the floor but did identify a possible defect, the cut-out places on the floor. No evidence was introduced to support the Claimant’s testimony as to the nature of the defect, if any, which caused his injury.

The Claimant is required to prove his claim, that is, among other things to identify the defect that caused his injury in order to distinguish it from an ordinary twisting and failing of the ankle that often occurs in basketball games. This Court finds that the Claimant has not proven by a preponderance of the evidence that the injury was caused by the defect he claimed or any other defect. It is therefore, ordered that this claim be denied.


text:
    (No. 88-CC-2463
    Leroy Pughsley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 22, 1991.

    Leroy Pughsley, pro se, for Claimant.

      Roland W. Burris, Attorney General (William Conroy, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This is a claim for $500.00 which allegedly resulted from an electrical power failure which destroyed the Claimant’s television set. The Claimant was an inmate with the Illinois Department of Corrections. He contended that on the day following the power failure, he took the television set to the vocational school at the prison for possible repair. He further alleges that it was determined that the cost of repair would exceed the value of the television set.

Claimant also seeks compensation because he was not given a “state loan television set” to replace his damaged set.

At the hearing before a Commissioner of this court, Claimant testified that the incident in question occurred while he was housed in the segregation unit of the North cell house at Menard Penitentiary. At approximately 8:00 p.m. on the day questioned, there was “an electrical power surge” caused by another inmate several cells away from Claimant’s cell. The Departmental Report filed by the Respondent in this case indicates that the power surge was caused as a result of another inmate tampering with an electrical outlet. Thus, the damage to the Claimant’s property appears to have occurred as a result of the wrongful act of another inmate. It was not the fault of the Respondent, or its agents.

The Respondent is not an insurer of the private property of inmates. There is absolutely no evidence presented by the Claimant to indicate that the Respondent, or its agents, failed to exercise due care with respect to the property of the Claimant. There is no evidence which shows that the Respondent’s agents were in any way negligent so as to cause or allow the acts of another inmate to damage the Claimant’s personal property.

We therefore deny this claim.


text:
    (Nos. 88-CC-2783 through 88-CC-3033 cons.
    Chang S. Kim, M.D., Dominick S. Renga, M.D., and Michael R. Treister, M.D., for Treister Orthopaedic Services, Ltd., Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 29, 1991.

    William L. Silverman, for Claimants.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION AND JUDGMENT

Raucci, J.

The 251 captioned, vendor-payment actions are before the Court on Respondent’s motions for summary judgment as to each of them, pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005), and for dismissal of 235 of said actions pursuant to section 2 — 619, Id., section 790.90 of the Court of Claims Regulations (74 Ill. Admin. Code §790.90), section 22(b) of the Court of Claims Act (or “CCA,” Ill. Rev. Stat. 1987, ch. 37, par. 439.22(b)), and section 11 — 13 of the Public Aid Code (or “PAC,” ch. 23, Id.). The Claimant physicians having received notice of said motions, the Court finds as follows:

Statutory Time Bar. Respondent asserts that Claimants’ causes of action, in 235 of these actions (each presenting charges for a single patient account) and additional, partial accounts in instances involving multiple dates of service, had previously been barred from prosecution as of March 4, 1988, the date on which they were filed with this Court. The State contends that the Court lacks jurisdiction to grant any relief as to such accounts. The actions and related accounts which Respondent challenges on this ground include: those seeking payment for services rendered on and before September 3, 1986, i.e., services rendered more than eighteen months prior to Claimants’ commencement of these actions (see PAC par. 11 — 13, subpar. (2)); as well as those actions and accounts Claimants’ initial DPA-form 2360 invoices for which IDPA had “refus[ed] to pay * * e in whole or in part” (Id., subpar. (1)) in notices (IDPA voucher-responses or remittance advices) issued more than one year prior to March 4, 1988. The related services span the period from March 1982 (in No. 88-CC-2789) through November and December 1986 (Nos. 88-CC-2783 and 88-CC-2969), Claimants’ initial invoices for the latter two accounts having been refused payment by IDPA notices issued on February 4,1987.

