text:
    (No. 5894
    George R. Hammond, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 16, 1977.

    Suekoff & Silverman, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Polos, C. J.

This action is a claim against the State for time unjustly served in a prison of this State, brought pursuant to Ill.Rev.Stat. Ch. 37, §439 8(c). On February 20, 1964, Claimant, George Hammond, was convicted by a jury in the Circuit Court of Cook County of attempted robbery, and sentenced to a term of 10 to 12 years in the Illinois State Penitentiary. A notice of appeal was filed on February 27, 1964, but was dismissed on April 25, 1967. On February 2, 1968, the State’s Attorney of Cook County, Illinois, procured an order from the Circuit Court forfeiting Claimant’s appeal bond, and a capias issued for his arrest.

On February 14, 1968, Claimant was arrested and incarcerated in the Cook County Jail. On March 22, 1968, Claimant was transferred to the Illinois State Penitentiary in Joliet and remained there until June 8, 1968, when he was released on bond pending his appeal which had been reinstated by his new counsel. Claimant remained free on bond thereafter, and on October 8, 1969, his conviction was reversed without remand by the Illinois Appellate Court, First District.

This cause is to be decided under the provisions of Section 8 of the Court of Claims Act as in effect prior to its amendment by Public Act 77-2089, effective October 1, 1972. That section provided, in pertinent part:

... §8. The Court shall have exclusive jurisdiction to hear and determine the following matters: ...(c) All claims against the State for time unjustly served in prisons of this State where the persons imprisoned prove their innocence of the crime for which they were imprisoned ... provided, the court shall make no award in excess of the following amounts:... for imprisonment of five years or less, not more than $15,000 . ..

The burden, therefore, rests upon Claimant to establish, by a preponderance of the evidence, that he was innocent of the "fact” of the crime for which he was convicted, and the amount of damages to which he is entitled. See Tate v. State, 25 Ill.Ct.Cl. 245; Pitts v. State, 22 Ill.Ct.Cl. 258.

As this Court said in Dirkans v. State, 25 Ill.Ct.Cl. 343, 347, in construing Section 8(c) of the Court of Claims Act prior to its amendment:

It is the studied opinion of this court that the legislature of the State of Illinois in the language of Ch. 37, §439.8(c), Ill.Rev.Stat., intended that a claimant must prove his innocence of the "fact” of the crime. It was not, we believe, the intention of the General Assembly to open the treasury of the State of Illinois to inmates of its penal institutions by the establishment of their technical or legal innocence of the crimes for which they were imprisoned.

Claimant testified, as he did at his criminal trial, that in the early morning hours of September 30, 1963, he observed a man who appeared to be drunk standing at the intersection of Union Avenue and 63rd Place, in the City of Chicago. He said that he also noticed three young men in the vicinity. Claimant said that he approached the man to warn him of a possible robbery attempt by the three youths when the man pulled a gun and pointed it at him. Another man suddenly ran towards him, and he fled. The two men were police officers in plainclothes, and they captured Claimant and charged him with attempted robbery.

William O’Brien, a Chicago Police Officer, was the man whom Claimant approached on the morning of September 20, 1963. O’Brien testified that an individual attempted to rob him by brandishing a knife at his throat, and that he was assisted by two black youths named Nielson and Jackson. O’Brien said that when he announced that he was a police officer and drew his gun, all three assailants fled the scene. Claimant was apprehended by O’Brien with the assistance of one of his partners who had been waiting in a nearby squad car. They subsequently arrested two other youths and charged all three with participating in the attempted robbery.

O’Brien said that he subsequently returned to the scene of the incident and found a knife in the street. He said that he marked it with his initials and caused it to be inventoried and sent to the Evidence and Recovered Property Section of the Chicago Police Department. No fingerprints were taken from the knife.

Neither of the two officers who assisted O’Brien in arresting Claimant testified for Respondent, as they were not in a position to observe the incident.

Thus, we are faced with a problem of credibility. Claimant has testified to one version of the facts, and Respondent, through Officer O’Brien, presented directly contradictory testimony.

The Court notes, however, that O’Brien’s testimony that he inventoried the knife is in conflict with his testimony at Claimant’s criminal trial, where he stated that he kept the knife in his personal possession between the incident and the criminal trial. Also, in reversing Claimant’s conviction, the Appellate Court stated, "The actual sequence of events immediately and during the alleged robbery attempt is not altogether plausible as related by O’Brien.”

More significantly, Officer O’Brien testified at the hearing herein that he is presently unable to identify the individual who allegedly attempted to rob him on the morning of September 20, 1963. Claimant’s testimony that he did not attempt to rob Officer O’Brien thus stands uncontradicted on this record, as O’Brien was unable to identify Claimant as a participant in the robbery.

We, therefore, conclude that Claimant has established, by a preponderance of the evidence, his innocence of the "fact” of the crime with which he was charged.

As a result of his conviction, Claimant was incarcerated in the Cook County Jail from February 14, 1968, to March 22, 1968, and in the Illinois State Penitentiary from March 22, 1968, to June 28, 1968. He was employed at the time of his incarcerations and claims a wage loss of $2,783.20, as well as substantial out-of-pocket expenses related to the defense and appeal of the conviction, including attorney’s fees.

We do not consider attorney’s fees, and other costs incurred by Claimant in defending and appealing his conviction, to be proper elements of damage in this action. The action for wrongful imprisonment is wholly a creature of statute, and we think it clear that the Legislature intended to compensate one unjustly imprisoned only for the damages directly flowing from the imprisonment, not from the fact that one is charged or convicted with a crime.

Claimant is therefore awarded the sum of Eight Thousand Five Hundred Dollars ($8,500) as compensation for his unjust imprisonment.


source: Caselaw Access Project

author: Spivack, J.

license: Public Domain

text:
    (No. 5907
    Math Mike Rajnovich, Et Al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1977.

    Deutsch and Levy, Attorneys for Claimants.
    William J. Scott, Attorney General; Martin A. Soll, Saul R. Wexler, William Karaganis, and Peggy Bastas, Assistant Attorneys General, for Respondent.
   Spivack, J.

Claimants each seek to recover from the State of Illinois the sum of $25,000 for personal injuries allegedly sustained as a result of Respondent’s negligence, whereby Claimant Rajnovich’s decedent was killed and Claimant Doyle severely and permanently injured.

The cause was assigned to Commissioner J. P. Griffin who heard testimony and received the evidence on January 21, 1975. In due time, the Commissioner filed with the Court his report, the transcripts of the testimony and argument, various exhibits and the parties’ briefs and arguments. Neither party requested oral argument before the full Court, and the matter is now before us on the record as presented.

The pertinent facts adduced by Commissioner Griffin from the testimony of Claimant Doyle, of Claimant Rajnovich, of Robert Bennett, and from the evidence deposition of James A. Glenos, as well as from the pleadings and exhibits admitted into evidence, are in summary as follows:

On August 23, 1969, at about 7:45 a.m., Claimant Doyle and decedent Rajnovich were operating their motorcycles in a northerly direction on Interstate 94. At Toll Plaza 25, they paid their toll and requested and received permission from the attendant to park their motorcycles and to rest in a grassy area adjoining the toll booth. They proceeded to an area approximately 15 feet east of the paved portion of the highway where they chained their vehicles and went to sleep under some bushes. The weather was warm and clear and the pavement dry.

At about this time, Private James A. Glenos was operating a National Guard truck northerly on Interstate 94 at a speed of 45 m.p.h. When he was within 200 yards of the toll booth, he applied his brakes but they failed; when he was within 75 feet of the booth, his speed had reduced to about 20 m.p.h. and he pulled the handbrake, however, it too failed to stop the vehicle. At the last minute, to avoid striking an automobile parked at the toll booth, he veered off the highway, striking the sleeping men in the bushes whom he did not see and could not have seen.

As a result of this tragic occurrence, Rajnovich was killed and Doyle sustained diverse injuries, including broken bones and soft tissue damage.

The testimony indicates that shortly before the occurrence, prior to taking the truck from the National Guard Compound, Glenos "inspected” the vehicle. Specifically, he tested the foot brakes by stopping and starting, and they appeared normal; he tested the lights, wipers, horn and tires, and they all were normal and operational; he did not test the handbrake except to disengage it from its locked position upon start-up.

An inspection of the vehicle following the accident showed that the brake failure was caused by loss of brake fluid caused by a broken brake line elbow, which in turn resulted in a misaligned brake line which caused unusual stress at the elbow. Additionally, the inspection indicated that the handbrake held only on the last notch.

The evidence further proved that the vehicle, a 2-1/2 ton M-135 Cargo truck, was the property of the United States, although issued to the Illinois National Guard for its use and was at the time of the occurrence being used for Federal rather than State purposes.

