text:
    (No. 75-CC-0740
    Illinois State Trust Co. and M & S Rental Equipment Co., Claimants, v. The Board of Trustees of Southern Illinois University, Illinois Junior College Board and State Community College of East St. Louis, Respondents.

      Opinion filed August 4, 1986.

    Carr, Korein, Kunin, Schlichter & Brennan (Rex Carr, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber and Lawrence Reisch, Jr., Assistant Attorneys General, of counsel), for Respondents.
   Holderman, J.

This is a claim for double rent of premises occupied by the East St. Louis Community College. The claim arises out of a lease entered into by Southern Illinois University and sublet or assigned to the Illinois Junior College Board and State Community College of St. Louis. The primary term of the lease was from June 1, 1969, to June 30, 1969, with options to renew for three two-year periods.

The dispute in question arose at the close of the first two-year renewal on June 30, 1971. At the close of the first option term, the college proposed to the Claimants the renewal of the lease for one year and cited as a reason the lack of appropriated funds. Claimants rejected the proposal by letter, dated September 14, 1971, and addressed to the Board of Trustees of Southern Illinois University. Thereafter, rents were submitted subsequent to September 21, 1971, and accepted by Claimants. Claimants are asking for the sum of $304,000.00, plus costs and interest for the period in question (September 22,1971, to July 1974).

This is an old case starting originally on January 6, 1975, when the complaint was filed. The docket sheet is now 3M pages long.

Briefly, the record shows that when the original lease expired, there were several letters exchanged between the parties. Claimants wrote a letter dated September 14, 1971, to the Board of Trustees of Southern Illinois University which stated that the holding over beyond the termination date of the lease constituted renewal under the option for an additional two years. On September 22,1971, Claimants wrote the Board another letter to the effect that the original lease had been cancelled, and on November 11, 1971, Respondent wrote to Claimants stating “. . . none of our actions shall be deemed to have been a renewal of our lease for the period of July 1, 1971-June 30,1973.”

The fact remains, however, that Respondent kept paying the rent at the old figure and the payment at the old figure was accepted by Claimants, although they did write to Respondent that the payment was not sufficient.

Another important factor in the Court’s decision is that a new lease was entered into after approximately two years of paying hold-over rent and the new lease was for an amount only slightly larger than that of the original lease.

Respondent, in its brief and arguments, states that by accepting the old rent an election was made by Claimants and Respondent was therefore not liable. Respondent continued to occupy this property for an additional three years and paid rent at the rates called for in the old lease, from 1971 to 1974. This rent was accepted by Claimants and no proceedings were started to evict Respondent from the premises although protests were made every month.

Respondent further contends that acceptance of the rent as listed in the original lease after its demand for possession would constitute a waiver of statutory rights since it would make Respondent a hold-over tenant. Respondent also points out that at no time did Claimants exercise the option of ouster of said tenant. Respondent also states that penalty provisions cannot be applied against the State of Illinois. Illinois Power Co., 30 Ill. Ct. Cl. 506; Ill. Rev. Stat. 1971, ch. 80, par. 2.

Claimants state that the statute provision does not govern this case and they are entitled to double rent under the theory of common law. Claimants call attention to the fact that the rents paid after September 1, 1971, were at the old rate and were not satisfactory, and although they billed Respondent each month for the new amount, they were continually paid at the old rate.

It is the Court’s opinion that the acceptance of the old rent was an act by Claimants establishing that election had been made and therefore Respondent is not liable. It is the Court’s further opinion that under the penalty laws of the State of Illinois, penalties sought by Claimants in this case, double rent, is a penalty which is contrary to the laws of the State of Illinois.

Award is denied and this cause is dismissed.


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (No. 76-CC-2629
    Robert E. Howard, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed April 14, 1978.

      Order on motion to vacate filed November 20, 1978.

      Order on motion to dismiss filed April 6, 1979.

      Opinion filed June 10, 1987.

    Perz & McGuire (Robert M. Zelek, of counsel), for Claimant.

      Neil F. Hartigan, Attorney General (Richard Houser, Special Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

The Claimant, Robert E. Howard, brings this action against the State of Illinois, seeking recovery of money damages for injuries suffered in a deer-automobile accident on November 28,1974. Claimant struck a deer on Illinois Route 180 in Knox County, Illinois. He seeks to recover damages from the State of Illinois for injuries sustained when striking the deer, based upon a theory that the State should have posted deer crossing signs in the area where he struck the deer.

Evidentiary hearings were held on August 25, 1982, and February 10,1984. Counsel for the Claimant and the Assistant Attorney General were present throughout the course of these hearings. In addition, evidentiary depositions were taken and submitted by Claimant. Both parties have submitted their briefs and arguments.

The sole issue presented is whether the State of Illinois had a duty to erect a deer warning sign at or near the site of the accident. Claimant relies upon section 11 — 303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95M, par. 11 — 303), as the basis for recovery in this action.

The record reflects that on November 28, 1974, at approximately 2:00 a.m. the Claimant was driving southbound on Illinois Route 180 approximately 2M miles north of Williamsfield, Illinois. Claimant had driven this route on numerous occasions. The collision took place while he was driving south on the two-lane road. On the aforesaid date, the speed limit for that road was 55 miles per hour. The Claimant, prior to the impact, had been going at a top speed of 50 miles per hour.

The collision site was a two-hilled wooded area with some timber and brush. While the Claimant was driving at the aforesaid location, suddenly and without warning, two large deer jumped in front of the Claimant’s car while he was traveling about 50 miles per hour. At the top of the hill, the first deer jumped over the car but did not actually strike the vehicle. The second deer, however, came in contact with the Claimant’s vehicle, causing a violent collision and serious injury to the Claimant.

The record reflects that an Illinois Department of Transportation engineer, Steve Van Winkle, was the District Traffic Engineer for District 4, including Knox County, from 1974 to 1976. He testified that he would not consider putting up a deer sign in a particular area unless he had a positive recommendation from the Department of Conservation. The Department of Transportation would rely solely upon the recommendation of the Department of Conservation in determining whether to put up a deer sign. During the time that he had responsibility for District 4, the Department of Transportation erected no deer signs for District 4.

Forrest Loomis of the Department of Conservation is the top State official in Illinois as it relates to deer management and road-deer mortality. He testified that it is the policy to discourage use of deer signs due to their ineffectiveness. He further testified that thousands of deer are killed on the roads of Illinois each year. In November of 1974, Forrest Loomis did not recommend the posting of deer signs anywhere in his area of responsibility, including Knox County, Illinois. Loomis has never recommended to the Department of Transportation that it install deer warning signs anywhere in Illinois.

Dr. Allan Wolff testified as an expert in the field of wildlife science and natural resources management on behalf of the State of Illinois. Dr. Wolff was of the opinion that deer warning signs are ineffective and do not reduce the incidence of deer-automobile collisions. Further, the record reflects that the Department of Transportation’s policy is not to put up additional deer warning signs due to their ineffectiveness.

Claimant’s expert witness, Lester Kollom, a safety engineer for the U.S. Postal Service, testified that the history of the physical location in question, the type of road, the type of vegetation and the road environment which forms a valley would be attractive to deer. He further testified that certain precautions such as fences and guard rails should have been placed along Illinois Route 180. However, he was unaware of the nationally published studies on the effectiveness of deer warning signs.

Section 11 — 303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95M, par. 11 — 303) provides in pertinent part as follows:

“(a) The department shall place and maintain such traffic-control devices, conforming to its manual and specifications on all highways under its jurisdiction as it shall deem necessary to indicate and to carry out the provisions of this Chapter or to regulate, warn or guide traffic.” (Emphasis added.)

It is clear that this statute is discretionary and not mandatory. It allows the State to place such traffic control devices “as it shall deem necessary.” If the State of Illinois does not deem it necessary to post deer signs on Route 180, it is not required to do so under the statute, since section 11 — 303 is purely discretionary in nature.

Thousands of deer are killed on the roads of Illinois every year and to suggest that the State should be liable each time a motorist strikes a deer because the State did not post a deer sign at that particular location, is contrary to the intent of the statute granting the government discretion in the posting of deer warning signs.

In Sherar v. State (1965), 25 Ill. Ct. Cl. 256, Claimant sued the State for failure to post a “Stop Ahead” sign at an approach to an intersection. In that case, we cited the former equivalent of section 11 — 303 of the Illinois Vehicle Code and held that the failure to maintain a sign did not constitute negligence.