This Court has consistently taken the position that it lacks jurisdiction to consider the merits of those vendor-payment claims which were not commenced within the time periods prescribed by section 22(b) of the CCA and section 11 — 13 of the PAC. Sitka v. State (1977), 31 Ill. Ct. Cl. 548; Weissman v. State (1978), 32 Ill. Ct. Cl. 150; Midstate Anesthesiologists v. State, No. 82-CC-942 (Order filed Mar. 1, 1982); Northwestern Memorial Hospital v. State (1983), 35 Ill. Ct. Cl. 871; Simon v. State (1987) , 40 Ill. Ct. Cl. 246; Krakora v. State (1987), 40 Ill. Ct. Cl. 233; Memorial Medical Center v. State (1988), 40 Ill. Ct. Cl. 73; Franciscan Medical Center v. State, Nos. 84-CC-0118, et al.; Riverside Medical Center v. State, No. 87-CC-0780; Pinckneyville Medical Group v. State (1988) , 41 Ill. Ct. Cl. 176; Pilapil v. State (1989), 41 Ill. Ct. Cl. 223; Sarah Bush Lincoln Health Center v. State (1990), 42 Ill. Ct. Cl. 303; and Gupta v. State (1990), 42 Ill. Ct. Cl. 269. Neither Respondent nor this Court has authority to .waive the limitation period or other limit on the Court’s jurisdiction, as established by the General Assembly. Illinois Bell Telephone Co. v. State (1981), 35 Ill. Ct. Cl. 345; Potter & Struebin v. State (1987), 39 Ill. Ct. Cl. 197; and St. John's Hospital v. State, No. 86-CC-2055.

Having reviewed the facts (dates of Claimants’ services and of IDPA’s payment-refusal notices relative to certain of said services) as outlined in Claimant’s complaints and IDPA’s consolidated report herein, the Court concludes that each of Claimants’ causes as to the claims and portions of claims specified in said report had in fact been barred by statute, prior to Claimants’ filing of the related actions as discussed above. Accordingly, the Court has no authority to award Claimants any relief as to said claims.

Multiple Surgical Procedures and Complex Surgery. Claimant Treister submitted charges to IDPA for three separate procedure codes, viz., PCs 29881 (considered by IDPA to be the “major procedure”), 29875 and 29879, all relating to arthroscopic knee surgery performed on patient Brito (No. 88-CC-2796), at the same operative session on November 17, 1986. Applicable Department policy is explained in IDPA’s MAP Handbook For Physicians:

“The procedure code for the major [surgical] procedure is to be used [reported on the invoice] when multiple procedures are performed e ° When multiple surgical procedures are performed through the same incision, payment will be based on the major procedure.” (Id., Topic A-262.2; emphasis supplied.)

Following this policy, IDPA paid Claimant for PC 29881, the major procedure; and refused payment for the two related procedures. The Handbook also provides:

“When a charge [invoice to IDPA] for surgery is greater than the physician’s usual and customary fee for the procedure, based upon the operation being seriously complicated by factors not usually present, the physician is to submit [with his or her invoice] clinical data adequate to support [the extraordinary charge for] the claim.” (Id., emphasis supplied.)

As Claimant’s invoice was accompanied only by a pathology report (insufficient to support his charges for the two rejected procedure codes). IDPA’s payment-refusal notice advised Claimant that “Additional Information [was] Required,” e.g., narrative “clinical data” descriptive of the surgery which would be “adequate to support” and justify his separate charges for all three procedures.

Claimant has not established that IDPA received his rebill-invoice of these charges by November 17, 1987, i.e., within the one year period prescribed by IDPA Rule 140.20 (89 Ill. Admin. Code §140.20) and by Federal Medicaid regulation (§447.45(d) of Title 42, Code of Federal Regulations). See this Court’s decisions in Pilapil v. State and Gupta v. State, both cited supra. See also, Methodist Medical Center v. State (1986), 38 Ill. Ct. Cl. 208; Memorial Medical Center v. State; Franciscan Medical Center v. State; Riverside Medical Center v. State; and Sarah Bush Lincoln Health Center v. State, all cited supra.