At the time of his death, Math Jack Ragnovich was 22 years of age. He left surviving him his father, mother and minor son, Michael Jack James Rajnovich. Funeral, cemetery and related expenses, including estate expenses, totalling $1,816.40 were advanced by the father. Although decedent was a skilled mechanic, his most recent earnings were meager and the amount of his actual contribution to the support of his minor son questionable. Decedent’s motorcycle, which was a total loss, had a market value of approximately $1,900.00.

Claimant Doyle was also 22 years of age at the time of the occurrence. As a result of his injuries, his medical, hospital and related expenses, all of which were reimbursed by insurance, amounted to approximately $600.00. His motorcycle, totally destroyed, had a market value of about $1,500.00. Claimant’s average earnings were $150.00 per week and he was unable to work for a period of six and one-half months following the accident.

At the outset, we are confronted by the argument of the State, which it characterizes as "jurisdictional”: that regardless of the actual question of negligence, the Claimant ought not to prevail since at the time of the occurrence, the vehicle was on a Federal, rather than State, mission. Thus, argues the State, the Claimant’s proper remedy, whenever the National Guard is called to active duty under Title 10, U.S. Code or to inactive training under Title 32, U.S. Code, is to proceed against the Federal Government, pursuant to applicable provisions of either the Federal Tort Claims Act or the National Guard Claims Act. Each such Act contains a two year Statute of Limitations. Citing Speer v. State, 27 Ill.Ct.Cl. 188; McRaven v. State, Court of Claims No. 5586, Dobbs v. State, Court of Claims No. 5312.

In order to properly dispose of the State’s first contention, it is necessary to understand the chronology of the material facts: (i) the event giving rise to the claim occurred on August 23, 1969; (ii) the instant claim was filed on August 24, 1970; (iii) the Speer case, supra, which was the case of first impression in this Court on the issue, was entered on April 27, 1971 (four months before the expiration of the limitations section of the federal statutes); (iv) the State filed its Motion to Dismiss on December 13, 1971 (four months after the Federal statute had tolled); (v) on February 9, 1972, having received no objection to the State’s Motion to Dismiss, this Court dismissed the cause; (vi) Claimants filed their Motion to Vacate and Reinstate on November 16, 1972, to which no objections were filed by the State; (vii) on December 1, 1972, and again on December 11, 1972, the State confirmed to this Court that it had no objections to affording Claimants a hearing on the merits; (viii) on January 9, 1973, this Court entered its Order vacating the prior dismissal and reinstating the cause.

The State now contends that the prior Order of January 9, 1973, vacating the dismissal of February 9, 1972, and reinstating the cause did not address itself to the issue before us and that in any event, Speer stands for the proposition that the issue is jurisdictional and can accordingly be raised at any time. We disagree. It is clear from the record, and from the information given this Court by the State on December 1, 1972, and again on December 11, 1972, that this is the precise issue considered by all parties and determined by the January 9, 1973, Order of Reinstatement. We can only speculate that the rationale behind the State’s position heretofore expressed on December 1, 1972, and December 11, 1972, was that, by waiting eight months following Speer before it filed its original Motion to Dismiss, the State equitably shared in the fault of Claimants in not pursuing in a timely fashion their Federal remedies and ought not benefit thereby.

We likewise disagree with the State’s interpretation of Speer, and the line of cases following, as standing for the proposition that the issue goes to this Court’s jurisdiction. To the contrary, we support the holding of Speer which finds that the issue simply creates a valid defense to the claim. At page 189, the Court stated, "Since they (National Guard members on a Federal mission) are not, at these times, performing a State function, any tort committed . . . would not constitute a tort by the State and no liability would ensure thereby. ...” To summarize, since the matter is not jurisdictional, we find that the State’s first argument is moot, it having been already decided by this Court on January 9, 1973. Parenthetically, it is our view that the Order then entered was based upon sound equitable principles in light of the specific facts presented and in no way modifies the law as enunciated in Speer and subsequent cases.

It now remains to decide the case on its merits and in accordance with applicable and well-established law.

It is the burden of Claimants to prove by a preponderance of the evidence that (i) they were free from contributory negligence, (ii) that the State was negligent, and (iii) that the State’s negligence was the proximate cause of the accident and of Claimant’s injuries and damages.

It is our opinion that Claimants have in fact proven, by a preponderance of the evidence, that they were free from contributory negligence. Their act of leaving the paved portion of the highway to rest in an unpaved grassy area, 15 feet from the edge of the road, with the knowledge and consent of the toll booth operator, did not violate their duty of ordinary care for their persons and property. No reasonable person could have anticipated that their resting place would be in the path of a vehicle which had driven off the highway.

On the question of the State’s negligence, Respondent devotes a considerable portion of its argument to the proposition that Glenos was not negligent in driving off the highway and over the Claimants inasmuch as he could not have reasonably anticipated their presence in the bushes. In other words, that one of the necessary elements of negligence, foreseeability, was absent. We did not quarrel with the rationale of the cases on foreseeability cited, i.e., Cunis v. Brennan, 56 Ill.2d 372; Barnes v. Washington, 56 Ill.2d 22; Winnett v. Winnett, 57 Ill.2d 7. We believe, however, that Respondent misapprehends the negligent acts of the State in regard to which Claimants have sustained their burden of proof.

The evidence establishes that the proximate cause of the State’s vehicle leaving the highway was that the driver, Glenos, was responding (arguendo,reasonably) to the failure of his foot brake and emergency brake to stop the vehicle. If these failures were due to a latent defect, then ordinary care, maintenance and inspection would not have disclosed such impairments and the brakes’ failures and subsequent proximate results would have been unavoidable and not compensable under any negligence theory. On the other hand, if the defects were patent, that is, known or reasonably discoverable, then the State breached its duty of ordinary care by not correcting the condition if known, or not discovering it if ordinary care would have disclosed it.

It is a legally insufficient defense for the State to simply prove a brake failure. Respondent has the additional burden of proving by a preponderance of the evidence that the defects were latent. Savage v. Blancett, 47 Ill.App.2d 355. In view of the evidence here that the brake line elbow rupture was caused by a misaligned brake line (which would have been apparent had it been examined prior to the accident as it was following the occurrence), that the emergency brake only held on the last notch, and that the emergency brake was in no wise tested before the fateful journey, we find that Respondent has failed to prove by a preponderance of the evidence that the defects giving rise to the brake failures were latent. To the contrary, we are of the opinion that each of the defects was patent and should in the exercise of reasonable care have been detected and remedied. The failure to so detect and remedy was negligent on the part of the State.

Respondent argues that Savage is only applicable if defendant alleges the latent defect as an affirmative defense. We do not agree. Although in Savage a special defense was filed, the rationale of the decision is in no way concerned with the parties’ burdens of proof as related to the pleadings. We do not believe that the defendant has a lesser substantive burden of proof if he fails to file an affirmative defense than if he had so filed. To so hold would be an absurdity.

Respondent then argues that McKinsey v. Morrisey, 12 Ill.App.3d 156, limits the holding in Savage. Again, we do not agree. In McKinsey, the Court simply held that defendant’s burden of proof was never presented to the jury and thus the "doctrine of latent defects” was never decided. Further, the facts in McKinsey, superficially similar to the case at bar, are critically different in one major area. In that case, defendant testified that the brakes had been repaired just one week before the accident. Thus, even without an instruction, the jury apparently concluded that the brake failure was as far as defendant was concerned a latent and not a patent defect.

There is no real question here that the Claimant’s injuries were proximately caused by the accident which was in turn proximately caused by the brake failure.

We conclude therefore that Claimants have sustained their required burdens of proof relative to freedom from contributory negligence, negligence of the State, and proximate causation.

On the question of damages sustained by the decedent’s minor son, Respondent argues that decedent’s poor work habits and sketchy support contributions rebut the legal presumption of substantial damages. We believe that this presumption of substantial loss, even without proof thereof, long the law of this State, Jadlowski v. State, 26 Ill.Ct.Cl. 66, is well considered. As applied to the instant facts, does the fact that a 22 year old is not adequately assuming his responsibilities prove that he will not in the future? Common sense and the wisdom born of years tells us otherwise. Also, it is to be remembered that the law recognizes and enforces the father’s duty to support his child, even if the father’s predilections are otherwise. We do not therefore believe that the equitable and legal presumption of substantial financial loss to a minor for the wrongful death of his father without specific proof thereof has been rebutted by the evidence before us.

Claimant, Math Mike Rajnovich, Administrator of the Estate of Math Jack Rajnovich, is therefore awarded the sum of Twenty-Five Thousand Dollars ($25,000.00) to be distributed in the following manner:

(1) To Math Mike Rajnovich, as reimbursement for funeral, estate and related expenses, the sum of $1,816.40;

(2) To the estate of the decedent, as and for property damage, the sum of $1,900.00; and

(3) To the guardian of the minor, Michael Jack James Rajnovich, in trust for the care and education of said minor, the sum of $21,283.60.