The judgment as to whether it is necessary to place deer signs in certain places on the thousands of miles of State highways is discretionary. To interfere with such discretionary decisions of State government would unduly interfere with the governmental functions of the State and would place an unreasonable burden upon the State. The State is immune from liability or negligence in the performance of discretionary duties. Flaim v. State (1975), 30 Ill. Ct. Cl. 634.

In the absence of statutory provisions to the contrary, there can be no recovery against the State or a municipal corporation for injuries caused by negligence in the exercise of functions which are essentially discretionary or governmental in nature, although liability may attach for acts which are ministerial in nature.

Based upon the evidence submitted, it is clear that the decision to post deer warning signs at a particular location is an exercise of a governmental function in determining whether such signs are necessary. Therefore, the particular State agency involved in that decision-making process is held immune from liability for accidents claimed to have been caused by its failure to erect a deer warning sign. This principle is reaffirmed in Locigno v. City of Chicago (1961), 32 Ill. App. 2d 412, 421, in which the court held that the regulation of traffic is a governmental function.

In the instant case, since the State did not undertake to place deer signs on Route 180, it may not be held liable. The State created no danger on the highway and the highway was not defective. As such, the State had no duty to post deer warning signs at the location in question.

It is therefore ordered, adjudged and decreed that the complaint is dismissed, with prejudice.


author: Montana, C.J.

text:
    (No. 77-CC-1251
    Jane and John Doe, Claimants, v. The State of Illinois, Respondent.

      Opinion filed August 4,1986.

    Pelini, Crewell & Sheffler, for Claimants.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This is a claim for psychological, behavioral and physical damage suffered by the child of licensed foster parents who was sexually molested by a ward of the Respondent’s Department of Children and Family Services (hereinafter referred to as DCFS) that was temporarily placed in the household of the foster parents. A hearing was not held in this matter, however a stipulation of facts was filed along with an additional stipulation of facts and, pursuant to an order entered in November of 1982, certain other documents were allowed into evidence. A brief was filed by the Claimants, but the Respondent failed to file any brief although ordered to do so by the commissioner. The commissioner has duly filed his report and the matter is now before the Court for a decision.

Mr. and Mrs. John Doe were licensed foster parents with DCFS. They had several sons, one of whom was Tom, a seven-year-old who resided with them and of whom DCFS was aware. On July 17,1975, a caseworker for DCFS inquired of the Does whether they would agree to be temporary foster parents for Richard D. Campbell, Jr., an 18-year-old ward of DCFS. This caseworker was familiar with the Doe’s family situation. During the conversation Jane Doe asked the caseworker whether there was anything about Campbell which she should know and the caseworker said no. Relying upon the caseworker’s representations, the Does agreed to be temporary foster parents for Campbell. On July 18, 1975, a different caseworker for DCFS dropped Campbell off at the Doe household. Upon his placement in the Doe household, Campbell was told by the Does that he would sleep in the same room with their son, Tom.

On more than one occasion during the evenings of July 19-20 and 20-21, 1975, Campbell sexually molested Tom Doe in the bedroom of the Doe home occupied by Campbell and Tom Doe. Jane Doe contacted the DCFS office in Champaign, Illinois on July 21, 1975, and requested the removal from her household of Campbell because of the sexual assaults made upon her son by Campbell. Instead of taking immediate action upon receiving such serious allegations representatives of DCFS advised her that Campbell could not be removed from her household on that day and he would have to spend yet another evening in her household. On the evening of July 21-22, 1975, Richard D. Campbell, Jr. still resided in the Doe household. On July 22, 1975, representatives of DCFS removed Campbell from the Doe household.

On July 29, 1975, Campbell was charged by indictment with the offense of indecent liberties with a child in that he had performed a lewd fondling or touching of Tom Doe, a minor under the age of 16 years, with the intent to arouse or satisfy his sexual desires, which indictment was filed in the Circuit Court of Champaign County, Illinois, in the cause entitled “The People of the State of Illinois v. Richard D. Campbell, Jr., 75-X-1123, Champaign County, Illinois.” Campbell entered a plea of guilty to the charge on October 29, 1975.

After careful and lengthy review of the record, we find that we agree with the Claimants’ assertion that the Respondent, through its agent, DCFS, was negligent in failing to inform the Does prior to the placement of Richard D. Campbell, Jr., in the Doe household that Campbell had a prior history of aggressiveness, behavioral disorders, and homosexuality and that the negligence of DCFS was the proximate cause of the damage suffered by Tom Doe. The record indicates that the caseworker for DCFS responsible for placing Campbell with the Does was aware that Campbell had a propensity for aggressiveness, behavioral problems and homosexuality and that Campbell would be sharing a room with one of the Doe sons, yet he failed to inform the Does that Campbell had any problems of which they should be aware. He knew or should have known that he had a responsibility to provide the Does this information, but negligently failed to do so and under the doctrine of respondeat superior the State of Illinois can be held ultimately responsible for malfeasance, misfeasance or negligence on the part of its agents and employees. See, e.g., Malloy v. State (1949), 18 Ill. Ct. Cl. 137.

According to the record, including the evidence deposition of the Claimants’ expert witness, a counseling psychologist who had evaluated him, Tom was a typical well-adjusted seven-year-old until Campbell was placed in the Doe home as a foster child. Since that time Tom had many psychological problems which are not necessary to describe for purposes of this opinion. The problems were serious and did affect his relationship with others, and in particular with his family. He seems to have made much progress in overcoming these problems during early adolescence. Although the extent of the problems remaining was not capable of being exactly identified, it was clear seven years after the incidents that he still had a habit disorder which would affect his relationships with others and likely suffered from other problems associated with the trauma. The record seems to indicate that counseling has been discontinued. As for a prognosis, it could not be said that he would recover completely from the experience nor was there any certainty that other problems would not manifest themselves later on in life.

Although out of pocket expenses were stipulated to be only $1,477.80, the severe impact on the victim is undeniable. Affixing a monetary award in such a case is most difficult. Our research has revealed little. After much deliberation it is our decision to award $85,000.00 in compensation in this claim.

It is hereby ordered that the Claimants herein are awarded $85,000.00 of which $1,477.80 is for John Doe and Jane Doe individually and the balance is for them as parents and guardians for the use and benefit of Tom Doe. It is further ordered that the record in this matter be sealed and the names John, Jane and Tom Doe be substituted for the parents and their son, respectively, in the reported decision in this matter.


author: POCH, J.

text:
    (No. 77-CC-2478
    Madison-Kedzie, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 31, 1986.

    Lisco & Field, for Claimant.
    Neil F. Hartigan, Attorney General (James A. Koch, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

The Claimant, Madison-Kedzie, Inc., seeks an award of $63,370.45 in payments claimed to be due from the Illinois Department of Public Aid for vendor payments due for services rendered to or on behalf of welfare recipients.

This claim was presented to a commissioner of this Court for the taking of evidence. The Claimant alleges that the Respondent did not have the authority to terminate the Claimant as a vendor under the Medical Assistance Program and that the Respondent did not prove the Claimant was guilty of fraud and, therefore, the Claimant is entitled to the full amount requested. The Respondent argues that the Claimant should be paid for services only until the date of its termination from the program and that in the alternative that the claim should be denied in its entirety due to Claimant’s fraudulent conduct in providing claimed services to welfare recipients.

The evidence is summarized as follows: The Claimant seeks an award of damages for the nonpayment of 7687 prescriptions provided to welfare recipients who were receiving public assistance from the Illinois Department of Public Aid (IDPA), an agency of the Respondent. During 1975 the IDPA conducted an audit of the Claimant’s pharmacy business, which for the most part provided services to public aid recipients. The IDPA decided to terminate the Claimant as a provider and advised the Claimant that it would be terminated effective February 27,1976. The Claimant appealed this decision which was ultimately upheld by the Director of the IDPA on February 25, 1977. Thereafter, the Claimant filed this claim in this court.

Hiram Anderson, a co-owner of the Claimant’s pharmacy business testified that the Claimant submitted duplicates of prescriptions filled by the pharmacy which was the only documentation required by IDPA in 1976. Anderson testified that the Claimant was not paid $20,252.00 for prescriptions filled between February 11, 1976, and February 27, 1976. The remaining amount claimed results in the prescription fees from February 27,1976, until July 1976 while the termination was in the internal appeal process. The Respondent’s witness, Michael L. Berger, testified that he did not know how much of the $20,252.00 claimed was paid by IDPA. The Respondent also called Lawrence G. Thompson to support its affirmative defense that the Claimant had engaged in fraudulent conduct and, therefore, its claim should be barred by the provisions of section 14 of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.14), and by the provisions of section 8A — 1 of the Illinois Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, par. 8A — 1). Thompson reviewed the prescription forms in 1982. He questioned less than two percent of all the prescriptions submitted.