The result of this process is that Claimant Treister was paid for the major procedure performed on patient Brito. He also had the time-limited opportunity to rebill either or both of the other procedures with whatever documented clinical data he might have had available to show that this surgery was “seriously complicated by factors not usually present” and which might thus have justified a vendor-payment in addition to that made for the major procedure. Such “additional information” necessary to process the rebill (§447.45(b) of 42 C.F.R.), properly documented, would clearly have been an essential part of a “clean claim” (Id.) rebill-invoice of Claimant’s charges for these two procedures. Given Claimant’s failure to show that a “clean claim” rebill was received by IDPA prior to the regulatory deadline, we conclude, in accordance with subsection (e) of IDPA Rule 140.20, that the Department has no payment liability for the procedures represented by codes 29875 and 29879. Ryan v. State (1990), 43 Ill. Ct. Cl. 213.

The claim in No. 88-CC-3002 consists of Claimant Treister’s charge for applying a cast to patient Torres following Claimant’s manipulation surgical treatment of a bone fracture. As IDPA had paid Claimant for the separately-invoiced surgical treatment, we find that such payment covered the entire surgical-service package, including application of the cast. See Treister & Wilcox v. State (1990), 42 Ill. Ct. Cl. 185.

Prepaid Health Service-Plan Coverage and Access-Restrictions To Health Care. Several of Claimants’ invoices (e.g., in Nos. 88-CC-2969, 88-CC-2970 and 88-CC-3007) were refused payment by IDPA because the services invoiced were covered by prepaid health care plans (contracted with HMOs, or health maintenance organizations), which coverage IDPA had purchased for the patient-recipients served and was in force when Claimants’ services were rendered. Section 5 — 11 of the PAC authorizes the Department’s State-financed provision of such coverage. The medical-eligibility card (MEC), issued by IDPA to the HMO-enrolled recipient, identifies the HMO in which the recipient is enrolled, so that the medical vendor who treats that recipient may bill his or her services directly to the HMO for payment. Handbook Topics 131 and 133.

“In no instance will [IDPA] reimburse a [vendor] when the service provided a recipient is one which the HMO has contracted to pay.” (Id., Topic 133)

Thus, Claimants’ recourse in these matters was to bill his services to the HMO for payment, rather than to IDPA.

The treatment involved in No. 88-CC-3007 also required the prior, written authorization of the recipient’s designated primary care physician (PCP), before being rendered; and Claimant Renga was obliged to submit the PCP’s authorization for such treatment (on a DPA form 1662), when billing his treatment charges for payment. These access-restriction requirements had been imposed as a result of the recipient-patient’s history of utilizing medical services “at a frequency or amount not medically necessary” as gauged by established standards. (§1396n(a)(2) of 42 U.S.C.), in accordance with applicable regulations (§431.54(e) of 42 C.F.R.; and §120.80 of 89 111. Admin. Code). The PCP’s name was listed on the MECs which IDPA had issued to the recipient; and vendors were advised (Handbook Topics 131.18 and 134) that the PCP’s written (DPA 1662) authorization must be obtained before rendering non-emergency care to the recipient. Claimant’s compliance, by submitting the PCP’s authorization with his bill or invoice, was essential to the Department’s efforts to prevent overutilization of services under its Recipient Restriction Program, or RRP (Id., Topic 134).

Tardy Invoice Submittal. In the remaining fifteen actions, Claimants Renga and Treister are seeking vendor-payments for the following accounts:

Patient Account
88-CC-2786 — Amador
88-CC-2796 — Brito 88-CC-2808 — Williams 88-CC-2825 — Colon 88-CC-2844 — Dominowski 88-CC-2873 — Granada 88-CC-2886 — Howard 88-CC-2910 — Lozada 88-CC-2933 — Olivo 88-CC-2944 — Perez 88-CC-2956 — Rasho 88-CC-2963 — Rivera 88-CC-2978 — Ruiz 88-CC-3006 — Vazquez 88-CC-3016 — Velez
Date(s) Of Service_
September 10 & 25,1986
November 11,1986 September 16,1986 September 16(26?), 1986 October 24 & 28,1986 September 13,1986 September 23,1986 January 12,1987 October 11,1986 December 16,1986 November 20,1986 November 15,1986 November 18,1986 November 20,1986 March 17,1987
Date Of Initial DPA-form 2360 Invoice(s), Alleged by Claimants
3 invoices, all dtd.
“09/17/86” “01/09/87” “09/16/86” “09/17/86” “01/09/87” “09/17/86” “11/17/86” “03/18/87” “11/17/86" “02/18/87” “01/01/86” “01/08/87” “01/08/87” “02/18/87" “03/19/85”

Claimants’ pleadings fail to establish that any of these 17 invoices was received by IDPA within the time prescribed by IDPA Rule 140.20 and 42 C.F.R. section 447.45(d). Yet, with only one exception (patient Velez’s services in No. 88-CC-3016), all of said services had been rendered more than one year prior to March 4, 1988, when these Court actions were filed.

In each instance, the Claimant’s allegations suggest that he had timely prepared his form 2360 invoices for submittal to IDPA. IDPA policy provides that, except for vendor-payment claims submitted on unapproved forms or otherwise facially unacceptable for automated processing,

“all claims [vendor invoices] received are assigned a Document Control Number, microfilmed and computer processed [for assessment of payment entitlement]. The action taken on each [invoice] so processed is reported to the provider [vendor] on Form DPA 194-M-l, Remittance Advice [or voucher-response](MAP Handbooks, Topic 144.)

Thus, if IDPA had received any of these 17 invoices, then the Claimant should be able to produce or identify IDPA’s voucher-response to that invoice for the purpose of pleading IDPA’s “action taken” in respect to it, as required by Rule 5(A)(3)(b) of the Court of Claims Regulations (74 111. Admin. Code §790.50(a)(3) (B)). See Treister & Wilcox v. State; and Franciscan Medical Center v. State, both cited supra. The Claimant should be able to produce any such voucher, because State and Federal Medicaid regulations obligate vendors to maintain and retain all of their business and professional records relating to their services rendered to IDPA recipients. 89 111. Admin. Code §140.28; 42 C.F.R. §§431.17 and 431.107(b); and see the MAP Handbook For Physicians, Topics 112, A-205, A-230 and A-240.

If any invoice was transmitted but not received by IDPA, the Claimant would have been alerted to that fact when, after 60 days, he had not received IDPA’s voucher acknowledging such invoice. In such instances, he is urged (Handbook topic 144) promptly to submit either a written inquiry or a replacement invoice. Simon v. State (1987), 40 Ill. Ct. Cl. 246, 250-51; and Franciscan Medical Center v. State, cited supra. Here, neither Claimant alleges that he had taken such action as to any of these 15 accounts.

Also noted is the fact that, were Respondent now to pay Claimant for any of said recipients’ care, the payment would not qualify for Federal Medicaid matching funds, given Claimants’ failures to invoice their related charges to IDPA within the time prescribed by 42 C.F.R., section 447.45. This Court has previously reviewed the likely implications for the funding of IDPA’s MAP expenses, if we were to disregard Federal regulatory requirements in such matters; see, as examples, Memorial Medical Center, Riverside Medical Center and Pinckneyville Medical Group, all cited supra.

It is therefore hereby ordered and adjudged that Respondent’s Motion For Summary Judgment is granted as to each of these 251 claims, Claimants Kim’s, Renga’s and Treister’s causes as to the accounts presented in 235 of such claims (and portions of additional claims) having previously been barred by statute; Claimant Treister having been paid in full for patient Brito’s November 17, 1986 services (No. 88-CC-2796) and patient Torres’ November 7, 1986 services (No. 88-CC-3002) to the extent they had been timely and properly invoiced; and Claimant Renga’s and Treister’s pleadings having failed to establish that their charges in the 15 remaining actions had been invoiced to IDPA in the manner and within the time prescribed by State and Federal regulatory requirements. Judgment on all issues presented is entered against Claimants and in favor of Respondent; and each of said claims is dismissed.


author: Patchett, J. Patchett, J.

text:
    (No. 88-CC-4412
    Riley Russell, III, Claimant, v. The State of Illinois, Respondent.