Claimant, Donald F. Doyle, Jr., having sustained damage to his person and property in the sum of $16,000.00 and having been reimbursed in the sum of $600.00 which amount is therefore deducted in accordance with the Rules of this Court, is therefore awarded the sum of Fifteen Thousand Four Hundred Dollars ($15,400.00).


author: Holderman, J.

text:
    (No. 5942
    Allison Wells, Claimant, vs. State of Illinois, and The Board of Trustees of Southern Illinois University, Respondent.

      Opinion filed March 17, 1977.

    James Thomas Demos, Attorney for Claimant.
    Robert L. Artz, Attorney for Respondent.
   Holderman, J.

The uncontested facts of this case are that on January 6, 1970, Allison Wells, female, age 20, a student at Southern Illinois University, was walking close to the edge of the public sidewalk in front of the Life Science Building at the University when a portion of the sidewalk under her right foot gave way causing her to fall to the ground. As a result of the fall, she sustained a fracture of her right wrist.

Claimant testified that after she fell, she observed that a piece of the sidewalk had broken off.

Claimant’s claim is based upon the doctrine of res ipsa loquitur and alleges that the sidewalk was under the control of Respondent, and that the negligence of the Respondent resulted in the damage sustained by Claimant.

It is Claimant’s contention that the State of Illinois was guilty of negligence by reason of res ipsa loquitur, and the Respondent contends the doctrine of res ipsa loquitur is not applicable because there is no evidence in the records that indicates that employees of Southern Illinois University were negligent in carrying out the duty to see that the sidewalks were safe.

The only evidence introduced was to the effect that there had been a snowstorm in the area, and that the University had cleaned the walks and salted the same. This was proven by the Superintendent of Student Buildings and Grounds of the University.

The Respondent also alleges that the doctrine of res ipsa loquitur should not be applied in this case because there were specific acts of negligence on the part of the Claimant. It is Respondent’s contention that to rely on this doctrine, the charge must be general and not specific negligence. The Respondent also raises the question of whether or not there was contributory negligence on the part of Claimant because she was walking along the edge of the sidewalk.

This Court, in the case of Charles M. Kenney, Administrator, etc. vs. State of Illinois, 22 Ill.Ct.Cl. 247, held as follows:

Under the maxim res ipsa loquitur, our Courts have announced many times that where a thing, which has caused injury, is shown to be under the management of the party charged with negligence, an accident is such as in the ordinary course of things does not happen, if the management uses proper care. The accident itself affords reasonable evidence in the absence of an explanation by the party charged, that it arose from want of proper care.

In the case of McCleod vs. Nel-Co Corp., 112 N.E.2d 501, 350 Ill.App. 216, plaintiff rented a room in a hotel and, while in bed, plaster fell from the ceiling and landed on the head of the plaintiff. The Court in this case invoked the doctrine of res ipsa loquitur and stated:

.. . (Requirement that before the rule of res ipsa loquitur can be applied it must appear that the instrumentality was under the management and control of the defendant does not mean or is not limited to actual physical control, but refers rather to the right of control at that time.

It is undisputed in this case that the university did have control of the sidewalk. The Court finds no evidence of contributory negligence on the part of Claimant.

It is the opinion of this Court that the Respondent is liable for the damage inflicted on Claimant.

The Court hereby makes an award to Claimant, Allison Wells, for her medical expenses and pain and suffering in the amount of Two Thousand Five Hundred Dollars ($2,500.00).


text:
    (No. 5989
    Mark Yanushis and Grane Trucking Co. Claimants, vs. State of Illinois Respondent.

      Opinion filed April 28, 1977.

    Gordon, Brustin & Schaeffer, Attorneys for Claimants.
    William J. Scott, Attorney General; Terry Norbet Tamillow, Assistant Attorney General, for Respondent.
   Spivack, J.

The claim herein presented for consideration sounds in tort. More specifically, for personal injuries sustained by Claimant, Yanushis, and for property damage sustained by Claimant, Grane Trucking Company, all as a result of the alleged negligent operation of a patrol vehicle belonging to the Illinois Department of Law Enforcement while under the control of and being operated by Corporal Richard E. Johnson, a member of the said department.

Hearings were conducted before Commissioner J. Barry Fisher. The testimony introduced was of the individual Claimant, of a representative of the Claimant trucking company, of Corporal Johnson, of Robert Townsend (an independant eye witness), and of Barbara Prokopek (another independent eye witness). Additionally, various documents were received in evidence and are a part of the record.

The following salient facts herein summarized were established by Commissioner Fisher and duly reported to the Court:

On January 27, 1970, at about 11:00 a.m., a collision occurred between a semi-trailer belonging to Claimant Grane Trucking and being driven by its employee, Claimant Mark Yanushis, and a patrol vehicle belonging to the Illinois Department of Law Enforcement and being driven by its servant, Corporal Johnson. The accident occurred in the westbound lane of Route 72, approximately one-half mile east of Route 53. At that point Route 72 runs in a generally east-west direction.

The uncontroverted testimony indicates that the day was clear and bright, the road dry and the visibility excellent. Sometime prior to the accident Corporal Johnson was dispatched to the above mentioned location on Route 72 to direct traffic in order to effectuate the moving of a house trailer. When Corporal Johnson arrived a large tow truck which was to be used to move the house trailer was already parked on the south shoulder of Route 72.

Subsequent to Corporal Johnson’s arrival both the tow truck and the State patrol vehicle were moved to the north shoulder. Both vehicles were now facing in a westerly direction with the patrol vehicle in front of the tow truck. After the vehicles were moved to the north shoulder, the flashing amber lights of the tow truck and the mars lights of the patrol vehicle were turned on and remained on at the time of the occurrence resulting in this action.

Mark Yanushis was driving a tractor-trailer in a westerly direction on Route 72. As he approached the parked vehicles on the north shoulder he admitted that he saw the tow truck, although stated that he saw no flashing amber lights on the tow truck, and he further stated that he saw no other vehicles parked on the north shoulder nor did he see any persons on the highway itself.

The State presented testimony of three witnesses that prior to the Claimant’s approach Corporal Johnson had stopped eastbound traffic and that as Claimant came into view Corporal Johnson was standing in the center of Route 72 facing the westbound traffic. Further, this uncontroverted testimony indicated that Corporal Johnson had both hands and arms raised indicating to the westbound traffic to come to a complete stop.

The testimony of the State’s witnesses is, and the Claimant himself admits, that he slowed down. Corporal Johnson then stated that he thought the Claimant understood that traffic was being stopped, and hence the Corporal moved from the center of the road to his patrol car in order to pull his patrol car to the middle of the road to act as a barricade as the house trailer was moved onto the road. Witness Townsend remained in the middle of the highway, facing east, arms outstretched toward westbound traffic.

Claimant testified that he did not see either Corporal Johnson or Townsend in the middle of the road but only slowed down upon seeing the tow truck on the shoulder.

Although the Claimant slowed down, he never came to a complete stop and was unable to avoid a collision with the patrol car which Corporal Johnson had just moved from the north shoulder to the middle of the road.

Just before the actual impact, Witness Johnson ran from the middle of the highway when the vehicle of the Claimant was between 25 to 50 feet from him.

Claimants’ first burden in proving liability against the State is to show by a preponderance of the evidence that they were free from contributory negligence and were in the exercise of due care and caution for the safety of their persons and property. Wasilkowski vs. State, Ill.Ct.Cl. (August 6, 1973); Weygandt vs. State, 23 Ill.Ct.Cl. 478.

Claimant Yanushis has failed entirely to sustain this initial evidentiary burden. No reasonable explanation is given for his failure to observe the State Trooper standing arms outstretched in the middle of the highway; no reasonable explanation is given for his failure to observe Townsend also standing in the middle of the highway within, at one point, 25 to 50 feet of him; no reasonable explanation is given for this failure to observe the flashing lights on the tow truck or the rotating mars light on the patrol vehicle which at impact was straddling the westbound lane. The only explanation given is that Claimant Yanushis simply did not see these various things. It is clear that the law imposes upon a motorist a duty to at all times maintain a proper lookout. This duty involves more than merely looking. It involves seeing what is clearly visible. Herald vs. Weitzenfeld, 351 Ill.App. 193; Krea vs. Ricci, 14 Ill.App.3d 904. Claimant Yanushis may have looked but certainly did not see what was ahead. Thus, he failed in his legal duty to maintain a proper lookout and was himself negligent.

Claimant Grane Trucking Compony is bound by the contributory negligence of its agent and servant, Yanushis. No testimony was offered that Yanushis was an independent contractor or had some other relationship to Grane Trucking which would negate the imputability of negligence.

In view of our opinion that Claimants did not prove by a preponderance of the evidence their freedom from contributory negligence it is not necessary to determine whether on the evidence presented Claimants sustained their additional burdens of proof relative to Respondent’s negligence, proximate cause, and the like.

The claim is hereby denied.


author: Burks, J.

text:
    (No. 6167
    Stephen R. Castleman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 1, 1976.