The Claimant initially argues that the director of IDPA was not authorized at that time to terminate vendors under the Medical Assistance Program that were suspected of fraud. This court in I & D Pharmacy v. State (1984), 37 Ill. Ct. Cl. 37, has decided the same issue as raised herein. The decision ini ir D Pharmacy was based upon the ruling of the Illinois Supreme Court in Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223. In Bio-Medical the director of IDPA attempted to terminate a vendor from participation in the Medicaid program for welfare recipients. The supreme court found that the director was not entitled to suspend a vendor where there were no intelligible standards provided to guide the director in the exercise of his discretion. In the absence of statutory authority, the director may not suspend a vendor. In addition section 12 — 15 of the Illinois Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 12 — 15) provides that the Attorney General may file suit against vendors to recover overpayments made to vendors.

Since the decision in Bio-Medical, the General Assembly has enacted section 12 — 4.25 of the Illinois Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 12— 4.25), which allows under certain conditions the IDPA to terminate or suspend a medical vendor and withhold payments. This statute was effective on December 1, 1977. Pursuant to section 12 — 4.26 of the Illinois Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 12 — 4.26), the powers conferred by section 12 — 4.25 are effective only subsequent to the effective date of December 1, 1977 (with certain enumerated exceptions not relevant in this case).

In Roth v. Department of Public Aid (1982), 109 Ill. App. 3d 457, 440 N.E.2d 910, the IDPA attempted to recoup payments made to a vendor of medical services prior to December 1, 1977. The appellate court found that section 12 — 4.26 of the Illinois Public Aid Code does not authorize the IDPA to exercise powers of recoupment retroactively. The Department would be able to recoup funds, but only by exercising its common law right by bringing a civil action for recovery of funds.

In I & D Pharmacy v. State (1984), 37 Ill. Ct. Cl. 37 this Court ruled on the identical issue raised in the instant case. It was held in that case which is dispositive of the same issue raised herein, that:

“The Respondent’s initial defense is that the services rendered after the contract was terminated by the director on February 26, 1976, are not entitled to payment. The director took such action without referral of the claimed fraud to the Attorney General for prosecution. . . . While the director has the authority to promulgate rules governing the quality and quantity of medical services rendered by vendors . . . there is no authority for the director to act as he did in the instant case terminating Claimant’s rights under the contract.. . . We therefore find that the director’s action was improper and that the Claimant could continue to fill prescriptions until the date it voluntarily terminated its participation in the medical assistance program.’’ 37 Ill. Ct. Cl. 37, 38-39.

In the instant case the IDPA determination was made before the effective date of section 12 — 4.25 of the Illinois Public Aid Code. Based on the authority cited herein the Respondent is not entitled to withhold payments because the director of IDPA did not have the authority at the time he did so to suspend or terminate a vendor as he did in this claim. The director could have referred this matter to the Attorney General but did not do so. Therefore, the Claimant would be entitled to payment unless the Respondent could sustain its affirmative defense that the claim is barred by Claimant’s alleged fraud.

In order to sustain its affirmative defense of fraud the Respondent must prove the fraudulent conduct by clear and convincing evidence. The Respondent must also prove the Claimant made a false representation with the intent to deceive. Such evidence of fraud must be affirmatively proved by clear and convincing testimony and cannot be based on suspicion. Bethune Plaza, Inc. v. State Department of Public Aid (1980), 90 Ill. App. 3d 1133, 414 N.E.2d 183; Oltmer v. Zamora (1981), 94 Ill. App. 3d 651, 418 N.E.2d 506.

A review of the evidence offered by the Respondent on its affirmative defense of fraud shows that the Respondent has not met its burden of proof by clear and convincing evidence. The Respondent’s witness questioned less than two percent of the prescriptions submitted. While the Claimant could have kept better records, that does not equate to proof of fraud. The Respondent has not met its burden of proof on the affirmative defense of fraud, and therefore the Claimant is entitled to an award for the amount claimed. See I & D Pharmacy v. State, supra, for the discussion of fraud as an affirmative defense in a similar factual situation.

Based upon all the evidence presented, the Claimant, Madison-Kedzie, Inc., has proved its entitlement to an award of $63,370.45.

It is hereby ordered:

That the Claimant, Madison-Kedzie, Inc., be awarded the sum of sixty-three thousand, three hundred seventy dollars and forty-five cents.


text:
    (No. 79-CC-0454
    William Jager et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed April 30, 1986.

      Order on denial of petition for rehearing filed September 8, 1986.

    Edward R. Vrdolyak, Ltd. (Bruce M. Bozich, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (Mary A. Mulhern, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This is a claim for damages suffered as a result of a collision between a vehicle driven by William Jager and an Illinois State Police automobile operated by an Illinois State Trooper on the evening of April 24,1977, at the intersection of Cedar Road and Francis Road in New Lennox, Illinois.

Hearings have been held for this claim, all parties have filed their briefs, and the commissioner has duly filed his report. The matter now comes before the Court for a decision.

The evidence shows that Cedar Road is a two-lane, two-way north-south street and Francis Road is a two-lane, two-way east-west street. The intersection is controlled by four-way stop signs. Claimant William Jager was driving a van owned by Charles Jager in a northerly direction upon Cedar Road. Claimants Maureen Jager, Pamela Morrison-Zakhar, Roger Rodeck and Theresa Settles were passengers in the Jager van. As the Jager vehicle came to a stop at the stop sign, a pickup truck operated by Jean Ann Timm entered the intersection eastbound on Francis Road, having previously stopped for the stop sign for eastbound traffic at that intersection. At the same time, an Illinois State Police squad car, driven by Trooper Richard Nichols was entering the intersection in a southerly direction on Cedar Road. The police car collided with the pickup truck in the intersection and then struck the Jager van and stopped just south of the intersection.

The issue presented for consideration is whether the State trooper was guilty of negligence which proximately caused the accident and the resulting injuries to Claimants.

Four witnesses testified as to the actions of Trooper Nichols at the time of the occurrence.

Trooper Nichols testified that just prior to the occurrence, while driving his vehicle southbound on Cedar Road, he received a radio call of an officer needing assistance when he was approximately three-fourths of a mile to a mile north of the intersection. He stated he activated his vehicle’s red flashing lights upon hearing the call and proceeded toward the intersection at 30 to 35 miles per hour. He was unable to estimate how much time elapsed from activation of the lights until the first impact. He never turned on the siren prior to the accident nor did he ever sound the horn. He braked before entering the intersection at about 20 miles per hour, not stopping at the stop sign since he saw all the vehicles at the intersection including a Cadillac stopped westbound on Francis Road and all the vehicles seemed to him to be yielding to him. As he was three-fourths of the way through the intersection he observed the pickup truck entering the intersection. He collided with the pickup truck and then veered to his left striking the stopped van. His vehicle finally stopped 70 feet south of the intersection. He admitted never applying his brakes just prior to the collision with the pickup truck.

William Jager testified that he was approximately 20 car lengths south of the intersection when he saw the police vehicle approximately the same distance north of the intersection. He estimated the speed of the police vehicle to have been at least 55 miles per hour and stated that it had not activated its flashing red lights. The flashing lights were activated when the police car was about 50 feet from the intersection but, by that time, the pickup truck had already entered the intersection. The police car never reduced speed prior to entering the intersection and collided with the pickup truck, veered into the northbound lanes of Cedar Road, collided head-on with the van, pushing the van backwards two car lengths and then careened off about 150 feet further south, striking a telephone pole.

Eyewitness Gary Gossett testified that he was operating a vehicle northbound 30 to 40 feet directly behind the Jager van just before the collision. He stated that prior to entering the intersection the police car only had headlights on, that upon entering the intersection its flashing lights were activated no more than one or two seconds prior to the impact between the pickup truck and the police car, and that the police car was traveling about 35 miles per hour, never slowing down before impact.

Finally, Jean Ann Timm, the driver of the pickup truck, testified that she first saw the police vehicle when it was approximately one quarter mile north of the intersection and that it had no flashing lights on at that time. After she stopped at the intersection she saw a flash of red light and was simultaneously jolted by impact with the police car. She said the police car ended up resting against a telephone pole 70 to 80 feet south of the intersection.