      Order filed November 28, 1989.

      Order on motion for Rehearing filed October 1, 1990.

    Riley Russell, III, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

The Claimant herein has filed a claim in tort against the State of Illinois seeking $5,000.00 in damages for being denied medical treatment while a resident of the Illinois Department of Corrections at the Pontiac Correctional Center. On February 5, 1988, the Claimant alleges that he experienced severe stomach pains and was denied medical treatment. He claims that he therefore experienced continued pain and suffering. This case was tried before a Commissioner of this Court on December 21,1988.

After becoming ill on February 5, 1988, the Claimant alleges that he asked a sergeant to take him to the hospital. He claims he was having vomiting and diarrhea. Allegedly the sergeant returned and said that there was no room in the hospital for the Claimant.

The Claimant alleges that he then requested a paramedic, but none was provided. The Claimant further alleges that on the next morning, a paramedic came by to see him, but told him that he could not get into the hospital for at least 14 days. Mr. Russell claims he went to work on Monday and Tuesday, but states that he was continuing to experience pain. On Tuesday, he claims he asked an officer to request medical attention. The Claimant saw a doctor during the next couple of days and that he suspected kidney trouble and took a blood test. The Claimant alleges that the blood test results were never revealed to him.

Basically, the Claimant seeks $5,000.00 because he is afraid that if he is ever sick again, he will not receive adequate medical attention in the future. The Department of Corrections filed a Departmental Report indicating the Claimant did not continue to complain of pain and suffering after the first occurrence. The Department of Corrections claims that the Claimant worked all the time, made no further complaints, and did not show any further signs of disability. The Department of Corrections records show that the Claimant was indeed seen by a physician on February 15, 1988, and was found to have diarrhea with a stomach pain and cold. Medication was ordered for the Claimant.

After February 15, 1988, the Claimant had five further medical appointments. None of the complaints at those appointments were in any way related to the stomach illness complained of in the claim. The Claimant’s medical records do indicate some incidents of diarrhea prior to February 1988, but show no temporary or permanent disability as a result of the alleged failure to treat diarrhea on this occasion.

The State does owe a duty to prison inmates to provide reasonable medical care. (DeWeese v. State (1973), 28 Ill. Ct. Cl. 230; Williams v. State (1978), 32 Ill. Ct. Cl. 463.) However, the Claimant has not shown that the State failed to provide reasonable medical care for him. Assuming that the Claimant was indeed ill on February 5, 1988, with stomach pain and diarrhea, he presented no expert testimony concerning the need for hospitalization or medication of that condition, the standard of care required of a physician treating a condition, or whether any failure to take appropriate steps was the proximate cause of any injuries. Indeed, the Claimant has alleged no permanent injuries. For all of these reasons, the Claimant has failed to meet his burden of proof. See Stanley v. Board of Trustees (1986), 39 Ill. Ct. Cl. 107; O’Donnell v. State (1980), 34 Ill. Ct. Cl. 12; Porter v. State (1965), 25 Ill. Ct. Cl. 62.

The Claimant testified that he was seeking $5,000.00 because he was scared he might get sick again and not be treated in the proper manner. The general rule in Illinois is that the party seeking damages has the burden of establishing both the fact that he has been injured and a reasonable basis for determining the money value of those injuries. As we previously stated, the Claimant has not met his burden of proof as to the fact that he has been injured, and his proof of damages is clearly inadequate. In Re Application of Lopez (1987), 39 Ill. Ct. Cl. 315.

For all the foregoing reasons, we hereby deny this claim.

ORDER ON MOTION FOR REHEARING

Patchett, J.

This cause comes on for hearing upon the Motion for Rehearing filed Pro se. The Court has reviewed the “History of Complaint” filed by the Claimant on April 23,1990. The Court feels that the Claimant has not stated or provided any information which would cause the Court to reconsider the previously entered Order denying this claim. Therefore, Motion for Rehearing is hereby denied.


text:
    (No. 88-CC-4554
    Casey Bock, Claimant, v. The State of Illinois, Respondent.