    Geittman and Foster, by Terry J. Foster, Attorney for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman and Douglas G. Olson, Assistant Attorneys General, for Respondent.
   Burks, J.

This is a claim for damages to Claimant’s property caused by escaped inmates of a State controlled institution.

Claimant brings this action under the provisions of Ill.Rev.Stat., Ch. 23, §4041, to recover damages to his 1967 Chevrolet Impala hardtop, which was admittedly stolen and wrecked by two escapees from the Department of Corrections’ Fort Massac Boys Camp in Metropolis. The parties have agreed that the value of Claimant’s loss by said damage is $1,035.00

The facts are not in dispute. They are contained in the memoranda and reports of the Department of Corrections on this matter and the affidavit of the Claimant which were admitted into evidence by joint stipulation without objection by either party. The parties waived a hearing in this cause and stipulated that no further evidence would be introduced. Both parties have submitted briefs on the key question of negligence on the part of the State and on the question of contributory negligence by the Claimant.

The facts are summarized as follows: two youths, David May and Sammy McKinney, ran away from Fort Massac State Boys Camp on January 22, 1971, about 11:30 a.m. They escaped through the east door of the laundry room. This fact was discovered by the camp authorities when the two inmates failed to report for lunch at 11:45 a.m.

Before the two inmates were apprehended they stole two vehicles. They abandoned one and wrecked the other. They drove the first car a short distance, ran it off the highway and abandoned it. The escapees then hid until dusk. They then stole Claimant’s automobile from in front of Claimant’s home in the City of Metropolis. They were chased by City Police along a public street until the stolen car collided with a truck. Both escaped inmates required medical treatment for the injuries they suffered when they wrecked the Claimant’s car.

The complaint filed by the Claimant charged that the State negligently failed to provide sufficient supervision and control over these inmates to prevent their escape. The only response to this charge we find in the meager record before us is the following statement by the Director of the Department of Corrections:

There is no question that the Department of Corrections had the duty to care and supervise these two wards prior to their escape. We question the degree of care required when the boys were in a limited security camp, such as Fort Massac Boys Camp.

We feel that the above statement is an insufficient and inadequate answer by the Respondent to Claimant’s charges of negligence in its custodial responsibilities for the two escapees in this case. It is apparent from the crimes they committed that these two youths should have been kept under greater surveillance than the ordinary inmates at this institution. The facts pertaining to the prior record of these two inmates were in the exclusive control of the Respondent and could have been presented had they been favorable to the Respondent. U.S. Fidelity & Guaranty Co. v. State, 23 Ill.Ct.Cl. 188 at 192.

There is an item of evidence which indicates that the Director of the Fort Massac institution apparently took no steps to prevent these two inmates from repeating their crime spree that caused Claimant’s loss. In fact they escaped again four days later according to a footnote in a departmental interoffice memo which reads as follows:

David May and Sammy McKinney again ran from camp at 7:30 p.m. on 1-26-71 and were apprehended at 9:30 p.m. walking on Highway 145 approximately 4 miles from camp. They were placed in the County Jail to await return to R & D on 1-29-71.

As we said in American States Ins. Co. v. State, 23 Ill.Ct.Cl. 47 at 50, "Each of these escape cases rests upon their own peculiar set of facts and circumstances.” In the case at bar, we hold that the evidence offered by the Claimant is sufficient to establish a prima facie case of negligence on the part of the Respondent. Since the Respondent offered no testimony on the point, we conclude that the Claimant has carried his burden of proving that there was some fault on the part of the State in failing to provide adequate supervision for these two young criminals who apparently were able to run away from the institution at will and with impunity.

We turn next to Respondent’s contention that the Claimant was guilty of contributory negligence by the fact that the keys were in his car parked on a public highway in front of his home when it was stolen by the escapees. This is, as Respondent points out, a violation of the Illinois Vehicle Code, §11-1401 which reads as follows:

Unattended motor vehicles. No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine and removing the ignition key. [Emphasis added]

We agree with Respondent’s effective argument that leaving the ignition keys in a car unattended on a public highway is prima facie evidence of negligence, Ney v. Yellow Cab Co. 2 Ill.2d 74 and Kacena v. George W. Bowers, 63 Ill.App.2d 27.

However, it was not the Claimant in this case who negligently left the keys in his car. Claimant had loaned his automobile to his father so that his father might attend a funeral. While the car was still in the father’s temporary possession, the latter stopped in front of Claimant’s home, left the keys in the car, came into Claimant’s house to talk for about five minutes, came out, and found that the car had been stolen.

We agree with Claimant’s argument that the negligence attributable to his father cannot be imputed to him since a bailment relationship existed between Claimant and his father. The father was bailee of Claimant’s car. The general rule of law is that the negligence of a bailee cannot be imputed to a bailor. Illinois courts have held that the negligence of a bailee cannot be imputable to the bailor, as a matter of law. Gilman v. Lee, 161 N.E.2d 586, 589; 423 Ill.App.2d 61; Keller v. Shipee, 45 Ill.App. 377; also see 39 Ill.Bar J. 142 (1950).

Respondent argues that the bailment relationship had terminated before the car was stolen since the car had been returned to the Claimant when his father parked it in front of Claimant’s home. We believe that controlling custom and usage on the redelivery of a car by a bailee would call for a handing over of the keys to the bailor before the bailment is terminated I.L.P. Bailment §22.

Regardless of the precise moment that the bailment was terminated it was certainly still in effect when the father-bailee negligently left the keys in the ignition. Since that act of negligence cannot be attributed to the Claimant we find him free of any contributory negligence.

The Claimant, Stephen R. Castleman, is hereby awarded the sum of One Thousand Thirty-Five Dollars ($1,035.00) for damages to his property.


text:
    (No. 6185
    Edward R. Heil, Et Al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 15, 1976.

    Drach, Terrel and Defenbaugh, Attorneys for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Burks, J.

This claim, founded upon a contract, invokes the Court’s jurisdiction pursuant to the Court of Claims Act §8(b). The claim is for payment of money allegedly due the Claimant for the performance of work done for the State under a certain contract designated as contract No. FR-198, referred to as the Addison Creek Channel Clean-out Contract. The contract generally provided for the channel clean-out of a certain portion of Addison Creek between St. Charles Road on the south and North Avenue on the north. This area lies to the west edge of Cook County, close to the Dupage County line.

In addition to the clean-out of Addison Creek, the contract provided for the removal of certain trees and the mulching, seeding and fertilizing of the banks in certain areas within the limits of the contract. The contract was awarded on June 29, 1970, through the then Department of Public Works and Buildings, Division of Waterways.

All work required under the contract has been completed by the Claimant and accepted by the State.

A dispute exists as to the amount of units of work actually performed for which the Claimant is entitled to be compensated at the unit prices stated in the contract. Units of excavation work are stated in cubic yards. Units of work for seeding and mulching are in acres. Claimant alleges that they excavated 15,842 cubic yards; that they were only paid for 9,304 cubic yards; and that the Respondent should pay for another 6,548 cubic yards at $4.45 per cubic yard, totaling $29,139.60.

A dispute also exists as to the amount to which the Claimant may be entitled for damages allegedly incurred by him in the completion of work by reason of the failure on the part of the Respondent to provide right-of-way for use of the Claimant in connection with the work to be performed, as shown on the contract documents. The complaint claims $20,000.00 as the sum to which the Claimant is entitled for the State’s lack of right-of-way.

There is also a disputed claim in the amount of $21,934.05 for damages allegedly due to flooded conditions of the channels at the time they were to be excavated. We find that part of the claim to be totally unsupported, and that nowhere in the contract is there to be found any reference to the condition of the channels.

Including the alleged flood damages, the complaint alleges that the entire amount to which the Claimant was entitled was $126,056.05; that Claimant was paid the sum of $53,234.80; and that the unpaid amount due the Claimant was $72,821.25.

Respondent admits that it owes the Claimant an additional sum of $3,136.00 for tree removal, and that this amount would have been paid except for the fact that the appropriation had lapsed. The parties have stipulated that this figure is the correct amount for tree removal rather than the $5,770.00 originally claimed.

Respondent does not deny that some amount of additional compensation may be due the Claimant for the additional excavation work admittedly performed in accordance with the direction of Respondent’s resident engineer. The State says in its brief, "The Respondent concedes that the Claimant did a workmanlike job, and although paid for 9,304 cubic yards, did in fact remove more than that yardage.” The questions for the court to decide here are question of fact, how much more yardage did the Claimant actually remove, and how much should the State pay for this additional work.

Respondent’s position essentially consists of an attack upon the sufficiency of Claimant’s evidence as to the amount of yardage excavated; that Claimant’s calculations on the basis of semi-truckloads of dirt taken are inexact; that the efficiency factor referred to in Claimant’s exhibits is speculative, etc. We believe these objections should be waived under the rule we cited in Egan v. State, 24 Ill.Ct.Cl. 114, 117:

Where the right of recovery exists, the defendant cannot escape liability because the damages are difficult of exact ascertainment.