In the opinion of the Court it has been proven, by a preponderance of the evidence, that Trooper Nichols was negligent in the operation of his vehicle. He, admittedly, failed to activate his siren or horn prior to entering the intersection at which he observed three vehicles. He failed to stop at the stop sign. We are persuaded, from the force of the impact with Claimants’ vehicle and the fact that he ended up colliding with a telephone pole 70 feet south of the intersection after two impacts, that his speed was in excess of his estimate of 20 miles per hour and was in excess of that which was reasonable considering the circumstances. Additionally, according to two witnesses who are not parties to this action, he failed to activate his flashing red lights until seconds before the first impact, too late to provide warning to the pickup truck entering the intersection. Since, by all accounts, the Jager van was at a stop at the stop sign at the time of the impact, there can be no question of any contributory negligence on the part of its driver, William Jager.

As to the injuries suffered, the evidence was undisputed. Claimant Maureen Jager, immediately after the accident was bleeding from her right eyelid and her right ankle was swollen and painful. She was transported by ambulance to Silver Cross Hospital where her eyelid was sutured by Dr. Tsai. She was obliged to use crutches to accommodate the soft tissue injury to her ankle for three weeks. She saw Dr. Moll of Frankfort Clinic three times and saw Dr. Tsai for a second time for the removal of the sutures. Her complaints at the time of the hearing were occasional ankle pain and drooping of her right eyelid and scarring from the sutures. Her medical special damages amount to $431.00. We find that she is entitled to an award of $3,500.00.

William Jager was knocked out of the driver’s seat of his van from the force of the impact. He was knocked unconscious and was revived at the Silver Cross Hospital. He suffered a laceration of the head which was sutured. He suffered headaches for one week and lost two days of work, amounting to $80.00. His medical special damages amounted to $237.00. We find that he is entitled to an award of $1,000.00.

Claimant Pamela Morrison-Zakhar was seated on the floor of the van at the time of the impact. As a result of the impact she was propelled forward to the front of the van where she struck her face and knees against various objects. She was taken by ambulance to Silver Cross Hospital where her upper lip was sutured. She was referred to Dr. Svalina, an oral surgeon, who testified that she had the following damage: left incisor was completely avulsed and missing; a fractured crown of the right central incisor, a fractured crown of the left lateral incisor; avulsions out of the socket of teeth Nos. 10-12; and a fractured root of tooth No. 12, the left first premolar. Treatment consisted of placement of a wire fixation device around the damaged and adjacent teeth. Recently, she has had continuing problems including the fact that the end root of her upper left cuspid tooth has begun to protrude through the wall of the bone which may reflect a rejection process of the tooth.

Dr. Kosel, her regular dentist, fashioned and installed a temporary and then a permanent bridge in her mouth, which in her lifetime might need to be replaced four to six times because of normal wear and tear. In March of 1982 she was treated by Dr. Garber, a dentist who replaced the bridge installed by Dr. Kosel because of receding of the gums.

Approximately one year after the accident Claimant Morrison-Zakhar was operated on by Dr. Gotsis, a plastic surgeon who recut her lip as a result of lesions from her lacerations. She has suffered swelling and pain in both of her knees requiring X rays and temporary restriction of activities. Kneeling or standing for long periods of time still hurts her knees. Her medical and dental bills thus far are $4,944.00. Expected bridge replacements were estimated at $14,400.00. We find that she is entitled to an award of $30,000.00.

As to Claimants Roger Rodeck, Theresa Settles and Charles Jager, no evidence was presented on their behalf and we find, therefore, that their claims must be denied.

Wherefore, it is hereby ordered that awards be granted in this case to the following persons in the following amounts:

(a) $3,500.00 to Maureen Jager

(b) $1,000.00 to William Jager

(c) $30,000.00 to Pamela Morrison-Zakhar

It is further ordered that the claims of Roger Rodeck, Theresa Settles, and Charles Jager, be denied.


author: Holderman, J.

text:
    (No. 79-CC-0871
    Margaret Tzinberg, Assignee of the Claim of Gem Super Drugs, Inc., d/b/a Gem Rexall Drugs, Claimant, v. The State of Illinois Department of Public Aid, Respondent.

      Opinion filed November 3, 1986.

    Goldenhersh & Goldenhersh, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, and James Rader, of counsel), for Respondent.
   Holderman, J.

This suit involves the claim of Margaret Tzinberg, assignee of the claim of Gem Superdrugs Incorporation, d/b/a Gem Rexall Drugs (GEM) against the State of Illinois Department of Public Aid (IDPA) for payments on prescriptions allegedly furnished to recipients of public aid in conjunction with the Public Aid Medical Plan. GEM alleges that it furnished prescriptions in the amount of $65,359.24 to public aid recipients for which it was never paid. IDPA alleges two defenses — first, that the claims submitted to IDPA for these prescriptions were fraudulent; and second, that GEM was suspended from participation in the public aid program as of July 2, 1974, and that therefore any billings subsequent to that date are not allowable.

The facts of the case show that GEM was owned by a pharmacist by the name of Jack Tzinberg. Tzinberg entered into an agreement with IDPA on January 30, 1969, under the auspices of the Medical Assistance Program of IDPA to provide pharmaceuticals to recipients of public aid. Under the terms of this program, pharmacists who have been approved by the IDPA are entitled to be reimbursed for pharmaceuticals that they dispense to public aid recipients so long as they file a claim for the pharmaceuticals in a manner prescribed by the IDPA. The rules and regulations of the IDPA, as well as the billing procedures, are set out in the manual sent by IDPA to participating pharmacies. The terms of the agreement between GEM and IDPA provide that the agreement may be terminated by the pharmacy or by IDPA at any time upon written notice.

During the year 1974, Tzinberg was the general manager of GEM. The business was dissolved in 1979, and the only shareholder was Tzinberg’s wife, Margaret Tzinberg. By virtue of this status, Margaret Tzinberg acquired her position as assignee of the claim of GEM.

Tzinberg testified that during the year 1974, GEM dispensed pharmaceuticals to public aid recipients for which they were not reimbursed in the amount of $65,359.24. Tzinberg testified these claims were all proper, they were not fraudulent, they were submitted in compliance with proper IDPA procedures, and they were submitted in compliance with procedures that had previously been approved by IDPA. Tzinberg acknowledged, however, that GEM had received a telegram from the director of the Department of Public Aid on July 2,1974, stating that:

“This telegram will serve as notification that until further notice the Illinois Department of Public Aid is suspending payment to the above named drug store as a result of significant irregularities discovered during the preliminary investigation.”

Furthermore, Tzinberg acknowledged the receipt of a letter dated July 22,1974, which stated:

“This is to notify you that GEM Rexall Pharmacy is suspended from participation in the Department of Public Aid’s medical assistance program effective with the date of your receipt of this letter.”

Claimant has argued throughout this case that these documents should have no effect. Claimant’s position is that the term “suspension” did not give GEM adequate notice that it was terminated from the program. Tzinberg admitted, however, that upon receipt of the telegram he immediately contacted the Illinois Pharmaceutical Association to determine whether he should continue filling prescriptions.

The amounts involved in this matter are $43,049.37, which is the amount billed after July 2, 1974, and $22,309.87, which is the amount billed prior to July 2, 1974.

Respondent has raised the issue of fraud as a defense to payment of these bills. It is well established in Illinois that the burden of proving fraud is on the party alleging the fraudulent conduct. Cole v. Ignatius (1983), 114 Ill. App. 3d 66, 448 N.E.2d 538.

Respondent produced seven witnesses at the trial in an effort to prove fraud. The witnesses, in the opinion of the Court, did not establish fraud. There is a notation to the effect that Claimant was fined on a fraud charge. The evidence in the record indicates that the fraud allegations were made in reference to events in 1973 and the indictment was in 1976. Claimant states there were important witnesses who were no longer available and they had not been informed exactly what the accusations were. Claimant alleges that Mr. Tzinberg was suffering from cancer and underwent surgery for the removal of the same, and that because of his ill health and in order to avoid further acceleration of his illness, they agree that the Court make a finding on the fraud charges. Claimant further alleges there was no element whatever of any admission of fraud in the disposition of the charges, and that fraud was specifically denied by Claimant.

Claimant cites as a defense of her position the case of McCottrell v. Benson (1961), 32 Ill. App. 2d 367, 178 N.E.2d 144. This case states that a plea of guilty in a criminal proceeding is admissible as an admission against interest in civil proceedings arising from the same events; however, a record of a conviction is not admissible. Claimant also cites the case of Cogdill v. Durham (1976), 43 Ill. App. 3d 940, 358 N.E.2d 6, which states that even when a plea of guilty is admitted in a civil case, the affected party is entitled to offer an explanation of the plea of guilty, in diminution of the weight of the admission, which is to be considered along with all of the other evidence.