      Order filed March 22, 1991.

    Casey Bock, pro se, for Claimant.
    Roland W. Burris, Attorney General (William Conroy, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

The Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against the Respondent, State of Illinois, for the sum of $30,000.00.

At the hearing in this cause, the Claimant testified that on December 19,1987, at approximately 10:30 p.m., he was walking down the hallway intending to go to the “day room.” The Claimant was with an inmate named Herb Hagan. Hagan was accosted by a group of inmates, one of whom attacked Hagan. In attempting to escape, Hagan ran into the Claimant and the Claimant was knocked to the floor. When the Claimant tried to get up, another unknown inmate kicked the Claimant in the side of his head. The Claimant testifies that he sustained a broken jaw from being kicked.

After the incident, a guard advised the Claimant to go to the Health Care Unit. Upon arriving at the Health Care Unit, the Claimant saw a nurse and advised her that he thought his jaw was broken. The Claimant testified that the nurse checked his eyes, ears, nose and mouth and told him, “you can go.” No physician was present. The Claimant contends that he requested that the nurse take x-rays of his jaw and that she refused, stating that the doctor would take the x-rays when he came in. The Claimant was not advised by the nurse that there was no doctor present at the time. The nurse who examined the Claimant prescribed no treatment for him, except that he was apparently given aspirin and some Motrin. The Claimant states that he received a ticket as a result of the incident and was escorted to segregation. The Claimant contends that he advised the guards who escorted him to segregation concerning his belief that he was injured. The Claimant told the officers working in the segregation unit that he felt his jaw was broken and that he needed to see a doctor. The Claimant contends that the guards told the Claimant that the doctor wouldn’t be in until the following week (Monday).

The following morning, the Claimant saw the same nurse again. On that occasion (Sunday morning), the Claimant advised the nurse that the pain killers he had received weren’t doing anything “to kill the pain,” and that the Claimant needed a stronger pain medication. The Claimant was advised that no stronger medication could be prescribed. This second visit with the nurse was at 5:00 a.m. At that time, the nurse advised the Claimant that she had no idea when the doctor “was going to come in.” The Claimant had never had previous facial injuries. The Claimant was unable to sleep after the injury and his face was swollen.

The following morning the Claimant again saw a different nurse from the Department of Corrections. The Claimant again advised the Respondent’s agent that he needed stronger pain medication. The nurse reiterated that she could not give the Claimant stronger pain medication, but advised the Claimant that a physician was scheduled to see the Claimant that day. The Claimant advised the second nurse, as well as the first nurse, that he thought his jaw was broken. That same day at 1:45 p.m., the Claimant was taken to see the doctor. His jaw was swollen.

The Claimant saw Dr. Feinerman at 1:45 p.m. and gave him a history of what had happened. The doctor ordered x-rays which revealed that the Claimant’s jaw was broken in two separate places. The Claimant again asked for stronger pain medication, but only received the same medication that he had received previously. The Claimant was returned to his cell for approximately an hour when he was escorted to see an oral surgeon off the grounds of the prison. The oral surgeon wired the jaw. Metal bands were put on the Claimant’s teeth and they were wired. The oral surgeon made no comment concerning the delay in treating the Claimant. The Claimant was returned to an infirmary at Lincoln Prison where he remained for. approximately one month. The Claimant saw the oral surgeon from time to time, who changed the bands on his jaw “every so often.” The bands remained on the Claimant’s jaw for a month and a half during which time he saw the oral surgeon regularly.

The Claimant contends that he was in significant pain for approximately one month. After the Claimant’s jaw was wired, he was taking liquid Tylenol with Codeine instead of Motrin. He took the liquid Tylenol, which helped him, approximately a month and a half until he was discharged from the oral surgeon’s care. The Claimant testified that he was never advised by the oral surgeon or any other person practicing the healing arts, that he had sustained injury or damage as a result of the failure on the part of the Respondent’s agents to secure earlier medical attention for his jaw.