Respondent also covers the other side of the coin by suggesting that Claimant unnecessarily excavated more yardage than called for. However, we believe that the weight of the evidence supports our conclusion that the additional yardage removed by the Claimant was required by authorized deviation from the plans under the direction of the State’s Resident Engineer, Mr. Courtney Smith. The State partially, though grudgingly, agrees in its brief:

The Respondent would agree that under Mr. Courtney Smith’s direction, the Claimant might be forgiven and even compensated for moving the channel one way or the other, but this does not appear to justify gross overexcavation in any area.

A further qualified concession found in the State’s brief reads as follows:

From the testimony introduced in the record the Respondent would concede that the Claimant is perhaps justified in such deviations from the design as moving the center line of the channel over one way or the other as directed by the resident engineer, but only in those areas where this was done.

The Court, following the authorities of our reviewing courts, has frequently held that deviations from plans may be orally authorized by the Respondent notwithstanding contract provisions that no extras will be allowed except as ordered in writing. Divane Brothers Electric Co. v. State of Illinois, 22 Ill.Ct.Cl. 546, 553; Salomon-Watertown Co. v. Union Asbestos and Rubber Co., 236 Ill.App. 583; Theis v. Svoboda, 116 Ill.App. 20; City of Elgin v. Joselyn, 36 Ill.App.301, 307; Stahelin v. Board of Education of School District No. 4, DuPage County, 87 Ill.App.2d 28, 230 N.E.2d 465; City of Quincy v. Sturhahn, 18 Ill.2d 604, 165 N.E.275.

In the case at bar it is undisputed from the record that the Claimant followed the directions of the resident engineer in deviating from the design throughout the course of the excavation with the exception of approximately 300 feet (Station 0+00 to 2+40) of this 6,500 foot project. The yardage removed outside the design in this 300 foot segment was 831.92 cubic yards.

Claimant testified that all excavation removed outside of the design limits here was replaced. However, we are giving the Respondent the benefit of this issue by reducing the claim for excavation by $3,702.04 (831.92 cubic yards x $4.45 per cubic yard).

The yardage figures accepted by the Court are taken from a booklet prepared by the Department of Transportation under the title:

CHANNEL EXCAVATION COMPUTATIONS ADDISON CREEK FR-198

(Prepared for Attorney General’s office Feb. 1975)

This document shows the total area excavated by the Claimant "Inside and Outside of Design Channel” was 15,567 cu. yds. Since it is clear to the court that the Claimant excavated in accordance with the directions of the resident engineer, Claimant is entitled to be paid for this amount of excavation work at the agreed rate of $4.45 per cu. yard. The above mentioned document shows that the Claimant has already been paid at said rate for 9,304 cubic yards. This and the 831.92 cu.yds. removed without authorization will be deducted in our calculation as follows:

Total amount of earth removed by the Claimant......15,567.00 cu.yd.
Less excess yardage removed without authorization of Respondent’s resident engineer.................... -831.92
Total compensable yardage removed.................14,735.08
Less yardage previously paid for by Respondent ...... 9,304.00
Compensable yardage remaining unpaid .............5,431.08

5,431.08 cu.yds. x $4.45 per cu.yd. = $24,168.30 due the Claimant for yardage excavated in addition to that previously allowed.

II.

We find from the evidence, notwithstanding a very persuasive argument in Respondent’s brief, that the Claimant is also entitled to damages for the extra work required due to the failure on the part of the Respondent to obtain certain rights-of-way shown on the plans and specifications prepared by the Respondent but not actually available to the contractor at the time of construction.

We believe the evidence supports Claimant’s contentions that the Respondent has made the following admission of facts: (1) that right-of-way as shown on the plans and specifications furnished to the Claimant were not available at the time of the performance of the job; (2) that the unavailability of the right-of-way as shown on the plans caused damage to the Claimant and that the Respondent is liable for those damages; and (3) that an unstated portion of $2,000 which Claimant was allowed as damages for lack of right-of-way, as well as for damages resulting from it being required to work under flooding conditions, is an arbitrary figure and not related to actual damages suffered by the Claimant as a result of the lack of right-of-way being available to him.

Respondent seeks to avoid the admissions of liability on the part of the Respondent in paying Claimant an arbitrary amount for damages due to the failure of the State to provide right-of-way for the Claimant by stating that this payment constituted a compromise settlement and is therefore not evidence of admission of liability. Respondent points out that our courts encourage compromise settlements as a matter of public policy, and such compromises are not deemed to be an admission of liability.

Claimant effectively answers that a compromise settlement must necessarily be bilateral. In this case there was no agreement on the part of the Claimant to accept the arbitrary sum of $2,000.00 in settlement of his claim for damages because of the lack of right-of-way or the flooding conditions, and no release was given by Claimant therefor.

Further, Respondent seeks to avoid the consequences of its admission of liability by stating that the Chief Engineer, Mr. Guillou, erroneously assumed that there was a failure to provide right-of-way. This suggestion is hardly tenable in view of the testimony of Courtney Smith, the Resident Engineer, as to the actual fact concerning lack of right-of-way, in view of the testimony of Emery Killpatrick, Chief of Operations of the Division of Waterways of the Department of Transportation of the State of Illinois, concerning the lack of right-of-way, and Claimant’s Exhibit No. 8, being a memo from Killpatrick to Guillou dated March 30, 1971, some nine months after the completion of the project by the Claimant, to the effect that there was considerable cost to the State due to adjustments with the contractor because of right-of-way given to the State and shown on the plans and not actually available to the contractor at the time of construction.

This Court has invariably held that where erroneous statements are made in specifications prepared by the State, which specifications form part of the contract, and where a contractor relied upon the specifications and is misled as a result in the performance of the contract, the State is liable for damages resulting from the erroneous statements. Peter J. Crowley Co. v. State of Illinois, 10 Ill.Ct.Cl. 708. The rule is restated in Arcole Construction Co. v. State of Illinois, 11 Ill.Ct.Cl. 423, as follows:

Where plans and specifications, forming part of contract for erection of a public improvement are prepared by State and relied on by party contracting with it for such erection, contain material misrepresentations, and such party is misled thereby, and as a result thereof is obliged, in performance of contract to do extra work, State is liable in damages for value thereof.

The dollar value of Claimant’s damages for failure to have access to the said right-of-way was alleged in the complaint to be $20,000. At the hearing the amount was reduced to $15,311.80. In Claimant’s brief the damages claimed for lack of right-of-way was further reduced to an amount we find realistic and acceptable.

The Claimant calculated the damage due by reason of being required to use only public streets and alleys from which to take excavation from the channel as being in the sum of $13,314.61 based upon a reduction of efficiency of 62 percent. The lack of right-of-way problem was not encountered during the first nine days. During these nine days the Claimant excavated an average amount of 837 cubic yards of dirt per day. During the period in which Claimant was deprived of right-of-way his average daily excavation was 320 cubic yards so that efficiency was impaired by 62 percent. In this area the Claimant excavated 4,171 cubic yards at additional costs to himself. Claimant therefore computes his damage proximately caused by lack of right-of-way at $11,499.25 [62 percent or $4.45/yd x 4,171 yards]. Since the impairment of efficiency was also present in respect to tree removal by being required to haul trees in areas not available as right-of-way, as shown on the plans, Claimant computes his damage in this regard at $1,915.36 [62 percent at 2.00/inch x 1,464 inches]. Thus, the total damages resulted from the lack of right-of-way is $13,314.61 based upon reduction of efficiency.

Although the Respondent questions Claimant’s method of calculation, no evidence was introduced by the Respondent tending to show any other computation of the damage flowing from the lack of right-of-way available to the Claimant, nor was any evidence introduced tending to show that the Claimant failed to mitigate damages in any respects. The Claimant’s ascertainment of damages was the best evidence available and is accepted by the court. See Johnson v. City of Galva, 316 Ill. 598, 147 N.E. 453; Egan v. State, 24 Ill.Ct.Cl. 114, 117. The sum of $2,000 will be deducted from the total amount of the claim as having already been paid by the state. Therefore the damages are reduced to $11,314.61.

III.

We find that the Respondent is not liable for the $12,961 claimed for extras by reason of the Claimant being compelled to work in flooded conditions during the performance of the contract.

The record does not support the Claimant’s contention that he was given assurances relating to the water levels by the Respondent’s authorized representatives. Nowhere in the contract is there to be found any reference as to the condition of the channels. This is obvious not only from an examination of the contract but from the fact that nowhere in the record was Claimant able to produce any reference in the contract to the condition of said channels. Therefore the Claimant has not shown any negligence on the part of the State connected with the failure to have certain culverts lowered prior to the Claimant’s excavation in order to lower the water levels. Claimant has failed to show sufficient proof of duty, negligence, breach or damages, and will be denied any claim based on flooded conditions of the channel.

IV.