This Court is of the opinion that the fraud charge is not supported by the evidence submitted by Respondent.

One of the most important elements in this case, in the opinion of the Court, is that after the two notices to Claimant in July, business continued as before between Claimant and Respondent, and it was not until the letter of November 22, 1974, that the termination became effective. This seems to be a clear acknowledgment that Claimant did not consider the July letter and telegram to terminate the contract and the effective date was November 22, 1974. It is acknowledged that the items for which Claimant is attempting to collect were furnished at the request of Respondent and the orders were filled by Claimant as they had done in the past. This, in the opinion of the Court, is very clear evidence that Respondent did not believe that the letter and telegram sent to Claimant in July were effective in terminating the contract.

It is the opinion of the Court that Claimant is entitled to an award in the amount of $55,346.21, the total amount of payments due Claimant from January 1974 to November 1974, the actual termination date of the contract.


text:
    (No. 80-CC-0298
    Hardy Lewis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 3, 1986.

    Gerald C. Bender, for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This cause comes before the Court on the parties’ joint stipulation settlement which states:

This claim arises from personal injuries that occurred to the Claimant when he was a prisoner at a facility owned and operated by the State of Illinois Department of Corrections.

The parties have investigated this claim, and have knowledge of the facts and law applicable to the claim, and are desirous of settling this claim in the interest of peace and economy.

Both parties agree that an award of $10,000.00 is both fair and reasonable.

Claimant agrees to accept, and Respondent agrees to pay Claimant $10,000.00 in full and final satisfaction of this claim and any other claims against Respondent arising from the events which gave rise to this claim.

The parties hereby agree to waive hearing, the taking of evidence, and the submission of briefs.

This Court is not bound by such an agreement but it is also not desirous of creating or prolonging a controversy between parties who wish to settle and end their dispute. Where, as in the instant claim, the agreement appears to have been entered into with full knowledge of the facts and law and is for a just and reasonable amount, we have no reason to question or deny the suggested award.

It is hereby ordered that the Claimant be awarded $10,000.00, in full and final satisfaction of this claim.


text:
    (No. 80-CC-0973
    Patricia Rutledge, Claimant, v. The Board of Trustees of the University of Illinois and the State of Illinois, Respondents.

      Order on motion to dismiss filed January 19, 1983.

      Order on motion to dismiss filed January 26, 1983.

      Order filed May 13, 1987.

    Frank J. Mackey, Jr., for Claimant.
    Baker & McKenzie, for Respondents.
   ORDER

Holderman, J.

Pursuant to stipulation by and between the parties hereto, and it appearing to the Court that all costs have been paid and all matters in controversy for which said action was brought have been fully compromised, settled and adjourned;

It is hereby ordered, adjudged and decreed that the above-entitled action be, and the same hereby is, dismissed with prejudice and without costs to either party.


text:
    (No. 81-CC-0410
    Johnson County Asphalt, Inc., The KNP Corporation, Frank Nutty, Inc., and Pautler Brothers Contractors, Inc., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 24, 1987.

    Dub ail, Judge, Kilker, O’Leary & Smith, for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This action was brought by the Claimants for damages allegedly caused by Respondent’s breach of contract between Claimants and the Illinois Department of Transportation for the construction of a portion of Interstate Route 55 in McLean County, Illinois. Claimants are individual contractors who formed a joint venture to carry out the construction provisions of the contract. Hearings were held before Commissioner Robert J. Hillebrand. The parties have filed their briefs and Commissioner Hillebrand has duly filed his report, so the matter is now before the Court for a decision.

The facts in this claim are largely undisputed. On June 26, 1973, Claimants entered into a contract with Respondent that provided for Claimants to construct a section of Interstate 55. Interstate 55 in the area of construction was to replace U.S. Route 66. The construction schedule provided that traffic would use a portion of U.S. Route 66 while the corresponding portion of 1-55 was under construction.

During the course of excavation and construction, numerous delays occurred. These delays extended the contract completion by a total of 167 days. As a result of these delays, Respondent adjusted the total contract price based upon a claim submitted administratively to the Department of Transportation. The parties reached an agreement whereby Claimants would be compensated for their direct costs which could be allocated to the delays. These were based upon the provisions of the Department’s standard specifications for road and bridge construction then in effect, which were part of the contract documents. However, a portion of the administrative claim was not allowed by the Department because the contract documents and specifications do not expressly allow for such expenses. That portion was for general and administrative overhead costs incurred by Claimants during the operation of the construction project which are not directly attributable to the costs on the job. These include such expenses as utilities at home offices, secretarial and office personnel, postage, bookkeeping and accounting, taxes, contributions, and insurance, to name but a few. The total amount of this claim is $504,807.11.

The general rule is that the contractor is bound by the damage provisions of the contract and has no right to additional compensation for delays which prevent the contractor from completing the contract unless the delays are the sole responsibility of the State. (Walsh Construction Co. v. State (1964), 24 Ill. Ct. Cl. 441.) If delays are caused by the State, including delays resulting from bid plans and specifications prepared in error by the State, then the contractor is entitled to damages for his increased costs resulting from the delays. Egizii Electric, Inc. v. State (1978), 32 Ill. Ct. Cl. 93; Warchol Construction Co. v. State (1979), 32 Ill. Ct. Cl. 679.

There was one significant cause for delay. It resulted from two errors made by the State engineers who prepared the plans and specifications, both of which errors were admitted by the State in testimony and in communications received into evidence. These impacted upon the time needed to complete excavation of the roadbed and construction of overpasses.

In order to construct the roadbed for 1-55, the plans called for Claimants to secure dirt from other areas and also to use dirt below the existing U.S. Route 66. The first error by the State in determining the quantity of dirt available to Claimants was in the “shrinkage factor.”

“Shrinkage” occurs when dirt is moved to the construction site from a site away from the construction area. It is dependent upon the type of dirt, the size of the cut from which the dirt is taken and the distance the dirt is transported. The State estimated this shrinkage factor at 15%. The field experience proved that in fact shrinkage was over 30%. Because of the size of the project, this created a demand for much more dirt than was originally provided by the State.

The second error involved use of dirt below the existing U.S. Route 66 roadbed. The plans called for Claimants to utilize this dirt during phases of the project. However, because the contract also required U.S. Route 66 to remain open to traffic during construction of 1-55, this dirt was not available from the areas of U.S. Route 66 adjacent to the construction site as the State plans had anticipated. As a result of both of these errors, dirt for construction had to be found in other areas and transported over longer distances. Not only did the State admit its plans were in error, but it also admitted this shortage of dirt forced Claimants to perform work well beyond the original scope of the contract and further admitted such shortage of dirt could not have been anticipated by Claimants at the time they bid on the contract. Therefore, the delays caused by this problem are solely attributable to Respondent, and Claimants are entitled to damages caused from such delays.

Claimants have also alleged delays caused by what they term drainage errors, an omitted connection, an error in quantities of certain stone, an error in a working day charged against Claimants, and an erosion problem. However, taking the evidence as a whole, the Court finds that these errors were not caused solely by the State but rather should have been predicted by Claimants when they submitted their bid. Claimants failed to produce evidence that these delays were caused by State errors or negligence other than Claimants’ allegations that such was the case. These latter problems contributed 35 days to the total of 167 days’ delay. Therefore, 79% of the total delay, or 132 days, is the sole responsibility of the State.

The State’s position is that only those damages already given administratively for direct costs under the provisions of the standard specifications can be allowed. However, when the delays are occasioned by Respondent, then even these indirect costs, not previously included in any change order issued by Respondent, are recoverable. Pora Construction Co. v. State (1984), 37 Ill. Ct. Cl. 54.

In order to determine the amount of indirect overhead charges attributable to this project, Claimants prorated these expenses as a portion of the total overhead costs for all jobs in progress during the delay time. The total cost for this project was 38.766% of the total of all job costs. We find this to be a fair and reasonable formula of allocation. However, we do not find that all individual claimed items of overhead should be attributable to the indirect expenses. The following items are not reasonably part of overhead which should be included as contributing to expenses for this project:

Contributions $ 1,073.87

Mobilization 40,922.28

Partners intercompany interest 9,376.59

Sales and use taxes 2,089.95

Total $53,462.69

This finding is based upon the testimony of Claimants’ accountant, who prepared the summary of indirect costs and who admitted during cross-examination that he could not connect these expenses in any way to the 1-55 contract.