At the hearing, the Claimant contended that the attack upon the Claimant and his friend was through the fault and neglect of the Respondent for the reason that there had previously been several violent off enses in this part of the prison, and there were insufficient staff present at the time of the attack in order to have prevented the attack. The security that was present on the wing at the time the Claimant was injured, was the same security that had been present for the wing for an indefinite period of time prior to the injury. To the Claimant’s knowledge, no one had ever complained that there was inadequate security. The Claimant contends there should have been one more officer present “on the wing,” and that if there had been such additional officer, his injury would have been avoided. Further, the Claimant contends that the failure of the Respondent’s agents to provide prompt medical treatment caused him damage beyond that which he would have suffered as a result of the attack on his person. The Claimant testified that the nurse should have called a doctor so that the Claimant could have been admitted to a hospital where he would have received proper pain medication until he could see the oral surgeon. Accordingly, the Claimant testified that he could have avoided the pain that he was in between the night of the incident and the time when he was treated by the oral surgeon on Monday.

With respect to the nature and extent of the Claimant’s injuries, the Claimant contends that he received nerve damage because he now has a numb feeling on the right side of his lip and right chin. He states that now when he drinks hot liquid, it feels as though the liquid is dripping down his chin when it is not. When he shaves on the right side of his chin, he feels certain sensations that he did not feel previously. The Claimant also contends that there was damage to his “eye tooth” and that it has “a funny feeling to it.”

An evidence deposition of Dr. Feinerman was taken by the Respondent. Dr. Feinerman testified that he had a specialty in internal medicine. He examines inmates at Logan and Lincoln and is at one prison or the other every day. Dr. Feinerman testified that he has had occasion to see and diagnose approximately 20 broken jaws. Dr. Feinerman does not treat broken jaws, but makes referrals to an oral surgeon. In the case of the diagnosis of a broken jaw, Dr. Feinerman would normally prescribe an analgesic pain killer. The records in the Claimant’s case reveal that Dr. Feinerman saw and examined him December 21, 1987. Dr. Feinerman testified that when he saw the Claimant, he ordered x-rays which revealed that the Claimant had a fractured jaw and he prescribed Motrin and referred the Claimant to an oral surgeon. Dr. Feinerman testified that the circumstances under which the nurse had seen the Claimant on the day of the injury, would “not necessarily” require the nurse to call a doctor for further advice. Dr. Feinerman testified that he concurred with the action that the nurse took on December 19, when she first saw the Claimant after the injury. Dr. Feinerman explained that there was no evidence of an injury of such urgency as to require the presence of a doctor. In answer to a hypothetical question, Dr. Feinerman testified that if he had seen the Claimant on the date of the injury at the same time that the Respondent’s nurse saw the Claimant, he could not have done anything more for the Claimant than was done by the nurse. Dr. Feinerman testified that it would be unusual, once a broken jaw was diagnosed, to have the patient wait 36 hours “but it doesn’t affect the outcome of the problem, no.” Dr. Feinerman concluded in his medical opinion based on his experience and on a review of the medical records of the Claimant, that the nursing staff at Logan gave the Claimant sufficient and adequate treatment for the injuries of which he was complaining.

The Claimant’s theory that he was afforded improper or inadequate medical care cannot be sustained. The evidence of Dr. Feinerman substantially refutes the Claimant’s assertions that he was entitled to additional or different medical care. (Wollard v. State (1980), 34 Ill. Ct. Cl. 198; Davis v. State (1987), 39 Ill. Ct. Cl. 185, 191.) In order to recover on a theory of inadequate medical care, the Claimant must first establish a breach of duty through expert testimony to establish that the Respondent deviated from applicable standards of care unless such inadequate care is obvious. The Court finds inadequate care is not obvious in this case; and the Court must rely on expert testimony. Dr. Feinerman essentially testified that the nurse had taken the same steps he would have in order to stabilize the Claimant’s condition; and that the long term result was not affected by the delay. No evidence was offered or questions asked whether a hospital would have administered the same pain killers or whether an oral surgeon and support staff would even have been available on Saturday night or Sunday. The Court finds that there is no competent evidence that the pain or seriousness of the injury was exacerbated by the State’s treatment.