We find that the Respondent is not liable for the $2,440.35 claimed for extra seeding and mulching of an additional 2.871 acres of land. In order to accommodate Claimant, and make a payment for items not obviously within the contract, Mr. John C. Guillou, Chief Engineer of the Division of Waterways, approved the payment of an additional 860 yards at $4.45 per yard rounded off to $3,380.00. This approval was given in response to a letter dated September 14, 1970, from E. & E. Hauling to the Division of Waterways concerning extra work performed under its contract here at issue. In Claimant’s Exhibit No. 10, Claimant listed six items in paragraph 1 through 6 for which Claimant was seeking additional compensation, including extra seeding and mulching of approximately 2.75 acres of village land. According to Claimant’s Exhibit No. 9, Mr. Guillou approved a payment of $3,830.00 of which $1,830.00, or about half of the $3,660.00 requested by Claimant in its letter of September 14, 1970, was being paid by the State to cover those claims listed by the Claimant. For the other half, we concur in Respondent’s suggestion that the contractor should look to local interests for payment for additional work done at the request of various mayors and village officials.

Respondent argues, and we agree, that the contractor is asking for payment as an "extra” item for seeding, mulching and fertilizing which was not covered by the contract and for which Claimant should not be further compensated over and above the additional payment which was approved by Mr. Guillou. Claimant concedes in its Exhibit No. 10, "I understand that, according to my contract, many of these extras are not permissible for payment. . . .”

V.

Respondent is liable in the sum of $3,136.00 for tree removal as was agreed upon by the Respondent and the Claimant in a joint stipulation. This amount was not paid by the Respondent only because the appropriation had lapsed.

To summarize and recapitulate, we find that Claimant is entitled to an award as follows:

I. For yardage of excavation in addition to that allowed: 5,431.08 yards at $4.45 a yard ......................................$24,168.30
II. For damages sustained by the Claimant as a result of State’s failure to provide right-of-way (after deducting $2,000.00 already paid) ......................................................11,314.61
III. For extra expenses claimed as a result of flooding ...........None
IV. For extra expenses claimed for additional seeding and mulching ..........................................................None
V. For tree removal as agreed by the parties in a joint stipulation .......................................................3,136.00
TOTAL .................................................$38,618.91

The Claimant is hereby awarded compensation for additional contractual services performed in the total sum of Thirty-Eight Thousand Six Hundred Eighteen and 91/100 Dollars, ($38,618.91).


text:
    (No. 6209
    Donald S. Caplan and Pere Marquette Ski Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1977.

      Charles H. Delano, Attorney for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimants on July 19, 1971, filed with this Court a claim for alleged damages resulting from the cancellation of a lease between Donald S. Caplan and the State of Illinois entered into under date of October 1, 1968. The lease granted Claimant Caplan the right to construct a ski lift in Pere Marquette State Park at a site known as Williams Hollow. Throughout the proceedings and in this opinion, this particular site is referred to as Site 1. The lease was to run from January 1, 1969, through December 31, 1993. The lessee, referred to in the lease as Concessionaire, was to provide certain improvements, including one chair lift, parking lot, warming house, day lodge with restaurant facility and all facilities necessary to operate a ski area. It was agreed that the Concessionaire was to have the chair lift in operation by January 1, 1971.

After the lease was executed, Claimant Caplan formed a corporation known as Pere Marquette Ski Corporation which succeeded to the lessee’s rights and proceeded to lay plans for the ski area, including making a profile of the land terrain, arranging for the construction of a chair lift in France by the Pomalift Company specifically for the profile of the slope at Site 1. Also, the State cleared trees at Site 1.

On May 13, 1969, the State, through the Department of Conservation, wrote the Claimant a letter requesting that Claimant discontinue action in construction of this chair lift. The letter requested a 30-day discontinuance of any construction.

With the letter, the State enclosed a letter signed by Paul Kilburn and John Wanamaker of the Biology Department of Principia College at Elsah, Illinois. The substance of the letter was that the construction of a ski lift at Site 1 would be a detriment in that it might spell the doom of the bald eagles. It pointed out that thére were over 60 of these birds who roosted there through the winter. It was contended that the ravine selected for the ski development was a major roosting area for the bald eagles. They recommended further construction of the ski area should not be allowed. As a consequence, the chair lift went into storage.

On June 9, 1969, the State, through the Department of Conservation, wrote Claimant again and stated that Claimant was not to start any construction or erection work and to keep the equipment crated. The impression left by the letter was that the State was concerned with the public safety involved and no mention was made of any detriment to bald eagles.

On July 3, 1969, the Director of the Department of Conservation wrote Claimant on behalf of the State declaring that the lease was null and void and of no effect, contending that the act of the Department was ultra vires.

Thereafter, the parties negotiated an amended lease which called for construction of a ski area five miles east of Site 1. This new site is referred to in the proceedings as Site 2. The new lease specifically reserved to Claimant all rights and causes of action occasioned by the denial of the use of land under the original contract. The new lease was dated October 8, 1970, and contained the following language:

5. It is further agreed that the Concessionaire, by agreeing to substitute the tract of land herein described, and surrendering his right to use the land described in the lease agreement, does not waive or release any and all claims or causes of action occasioned by the State having denied him the use of the land originally described in said Lease.
6. It is further agreed that the substitution of the real estate herein provided for is, and was, made for the benefit, and at the insistence and request of the State of Illinois, Department of Conservation, and not for any purpose of the Concessionaire.

Claimant contends that at Site 2 it encountered problems not present at Site 1. He states that there was no road into the area; no parking facilities; no intermediate slope; water was nearly a mile away; three buildings on the grounds were deteriorating; it was 3/4 of a mile from the highway and five miles from the heart of the peak where the people would be; that the chair lift had to be redesigned for the new slope. In the complaint filed, Claimant demanded an award in the amount of $225,855.50 and submitted a detailed bill of particulars.

On August 25, 1971, there was filed in the record a letter from the Department of Conservation to the Attorney General which was signed by the Director of the Department. The letter was in the form of an answer to the complaint admitting the substance of the allegations, but pleading ignorance as to the amount of compensation, if any, to which Claimant was entitled.

On June 12, 1972, the State filed a Motion to Dismiss contending that the original lease would violate Title 16, Section 668 of the United States Code and was, therefore, void. The Motion to Dismiss was previously denied by this Court. The argument in the Motion is the gist of the State’s case for damages.

Title 16, Section 668 of the United States Code provides as follows:

Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do so as provided in sections 668-668d of this title, shall take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle commonly known as the American eagle, or any golden eagle, alive or dead, or any part, nest or egg thereof of the foregoing eagles, shall be fined not more than $500 or imprisoned not more than six months, or both; Provided, That nothing in said sections shall be construed to prohibit possession or transportation of any bald eagle, alive or dead, or any part, nest or egg thereof, lawfully taken prior to June 8, 1940, and that nothing in said sections shall be construed to prohibit possession or transportation of any golden eagle, alive or dead, or any part, nest or egg thereof, lawfully taken prior to the addition to said sections of the provisions relating to preservation of the golden eagle. As amended Oct. 24,1962, Publ. L. 87-884, 76 Stat. 1246.
As used in sections 668-668d of this title "whoever” includes also associations, partnerships, and corporations; "take” includes also pursue, shoot at, wound, kill, capture, trap, collect, or otherwise willfully molest or disturb; "transport” includes also ship, convey, carry, or transport by any means whatever, and deliver or receive or cause to be delivered or received for such shipment, conveyance, carriage or transportation. June 8, 1940, c 278, Section 4, 54 Stat. 251.

It is a theory of the State, as disclosed by the arguments made, that the building of a ski lift would be a willful disturbance of the bald eagles and that such disturbance is prohibited by Title 16, U.S.C.A.; that an agreement to do anything which is forbidden by a valid statute is void whether the forbidden act is malum prohibitum or malum per se. It is argued that the contract must be declared void, as it was against public policy since no person may lawfully do that which has a tendency to be injurious to the public or against the public good. The State refers to Illinois Law and Practice, Contracts, Ch. 7, §151, 152, 153, 191, 196, and 198.

The Claimant contends that the Respondent is prohibited from raising the issue of public policy since such issue was not joined by the pleadings. This Court has previously entered an order to the effect that the question of public policy has been put in issue by Respondent’s Motion to Dismiss. See Order of May 19, 1975.

Claimant urges that Title 16, Section 668 of the United States Code does not apply to the land use contemplated by the Claimant and further takes the position that even if it does apply, the State has failed to sustain its burden of proof that the proposed construction at Site 1 of a ski lift would "molest or disturb” the roosting of the bald eagles. This position points up the fundamental issue underlying the case before this Court insofar as liability is concerned.

It is clear that at the time the State terminated the lease it was acting on recommendation of outside sources, which recommendations were in the nature of an appeal to stop the construction since it was known that bald eagles roost in the area in the winter months. At the time of the lease termination, the State did not have strong evidence that the construction of the ski lift would necessarily "disturb” the roosting of the eagles. Apparently the State felt it did not wish to take the chance to find out and decided not to risk possible disturbance. This may well have been a judicious thing to do but does not determine the rights flowing therefrom.