The total overhead expenses for Claimants during the delay time was $1,302,177.44. Subtracting the above items of $53,462.69, we find that $1,248,714.75 of total overhead costs were incurred by Claimants during the project delay.

The 1-55 project’s portion of the overhead costs in comparison to the total overhead costs for all projects during the delay is 38.766% or $484,076.76. Since 79% of the total delay in the project was caused by the State alone, 79% of $484,076.76, or $382,420.64, is the total amount of the damages due from the State.

Wherefore, it is hereby ordered that the Claimants be, and hereby are, awarded the sum of $382,420.64 in full and final satisfaction of this claim.


author: POCH, J. Poch, J.

text:
    (No. 81-CC-0489
    K.S.M. Sheet Metal Co., a corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 14, 1986.

      Order on objection to petition for rehearing filed April 6, 1987.

    Pessin, Baird & Wells (Stuart I. Pessin, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant K.S.M. Sheet Metal Co. brings this action to enforce a mechanic’s lien claim on a public improvement for the State of Illinois under section 23 of the Mechanic’s Liens Act (the Act). (Ill. Rev. Stat. 1977, ch. 82, par. 23.) Claimant was a sub-subcontractor of F.E. Holmes and Son Construction Co., the general contractor on a project funded by the Illinois Capitol Development Board (CDB). The project involved the construction of a public improvement in Sesser, Illinois. Holmes subcontracted a portion of the project to Illinois Erectors, Inc., which in turn subcontracted roofing work to Claimant. The undisputed amount of the claim is $8,345.45.

In 1978, after Claimant had completed its subcontracting work and because Illinois Erectors had failed to pay Claimant, Claimant filed suit in the circuit court of St. Clair County, Illinois, against Illinois Erectors, Inc. to collect on its contract sum. While this suit was pending, Claimant discovered that CDB was still holding funds due to Holmes. Therefore, on May 8, 1979, Claimant filed with CDB a sworn statement of its claim for lien under section 23 of the Act. Sometime in June 1979, Claimant’s attorney telephoned the office of the project manager for CDB, Thomas McCue, to attempt to ascertain the status of the funds being held by CDB on the project.

Claimant’s attorney testified that McCue advised him that the funds had been paid out in full about one week previously. As a result of that information and having then concluded that further pursuit of the claim for lien against the State was impossible, Claimant’s counsel did not file a suit for accounting against the contractor having the contract with the State (Holmes) and the contractor to whom Claimant furnished its material and labor (Illinois Erectors). No copy of any complaint including the complaint already pending in the circuit court of St. Clair County, was ever served upon CDB. Holmes was not made a party to the circuit court action until April 3, 1980.

McCue testified that, while he does not specifically recall his telephone conversation with Claimant’s counsel, it was his responsibility to only approve vouchers and forward them to the CDB accounting department. It was his practice that, if an inquiry regarding payment was made, he would contact the accounting department to determine whether the voucher had been paid. Evidence from CDB accounting department records disclosed that on June 22, 1979, McCue approved a voucher for payment to Holmes of $44,011.44, which represented the retainage on the Sesser project and which was the final balance due to Holmes. After the voucher reached the CDB accounting department, that department reviewed the voucher against any outstanding lien claims, found the claim filed by Claimant on May 8, 1979, and amended the voucher to provide a payment of $35,665.99 to Holmes and a withholding of $8,345.45, the amount of Claimant’s lien statement. This balance was then held by CDB pending receipt of a certified copy of the complaint for accounting on the lien claim amount. On August 28, 1979, because such complaint had not been received by CDB, a new voucher for $8,345.45 was approved; and on September 12, 1979, that amount was paid by the State to Holmes.

Claimant’s suit was filed in this Court on September 10, 1980. Claimant seeks recovery on the ground that McCue’s alleged misrepresentation that all funds had been paid by CDB in June 1979, notwithstanding the proper filing with CDB of the statement of claim for lien on May 8,1979, excused Claimant from filing the suit for accounting and serving a certified copy of the complaint upon CDB within the time required by section 23 of the Act.

At the time Claimant’s right to claim a lien arose, section 23 of the Act provided that Claimant, as a subcontractor to Holmes:

“. . . may have a lien on the money, bonds or warrants due or about to become due the contractor having a contract with the State under the contract, by filing with the Director, whose duty it is to let such contract, a sworn statement of the claim showing with particularity the several items and the amount claimed to be due on each; but such lien shall attach to only that portion of the money, bonds or warrants against which no voucher has been issued and delivered by the State.
The persons so claiming a lien shall, within sixty (60) days after filing such notice, commence proceedings by complaint for an accounting, making the contractor having a contract with the State and the contractor to whom (claimant was subcontracted), parties defendant, and shall, within the same period notify the Director of the commencement of such suit by delivering to him a certified copy of the complaint filed. ... It shall be the duty of the Director, after the sworn statement has been filed with him, to withhold payment of a sum sufficient to pay the amount of such claim, for the period limited for the filing of suit, unless otherwise notified by the person claiming the lien.
Upon the expiration of this period the money, bonds or warrants so withheld shall be released for payment to the contractor unless the person claiming the lien shall have instituted proceedings and served the Director with the certified copy of the complaint as herein provided, in which case, the amount claimed shall be withheld until the final adjudication of the suit is had.. . .
Any officer of the State . . . violating the duty hereby imposed upon him shall be liable on his official bond to the claimant serving such notice for the damages resulting from such violation, which may be recovered in a civil section. . . .” Ill. Rev. Stat. 1977, ch. 82, par. 23.

It is not disputed that CDB, upon receipt of Claimant’s notice of claim for lien, withheld from Holmes “a sum sufficient to pay the amount of such claim for the period limited for the filing of suit.” The claim was served upon CDB on May 8, 1979. The Act required that CDB therefore hold the sum ($8,345.45) for 60 days, or until at least July 7, 1979. In fact, CDB held the sum until August 28,1979, since the practice by the CDB accounting department at that time was to withhold any sum claimed due by notice of lien for at least 90 days to allow for adequate notice of the required suit for accounting. No suit for accounting was filed by Claimant during the time required. Claimant argues that, because McCue told Claimant’s attorney in June 1979 that all funds had been paid, the State is estopped from raising as a defense the failure of Claimant to perfect its lien by filing suit and serving a certified copy on CDB within the 60-day statutory period. This argument must fail.

While Claimant’s attorney was uncertain as to the exact date in June 1979 he spoke with McCue, it is clear that it was at least three weeks after the service of the notice of Claimant’s lien, which occurred on May 8, 1979. Therefore, when Claimant’s attorney was told at that time in June that CDB had disbursed all the Sesser project funds in full about one week before the phone call (if such had been true), Claimant still had a remedy available under the statute — namely, suit against the appropriate State officer on his official bond — because such disbursement would have occurred within 60 days after the service of notice. However, Claimant’s duty at that time in order to perfect its lien and then to avail itself of its statutory remedy, was to file its suit for accounting and serve a certified copy of its complaint, all in a timely manner. Failure to do so not only eliminated the remedy on the official’s bond which it could have pursued under the facts it mistakenly believed existed (see Wilbur Waggoner Equipment Rental & Excavating Co. v. Johnson (1975), 33 Ill. App. 3d 358, 342 N.E.2d 266), but also ironically eliminated the lien against the public funds still actually being held by CDB, as the lien becomes void if the accounting suit is not filed and served within the statutory time.

The Act is to be strictly construed, and the failure of Claimant to abide by its provisions results in the loss of any rights to a lien and of all remedies under the Act. (D.D. Kennedy, Inc. v. Lake Petersburg Association (1964), 54 Ill. App. 2d 85, 203 N.E.2d 145.) The Court finds that it was the failure of Claimant to file its suit for accounting and thereby preserve its lien, and not any action by the Respondent, which caused Claimant’s lien rights in the Sesser project funds to be lost.

Based on the foregoing, it is hereby ordered that this claim be and hereby is denied.

ORDER ON OBJECTION TO PETITION FOR REHEARING

Poch, J.

This cause coming on to be heard upon the Respondent’s Objection to Claimant’s Petition for Rehearing and the Court being fully advised in the premises finds this petition to be denied.


author: Patchett, J.

text:
    (No. 81-CC-0547
    Paul W. Tedder, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 8, 1987.

    Paul W. Tedder, pro se, for Claimant.
    Nett. F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

The Claimant in this case was an inmate in an Illinois penal institution. He brought this action to recover the value of certain items of personal property which he allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State of Illinois is liable as a bailee for the return of that property.

This Court has held in Doubling v. State, 32 Ill. Ct. Cl. 1, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property. An example of this would be the transfer of an inmate between penal institutions or when the institution issues a receipt for certain property.