With respect to the Claimant’s contention that the Respondent should answer in damages for the attack on the Claimant, the case of Dorsey v. State (1977), 32 Ill. Ct. Cl. 449, is controlling. In that case, no liability on the part of the Respondent was found due to the fact that the attack on the Claimant was without warning, and was committed by a man that the Claimant barely knew. In other words, the State could not foresee the assault. The Claimant testified that there had been problems in the area of the assault, but he knew of no complaint to the prison Administration about such nor was he specific as to the nature and incidence of such problems. The Claimant makes no allegation that the State could have known that he or inmate Hagan were to be singled out for assault. Thus, we find that the Claimant has not shown that the State had sufficient notice so that it could have foreseen an assault either at the location involved or against the Claimant and inmate Hagan. Therefore, as in the Dorsey case, supra, the State was not negligent. Therefore it is hereby, ordered that this claim be denied.


text:
    (No. 89-CC-0066

      In re Application of Louis P. Cardwell III, Claimant.

      Opinion filed December 7, 1990.

    Lawrence D. O’Gara, for Claimant.

      Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This claim is before the Court by reason of the death of Helen P. Cardwell, who was a police officer with the Chicago Police Department. Louis P. Cardwell III seeks compensation pursuant to the terms and provisions of the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 281 et seq.), hereinafter referred to as the Act.

The Court has carefully considered the Claim for Death Benefits submitted herein, together with documentation evidencing the Claimant’s appointments as Independent Administrator of the estate of decedent’s spouse, Lawrence K. Cardwell, who now is also deceased, and as Successor Guardian of the estate of the minor son of Lawrence K. and Helen P. Cardwell, Lawrence K. Cardwell II. In addition, we have examined the written statement of Officer Cardwell’s supervising officer, her Designation of Beneficiary form, the medical examiner’s Certificate of Death, and the Report of the Attorney General.

The instant claim was filed on July 7, 1988, by Lawrence K. Cardwell, spouse of Helen P. Cardwell, who died on May 19, 1988, while on duty as a Chicago Police Officer. Lawrence K. Cardwell then died on September 19, 1988, and Louis P. Cardwell III was appointed Independent Administrator of his estate and Successor Guardian of the estate of the minor son of Lawrence K. and Helen P. Cardwell, Lawrence K. Cardwell II. Louis P. Cardwell III has been substituted in as Claimant in this matter.

The record reveals that Officer Cardwell was assigned to the Department’s Senior Citizens Services Division at the time of her death. On May 19,1988, she had a fatal automobile accident while enroute in her unmarked police car to give a lecture to a group of senior citizens. The accident occurred at about 1520 S. Sacramento in Chicago, and Officer Cardwell was transported to Mount Sinai Hospital in Chicago. She was pronounced dead on May 19, 1988, at Mount Sinai Hospital. The Certificate of Death indicates that the cause of death was multiple injuries resulting from an automobile accident.

We find that the proof submitted in support of this claim satisfies the requirements of the Act and an award should therefore be granted.

The Designation of Beneficiary form filled out by Officer Cardwell indicates that she wanted her husband, Lawrence K. Cardwell and their son, Lawrence K. Cardwell II, to share equally the benefits payable by reason of her death. Since Lawrence K. Cardwell was still living at the time of Officer Cardwell’s death, we find that his share vested at the time of her death and should therefore be made payable to his estate.

Based on the foregoing, it is hereby ordered that an award of $50,000 be granted in this claim. Said award is to be divided and disbursed as follows:

$25,000.00 to Louis P. Cardwell III as Independent Administrator of the estate of Lawrence K. Cardwell, deceased, for the use and benefit of the estate of Lawrence K. Cardwell;

$25,000.00 to Louis P. Cardwell III as Successor Guardian of the estate of Lawrence K. Cardwell II, a minor, for the use and benefit of Lawrence K. Cardwell II.