The Claimant argues that Title 16 does not, by its terms, prohibit a lawful use of land whenever it appears that eagles may indirectly be disturbed, and that members of Congress, according to the committee reports, were not concerned with indirect disturbance but rather a direct and immediate threat by hunters and egg collectors. Claimant’s position is fairly well taken in this regard. However, we do not think it necessary to base a decision on that interpretation of Title 16. We prefer to make our determination on whether or not the State has proved by competent evidence that the ski lift would, in fact, make a disturbance to the bald eagle to the extent and in a manner which Title 16 prohibits.

The record contains an evidentiary deposition of Terrence N. Ingram. Mr. Ingram had been certified as a naturalist by the State of Wisconsin. He was president of Apple Valley Environmental Association and a director for Environmental Workshop in Wisconsin and Canada; also a director of the Illinois Audubon Society. He testified that in general eagles have several roosts. They will have roosts on a river bottom, that is, where there are large trees surrounded by larger ones which act as a buffer zone. This they use in mild weather. But when the weather is more severe, they will go into a valley to roost to get out of the wind.

Mr. Ingram testified he visited Site 1 in May of 1970. This was at a time there were no eagles roosting. He said he was the one responsible for the Director of the Department of Conservation negating the contract. Note, however, that the State cancelled the lease in June, 1969, almost a year before Mr. Ingram visited this Site.

He testified that during severe weather eagles have to have a roost in a valley rather than a river roost. On a river roost, the eagles have to expend an extra amount of energy to keep the body temperature up. With the loss of body temperature, they have to go into the body fat which has DDT in it. The result is that using that fat, there may be enough poison to go to the brain and kill them, or it might affect reproduction. By going to the valleys, they are not exposed to that stress. Any disturbance of their roosting in the valley would cause them to fly out. Any person walking within a quarter of a mile would cause such a disturbance.

He stated that if a ski lift had gone in on Site 1, the birds would not be using the valley as a roost. When asked, however, how that would affect the eagles as to population mortality, he replied that he didn’t know how many valleys there were and that a Dr. Wanamaker would be better to testify to that.

When asked about the decline of the eagles, Mr. Ingram stated he didn’t know what the reasons were. He didn’t have any facts and admitted that, with regard to saving birds, all he would be testifying to would be speculation.

The testimony of John Wanamaker is also in the record in the form of an evidentiary deposition. Dr. Wanamaker was a professor of Biology at Principia College, Elsah, Illinois. He had a doctorate from Cornell University; a masters in ornithology; was a student of conservation; and had written a number of articles for various nature magazines, principally in the area of conservation and the conservation of wild life. The campus of Principia is about 18 miles from Marquette Park lodge.

Dr. Wanamaker testified that they had a winter study dating back to 1941 involving the feeding and roosting habits of the eagles in the Williams Canyon, the Site 1 area. He stated that he had seen eagles roosting in the Williams Hollow every year from the time they were first shown to him as a student at the college back in 1939. He stated that eagles use the roosting area during off feeding, or night time, and usually one species; that in case of migratory species, the same area would be used annually; that he had observed at the most 100 eagles roosting in the area of Site 1.

When asked if there were other bird roosts in that general area, he stated that there was one small roost that he knew of; that Site 1 location was the only large roosting area of a permanent winter nature that he knew of. He was asked whether or not he had an opinion as to what the effect the construction of the ski lift and skiing activities would have been on eagles using the roost area at Site 1. He replied that a disturbance of this area would force the birds to abandon that particular eagle roost and that the birds would scatter and this would be the end of the flock. On cross examination, however, Dr. Wanamaker admitted that there was one other equally suitable hollow for roosting in the area of Site 1. He described the roosting area as one where there were large trees with large limbs to support their weight without the interference of smaller branches so they could have easy access in and out and be protected from the winds during the cold winter. He also testified that insecticides, herbicides, and public shooting were the biggest dangers to eagles.

He further said he agreed that as far as the effect of a loss of a roosting site was concerned, there was no scientific evidence as to what that would have on a flock of eagles. The following questions and answers were asked:

Q. Now Doctor, with respect to a roost, what is the best way to determine what would happen if eagles were to lose a particular roost, if you know?

A. Yeah, if the roosts were to be a loss such as in this case here, I think the most effective way would be simply we do have enough people making observations along the Mississippi to be able to judge over a period of time what happened to the very number of birds and I think that would give us the information (sic). That’s about the only way I could concede to do it.

Also, the following:

Q. But with respect to the eagles, from any scientific basis the only concrete statements I think that can scientifically be made is that the removal of the roost would cause them to move from Williams Hollow?
A. I’m just —
Q. Isn’t that correct?
A. I would disagree with that statement. I’d modify it.
Q. How would you modify it, Doctor?
A. I would say that we don’t know what the effect of removal would have on the birds. I don’t think you have any basis for saying we do. I wish we did.
Q. And I gather from the material that I’ve read and from your testimony here today that that is the situation with respect not only to yourself but all experts in this field?
A. (Nodding in the affirmative.)
Q. You’ll have to answer, she can’t mark down a nod, Doctor.
A. Yes, yes.

It appears from the state of the record that the State cancelled the lease based on the suggestion of parties interested in the bald eagle. Thereafter, it persuaded the Claimant to accept a new area but permitted Claimant to include a clause in the amended lease reserving whatever rights he had to damages arising out of the cancellation. The record indicates that the State felt it worthwhile to cancel the lease even if it were liable for damages.

We have no quarrel with the attitude of the State, but the Claimant’s rights cannot be obliterated based on speculative evidence. Nor do we have quarrel with the witnesses Wanamaker and Ingram who apparently are dedicated to taking all precautionary measures to protect the American eagle and trying to safeguard the eagle from any possible disturbance. It cannot be said, however, that the testimony satisfactorily meets the burden of proof on the State. It could well be that the ski lift operation would disturb the roosting habits of the bald eagle in the area of Site 1 in Pere Marquette Park. It could well be that this disturbance would have an effect on the flock. The proof, however, is speculative and insufficient in this regard to deny Claimant rights to damages. It would be just as appropriate, from the legal proof here, to prohibit the use of insecticides and herbicides in any area known to furnish eagles their source of food.

It may well have been judicious for the State to cancel the lease as a matter of policy even lacking the clear right to do so. Our holding, however, is that the Claimant is entitled to recover.

The damages must be limited to those we believe to be directly arising out of the cancellation of Site 1 and not include extra expenditures attributable to obtaining and preparation of Site 2. Site 2 was accepted voluntarily by Claimant and he must have known, or at least is presumed to have known, of the additional expenses required at Site 2 over Site 1. He voluntarily undertook these expenses when he entered into the new lease.

We are, therefore, entering judgment for the Claimant for certain items of damages as appear in the record.

Claimant has itemized in particular his claimed damages and introduced evidence in support of each item. He made the following expenditures and claims, and they are appropriate items of damages for which he should be compensated.

The items of expenditure are shown below and our determination is indicated after each item.

Item 1. Expenditure for feasibility studies in the amount of $3,693.49 is hereby allowed. This involved a preliminary study of the area and determination of the compatability of the slopes for skiing.

Item 2. Engineering work at Site 1 in the amount of $6,820.00 is hereby allowed.

Item 3. Expenses of travel of Claimant in connection with the original lease in the amount of $5,667.42 are allowed.

Item 4. Personal expenses of Claimant, such as phone calls and so forth relative to Site 1 in the amount of $435.96 are allowed.

Item 5. Legal expenses of Claimant relating to negotiating and drafting original lease in the amount of $800.00 are allowed.

Item 6. Legal expenses incurred in the amount of $2,809.45 in negotiating for the amended lease are not allowed.

Item 7. Personal expenses in connection with Site 2, such as telephone calls, in the amount of $704.35 are not allowed.

Item 8. Depreciation in the amount of $8,500.00 for one year is allowed.

Item 9. Salaries for area manager and president of the corporation for a period of one year, April, 1969, to April, 1970, in the amount of $22,500.00 are allowed.

Item 10. Storage of ski lift due to shut down of construction in the amount of $1,760.00 is allowed.

Item 11. Interest on Harron Engineering Company unpaid bill in the amount of $1,683.00 is not allowed.

Item 12. Additional costs due to delay in construction in the amount of $7,742.36 are not allowed.

Item 13. Estimated profits for one year lay off in the amount of $48,000 are not allowed as they are too speculative.

Item 14. Additional costs to provide water at Site 2 in the amount of $29,678.00 are not allowed.

Item 15. Building tower at new site in the amount of $27,353.00 is not allowed.

Item 16. Adjusting ski lift equipment to accommodate new site in the amount of $17,842.36 is allowed. This item appears to be expenses incurred directly in connection with mitigation of damages.