Bailment is ordinarily a voluntarily contractual transaction between bailor and bailee. However, various types of constructive or voluntary bailments have been recognized. An example arose in the case of Chesterfield Sewer & Water, Inc. v. Citizens Insurance Co. of New Jersey, 57 Ill. App. 2d 90, 907 N.E.2d 84. In Chesterfield, the Court quoted from another case, Woodson v. Hare, 244 Ala. 301, 13 So.2d 172, 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of going forward with the evidence to the bailee. Bell v. State, 32 Ill. Ct. Cl. 664; Bargas v. State, 32 Ill. Ct. Cl. 99; Romero v. State, 32 Ill. Ct. Cl. 631; Moore v. State (1980), 34 Ill. Ct. Cl. 114.

The facts in this case indicate that the Claimant was taken to the segregation unit without his personal property. After being placed in the segregation unit, he inquired about his property. When he finally received that property, he found that his radio was missing. Correctional officers were unable to determine the whereabouts of the radio.

However, the Claimant was unable to obtain a sworn affidavit from his cellmate who, the Claimant advised, would have testified that the radio was given to an unidentified correctional officer.

Since the Claimant was unable to obtain such an affidavit, he was unable to establish by any evidence that his missing personal property ever came into exclusive possession of the Respondent’s correctional officers. Therefore, the burden of going forward with the evidence did not shift to the Respondent. Because of these facts, the Claimant’s claim should be denied.

Therefore, this claim is hereby denied.


text:
    (No. 82-CC-0222
    Herbert Nance, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 8, 1987.

    Herbert D. Nance, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This case comes on for hearing on a claim for damages regarding a stolen automobile. The Claimant claimed that his car was stolen the night of October 22, 1980, by two youths who escaped from the Dixon Springs Correctional Center. The youths were apprehended in Springfield, Illinois, and the Claimant’s car was found not far from the apartment where the boys were apprehended.

The Claimant sought damages in the sum of $717.66 for damages to his automobile. The amount of damages to his car was not seriously contested.

However, at the hearing held on July 14, 1982, the Claimant clearly failed to meet his burden of proof that the State was negligent. A long line of cases in this Court require that there be proof of the State’s negligence before an award can be made. The State is not an insurer, and there is no absolute liability in the case of escaped prisoners. See American States v. State, 23 Ill. Ct. Cl. 47; Voll v. State, 33 Ill. Ct. Cl. 201; and Paulus v. State, 24 Ill. Ct. Cl. 215.

For the reasons stated above, we hereby deny this claim.


text:
    (No. 82-CC-0243
    Randy Gatlin, Individually, and Kathleen Gatlin, as Mother of Travis Gatlin, Claimants, v. The State of Illinois, Respondent.

      Opinion filed November 21, 1985.

      Order on motion seeking interest filed November 24, 1986.

    Armstrong Law Offices (Tad Armstrong, of counsel), for Claimants.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises from an automobile accident which occurred on May 22, 1981, in Madison County, Illinois. Claimant, Randy Gatlin, alleges he and his minor son, Travis Gatlin, were injured when Claimant’s automobile struck a pile of gravel which covered the width of the roadway and which had been placed there by the Illinois Department of Transportation (IDOT). Claimant alleges the State was negligent for failing to properly warn motorists of the existence of the gravel pile. The claim for the injuries to Travis is brought through Kathleen Gatlin, Travis’ mother. Kathleen and Randy Gatlin are divorced, and Kathleen is the custodial parent. This claim was heard before a Commissioner of this Court.

Claimant testified that about 10:00 p.m. on May 22, 1981, he was driving north on Illinois Route 111 near Pontoon Beach, Illinois. He and his son, Travis, age four years, were returning from a miniature golf course and were on the way home. Claimant’s intention was to turn east onto an intersecting road known as Chain of Rocks Road, which led to Claimant’s home. Route 111 is a four-lane highway divided by a grassy median. The speed limit was 55 miles per hour. Claimant was driving in the lane nearest the median. Claimant testified that another vehicle, whose identity was unknown to Claimant, came up rapidly on the right of Claimant and stayed on Claimant’s side, thereby preventing Claimant from getting into the right lane in preparation for his right turn onto Chain of Rocks Road. Although Claimant slowed his vehicle, the second vehicle continued to slow along with Claimant and to block the right lane. Finally, Claimant increased his speed enough to pull in front of the second vehicle. By this time, however, Claimant was too close to the intersection to safely turn right at the speed he was traveling and thus continued past the intersection.

Route 111 changes from a four-lane divided roadway to a normal two-lane roadway north of the Chain of Rocks Road intersection. At the point where the merge occurs, a service road connects with the northbound lanes of the four-lane divided highway in such a fashion that, if a northbound vehicle fails to merge left into the two-lane roadway but rather proceeds straight ahead, he will cross onto the service road, which then lies parallel to the two-lane portion of Route 111. The service road was the old Route 111 roadway until the present roadway was constructed in 1963. This old roadway presently serves as an access for farmers to get into their fields lying on the east side of the State right-of-way.

Claimant testified that, after he passed the intersection of Chain of Rocks Road on Route 111, the other car pulled alongside and slightly forward of Claimant’s car in the inside lane. As the two vehicles approached the lane reduction, this second vehicle forced Claimant’s car onto the old service road. Claimant continued along on this road in the hopes that there would be an exit off this road somewhere ahead onto Route 111, where he could then drive back to the intersection with Chain of Rocks Road. Instead, Claimant’s car struck a pile of dark gravel which was several feet in height and covered the width of the service road. Claimant testified that, because of the gravel and the surface of the road were the same color, he was unable to see the gravel until just before his car struck it. The impact caused both Claimant and his son to be thrown about inside the car, and both were injured.

There were no signs of any kind before or after entering the service road which warned that the service road was not a through roadway or which warned of the gravel pile. The lane reduction was clearly marked and signed, and Claimant admitted he knew the service road was not part of Route 111.

Employees of IDOT testified that the gravel was kept at the end of the service road as a convenience for highway maintenance crews and was used for highway repair work. They further testified that no signs had been placed to warn motorists that the service road was not a through roadway or to warn of the existence of the gravel because IDOT considered the service road to be like a private driveway. IDOT had, however, posted “no parking” signs on the service road.

IDOT testimony also claimed that there was no type of sign in its manual which applied or could have been used prior to the date of the accident to warn motorists about the gravel pile or which applied because the old roadway was a service road. Nevertheless, shortly following the date of the accident, IDOT posted a “deadend” sign and “road closed ahead” sign at the entrance to the service road and a “road closed” sign with reflectors in front of the pile of gravel. Such evidence is relevant and admissible on the issue of whether alternative measures of safety are available. Sutkowski v. Universal Marion Corp. (1972), 5 Ill. App. 3d 313, 281 N.E.2d 749.

Claimant testified that his car was traveling 40-45 miles per hour when he noticed the gravel pile. He immediately applied his brakes but was unable to reduce the car’s speed appreciably. Claimant’s car hit the pile and stopped partly up onto the south face of the pile with.the front of the car facing upwards at an angle. Claimant and Travis got out of the car and walked a short distance along Route 111 before they were picked up by a motorist, who drove them to Oliver Anderson Hospital in Maryville, Illinois. Claimant was admitted for treatment, and Travis was X-rayed and treated in the emergency room. Claimant telephoned a towing company to arrange to have his damaged car towed to a local garage. The tow truck operator first notified the Illinois State Police of the accident. Claimant testified that the investigating police officer interviewed Claimant at the hospital and that Claimant told the officer the same story about the other vehicle forcing him off Route 111 onto the service road.

Illinois State Trooper Cernkovich testified that he was dispatched to investigate the accident. When he arrived at the scene, Claimant’s car was resting north of the gravel pile. The tracks of the car indicated it had gone up the south side of the gravel pile, which was 4 to 5 feet high, become airborne, and landed on the north side, where it came to rest. The pile’s length was about 12 to 15 feet.

Cernkovich further testified that he interviewed Claimant the next day in the hospital. Claimant told Cernkovich Claimant had missed the turn at the Chain of Rocks Road intersection and had continued on to the service road. Claimant was looking in his rearview mirror when his car struck the gravel pile. Cernkovich, who had no independent recollection of the investigation and therefore testified from his report, stated that Claimant told him nothing about trouble with another vehicle. Cernkovich estimated the distance from the service road entrance to the gravel to be 400 to 500 feet. On cross-examination Cernkovich stated that the surface of the service road was weathered concrete and was almost the same color as the gravel pile.

In Hout v. State (1966), 25 Ill. Ct. Cl. 301, Claimant Hout suffered damage to his vehicle when he struck a rock pile which had been placed by the State across an abandoned section of highway which was accessible to traffic on the south end by a graveled connection about 50 feet long to the new highway. The abandoned section of roadway was then used as a local access road. No signs warning of the rock pile or of the fact that the road was not a through roadway were present. In fact, all signs of any kind had been removed from the old roadway. In finding for Claimant, this Court stated:

“There is no question but that respondent was negligent in placing a large pile of gravel across the width of a cement highway, little used as it may have been, without any warning signs, lights, or signals. This Court has long held that ‘although the State is not an insurer of the safety of persons in the lawful use of the highways, it is nevertheless under a duty to give warning by the erection of proper and adequate signs at a reasonable distance of a dangerous condition of which the State had notice either actual or constructive.’ ”

The State argues that, because there were signs adequately directing traffic that Route 111 no longer ran over the service road, this was sufficient. However, such signs gave no warning that the service road was not a through roadway, nor did such signs in any way warn of the danger presented by the gravel pile. (Mammen v. State (1959), 23 Ill. Ct. Cl. 130.) “A prudent and careful driver could not reasonably anticipate (the pile of gravel) in the darkness in the absence of warning signs or signals. Instead, he could reasonably assume that the cement highway would not end abruptly without warning.” (Hout, supra, at 304.) By placing “no parking” signs on the service road, the State allowed the Claimant and any other traffic to reasonably assume that the roadway was open to traffic, absent other warnings.

The State also argues that, given the discrepancies between the testimony of Claimant and that of Officer Cernkovich, it is reasonable to assume Claimant was speeding or “drag racing” with the other vehicle and drove onto the service road when he missed his turn because of this illegal activity. There is no evidence that Claimant was doing anything illegal while he was on the service road itself, and it is irrelevant why Claimant entered the service road, as it was not illegal to do so.

Even if Claimant’s car went over the gravel pile and came to rest on the north side, this is not in itself evidence that Claimant was speeding, as Claimant’s own testimony was that he had insufficient time to brake by the time he first saw the gravel pile. Moreover, if Claimant was looking in the rearview mirror when he struck the pile, because the pile was not visible at night and because the State had failed to warn Claimant to be alert for the pile on the roadway, such action by Claimant was not negligence on his part, but rather a normal action by a driver under what appeared to be normal roadway conditions.

As a result of the accident, Claimant received a broken kneecap which healed without incident or disability. Travis, his son, suffered injuries to his teeth, which were not permanent in nature.

Claimant, Randy Gatlin, is hereby awarded the sum of ten thousand ($10,000.00) dollars and Kathleen Gatlin, mother of Travis Gatlin, as custodian parent and guardian is awarded the sum of twelve hundred ($1,200.00) dollars.

ORDER ON MOTION SEEKING INTEREST

Poch, J.

This cause coming before the Court on Claimant’s motion seeking interest. On November 21,1985, the Court entered awards totaling $11,200.00 to the Claimants.

The Court finds that Claimants’ request for interest is denied for the reason that the Illinois Supreme Court has held that interest is only recoverable against the State if it is specifically provided in a statute. City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 413 N.E.2d 304.


text:
    (No. 82-CC-0775
    Edward Harbour, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 25, 1986.

    Edward Harbour, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (John R. Buckley, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This is a claim filed by a resident of the Stateville Correctional Center requesting monetary damages for the alleged failure, of the Department of Corrections to follow medical orders with respect to his diet and requesting an order directing the Department of Corrections to follow all future medical orders with respect to Claimant.

Claimant seeks to recover the sum of $15,000.00 for medical and mental damages due to the refusal of Respondent to follow doctor’s prescribed orders. Claimant has cancer and the doctor had prescribed that Claimant be given six (6) cans of a diet supplement called ENSURE. The record discloses that after a tonsillectomy in September 1979, the tonsillar material was found to be cancerous. The record also discloses that since 1979 Claimant has had many medical problems, some quite serious in nature. By-products of the cobalt treatments Claimant received were that his upper teeth became loose and had to be extracted, his salivary glands were burned so that he must continually carry liquid with him, and he has degenerative arthritis.

Claimant became involved in a dispute with the institution’s food service director, Mrs. Morrison, over the availability of ENSURE, a nutritional supplement, and therefore this suit was filed.

It appears from the testimony taken at the hearing in this matter that ENSURE is no longer an issue in this case. Claimant’s present area of concern is that because breakfast is served at 4:30 a.m., he eats only two meals a day, namely, lunch and supper, and buys extra food out of his own funds. At the hearing, Claimant introduced as evidence Exhibit 1, which was a list of foods purchased by him from October 7, 1982, through February 19, 1986, and asks to be reimbursed for these purchases in the approximate amount of $300.00.

A Departmental Report, dated March 5, 1986, and introduced into evidence as Respondent’s Exhibit 1, disputes that Claimant is in need of food over and above that furnished by the institution.

It appears from the evidence that for some unexplained reason, Claimant did not see fit to eat breakfast at the time it was served at the institution.

The Commissioner’s Report in this matter calls attention to the fact that the Unified Code of Corrections specifically provides that all institutions and facilities of the Department of Corrections shall provide every committed person with a wholesome and nutritional diet at regularly scheduled hours.

The jurisdiction of the Court of Claims is set forth in section 8 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8), which provides, in part, as follows:

“§8. The Court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the State founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency, other than claims arising under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act, or claims for expenses in civil litigation.”

Claimant in fact is asking that the Court of Claims set itself up as a supervisory body to monitor the Department of Corrections’ compliance with the statutory provisions for feeding inmates. It is the opinion of this Court that the Court of Claims does not have the power to issue orders to the Department of Corrections as to the diet to be served inmates.

It is the Court’s further opinion that Claimant has failed to prove his case. Claim denied.


author: Sommer, J.

text:
    (No. 82-CC-1723
    Tyrone Johnson, Claimant, v. The State of Illinois, Respondent.

      Order filed April 15, 1987.

    Jerald A. Lavin, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Ralanda Webb, Assistant Attorney General, of counsel), for Respondent.
    John J. Treacy, for Intervenor McKeown Transportation.
   Sommer, J.

This cause comes on to be heard on the parties’ joint settlement stipulation and request for the Court’s approval, due notice having been given, and the Court being advised;

On January 28, 1987, the parties to this action filed a joint settlement stipulation requesting our approval of an award in satisfaction of this claim. In pertinent part the parties stipulated as follows:

1. This is a tort action brought by Claimant, Tyrone D. Johnson, pursuant to sections 1 through 24 of the Court of Claims Act (Ill. Rev. Stat., ch. 37, pars. 439.1 through 439.24).

2. On or about May 3,1983, McKeown Transportation Co., on behalf of CNA Insurance, filed a petition to intervene pursuant to the Workers’ Compensation Act.

3. On or about October 1, 1980, Claimant was driving a tractor-trailer vehicle on Interstate 57 in Iroquois County, Illinois, where, he alleged, he hit a road defect which caused him to be thrown about the cabin of the vehicle.

4. As a result of this incident, he suffered a herniated disc and thereby incurred damages in excess of the following amounts:

A. Medical treatment — $ 7,142.81

B. Loss of income — 26,000.00 (annually)

The most recent medical evaluation indicates that Claimant sustained permanent partial loss of use in both legs as a result of the incident.

5. A sum in the amount of $39,141.33 was paid to, or on behalf of Claimant, pursuant to the provisions of the Illinois Workers’ Compensation Act.

6. Claimant-Intervenor agrees in order to facilitate settlement of this claim without further trial to release Respondent from any and all liability. ClaimantIntervenor agrees that the amount of settlement is fair and reasonable and compromises its statutory lien, accepting in lieu thereof, the portion of the settlement agreed upon by the parties.

7. The Claimant, through his attorney, Jerald A. Lavin, and the Respondent, through its attorney, Neil F. Hartigan, Attorney General of Rlinois, by Ralanda Webb, Assistant Attorney General, hereby stipulate, in compromise of the above-stated claim, to the entry of an award of fifteen thousand ($15,000.00) dollars in full satisfaction of this claim.

This Court is not bound by such agreements but it does not choose to interpose controversy where none appears to exist. We will approve the settlement.

Wherefore, it is hereby ordered that an award of $15,000.00 (fifteen thousand dollars and no cents) be, and hereby is awarded in this matter in full and final satisfaction.