Item 17. Additional costs for engineering, surveying and consultant work at Site 2 in the amount of $7,595.00 are not allowed.

Item 18. Additional costs for erecting the ski lift at Site 2 over Site 1 in the amount of $8,118.98 are allowed. This is similar to the item of making the necessary changes in the ski lift.

Item 19. Alterations of the chair lift to fit new profile in the amount of $2,841.46 is allowed.

Item 20. Additional excavational costs for beginner’s slope and parking lot at Site 2 in the amount of $64,650.00 are not allowed.

Item 21. Legal fees negotiating for new lease at Site 2 in the amount of $1,500.00 are not allowed.

SUMMARY

We are, therefore, awarding a total of $78,979.67 to Claimant as shown below:

Item 1 $3,693.49
Item 2 6,820.00
Item 3 5,667.42
Item 4 435.96
Item 5 . 800.00
Item 8 . 8.500.00
Item 9 . 22,500.00
Item 10 1.760.00
Item 16 17,842.36
Item 18 8,118.98
Item 19 2,841.46
TOTAL..........................................$78,979.67

Judgment for Claimant in the amount of Seventy-Eight Thousand Nine Hundred Seventy-Nine and 67/100 Dollars ($78,979.67) is hereby entered.


text:
    (No. 6302
    Michael J. McDermott Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 2, 1976.

    James M. Redding, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Burks, J.

The claim presented here is based on a contract and seeks to recover additional compensation allegedly owing on a construction project due to "loss of efficiency.” Respondent filed a counterclaim seeking recoupment on Claimant’s alleged failure to meet construction schedules.

The Claimant, Michael J. McDermott & Company, is an Illinois corporation engaged in the business of contracting for labor and materials as a general contractor. On or about April 23, 1970, the Respondent, State of Illinois, through its Department of Public Works and Buildings, Division of Highways, let bids for reconstructing the superstructure of a five-span bridge for Torrence Avenue over the Little Calumet River in the City of Chicago.

On May 18, 1970, the Respondent awarded the contract for this work to the Claimant. The formal contract was executed on May 27, 1970. On the same day, and subsequently at the State’s request, meetings were held to discuss the possibility of expediting the work to alleviate adverse effects on nearby industrial developments. Commencement of work was already delayed because of a cement masons’ strike.

The Claimant prepared a detailed recapitulation of cost for an accelerated schedule and submitted it to the State on June 3, 1970. A disputed issue of fact exists as to exactly what that figure was. Both sides agree that an estimate of $41,704.00 was submitted for costs including premium time. In addition, Claimant alleges it included a figure for "loss of efficiency factor” of $21,317.00 for a total of $63,021.00. In simplest terms, this "loss of efficiency factor” relates to the less than normal level of productivity supposedly exhibited by a worker facing a consistent schedule of overtime work.

At another meeting on July 10th a new work schedule was set consisting of five 10-hour days and one 8-hour day per week. Work was to begin one week after the labor disputes were settled. Mr. Val Gaesor of the State informed Claimant’s Mr. Poynton that approval for the accelerated schedule had been received; that a change order would be processed, and that Claimant would be notified by letter. The letter was issued July 16th. It called for construction beginning July 27th. The span was to be open to traffic by October 31st, and remaining work was to be completed within 29 working days.

Work began on schedule. The Respondent, on July 31, 1970, authorized a $60,000.00 addition to the contract which was received by the Claimant on August 25, 1970. The construction fell behind schedule early in October, and the roadway was not open to traffic until November 6, 1970. Final work was completed on May, 1971. This, according to project reports, was 25-1/4 working days subsequent to the bridge opening.

The recovery claimed in this case, if it were to be sustained, must be founded upon the existence of a contract, express or implied. There must have been a meeting of the minds by these parties. The question is whether the Respondent expressly or impliedly agreed to pay the Claimant for the "loss of efficiency factor.”

In its argument, Claimant refers to its cost recapitulation of June 3, 1970, as an offer which was later accepted by the Respondent. This interpretation of the facts, however, runs contrary to the way the parties treated these figures. They dealt with them as estimates and not as fixed contractual terms.

The Respondent’s letter of July 16, 1970, [Claimant’s Exhibit 3 and part of Respondent’s Exhibit 1] is phrased as an estimate for the additional non-productive premium time. The similarity to Claimant’s figure is not crucial. According to the testimony of Ron Matthias, former State construction engineer and State’s Exhibit 8, the State’s $60,000.00 figure included over $58,000.00 for non-productive premium time.

The structure of this claim indicates that McDermott Construction Company, Claimant, considered the original figure as an estimate. Claimant’s final bill for the work being done on accelerated basis was $43,379.32 including $19,274.88 for "loss of efficiency factor.” This is nearly $20,000.00 less than the original recapitulation and indicates the earlier figure was only an estimate, and final payment being dependent on the actual work done.

Finally, in deciding against this claim, the Court takes notice that there has been no showing of any loss or expenditure by the Claimant as a result of the "loss of efficiency factor.” The State’s payment to Claimant for the accelerated work schedule represents, on the record, adequate and fair compensation.

There is also no basis for Respondent’s counterclaim for recoupment. The weekly reports of the State’s engineer indicate that only 21-3/4 working days were consumed between the opening of the bridge to trafffic and final completion. This figure is well within the 29 working days allowed under the supplemental contractual agreement. [Claimant’s Group Exhibit #6]

It is undisputed that the opening of the bridge to vehicular traffic did not occur until November 6, 1970, or six days late. However, the State at that time accepted the work without objection and in fact made no objection until after the filing of this suit. Such a delay in time amounts to a waiver of the State’s right to ask for penalties, Nibb v. Brauhn, 24 Ill. 268.

Therefore, this Court disallows both the claim and the counterclaim in this case.


text:
    (No. 6611
    The Illinois Federation of Teachers, Et Al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 29, 1976.

    J. Dale Berry of Kleinman, Cornfield and Feldman, Attorney for Claimants.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Burks, J.

Since the issues ably presented in this class action were substantially the same as the issues in Illinois Education Ass’n., et al. v. State, 28 Ill.Ct.Cl. 379, this Court was prepared to render a similar opinion containing a declaration of Claimants’ rights, as we interpreted them, but leaving the amount of any consequential relief to the discretion of the Legislature. Ill.Rev.Stat. Ch. 110, §57-1/2. In the meantime, Claimants and representatives of other teachers’ pension funds obtained a review of the same issues by the Illinois Supreme Court in People ex rel. Ill. Federation of Teachers, et al. v. Lindberg, et al., (1975), 60 Ill.2d 266.

The Illinois Supreme Court did not entirely agree with our opinion as to Claimants’ constitutional, statutory, and contractual rights, but reached the same conclusion that the question of any consequential relief for pension systems that are inadequately funded by the State "is one which, at this time, should be directed to the legislature.”

Therefore, this action in the Court of Claims must be and is hereby dismissed and closed.


author: Polos, C. J.

text:
    (No. 6782
    Nadine Adams, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 14, 1977.

   Polos, C. J.

This matter coming on to be heard before the Court pursuant to a joint stipulation of the parties thereto, through their respective counsel, and it appearing to the Court from said stipulation that the parties hereto have settled all matters in controversy between them on the basis of a claim of $19,213.80, less Respondent’s recoupment on its counterclaim of $16,713.80, or a net settlement for the Claimant of $2,500.00.

It is therefore ordered that said stipulation be and is hereby awarded as full settlement of her claim the sum of $2,500.00;

It is further ordered that this cause be and is hereby dismissed pursuant to said stipulation.


text:
    (No. 6813
    Barbara K. Barotta, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 2, 1976.

    Peter F. Ferracuti, Attorney for Claimant.
    William J. Scott, Attorney General; Edward L. S. Arkema, Assistant Attorney General, for Respondent.
   Burks, J.

This is a cause of action for personal injuries brought pursuant to the provisions of §8(d) of the Court of Claims Act.

The Claimant, Barbara K. Barotta, was injured in an automobile accident which occurred on State Highway 29 between the Village of DePue and the City of Spring Valley. The complaint charges negligence on the part of the State of Illinois in maintaining Highway Route 29 at the point of the accident.

On September 30, 1970, the Claimant, Barbara K. Barotta, was driving a 1966 Ford automobile, going west on State Highway 29 between the Village of DePue and the City of Spring Valley, Illinois. At approximately 8:30 a.m. she approached a curve in the road. Just prior to reaching the curve, she came upon a wet spot in the road. When she came in contact with the water or wet spot on the highway the front wheels of her automobile skidded on the water, causing the Claimant to lose control of her car. Her car veered into the left eastbound traffic lane and collided head-on with an automobile being driven by a Mr. Estaban Torres. There were no warnings or signs in the area of the accident indicating that the highway was wet or slippery when wet.

At the time of the accident, the Claimant was on her way to Peoria to attend classes at Bradley University. On the day of the accident, the weather was dry and clear. The last rain prior to the accident had been about one week before. Route 29 was not Claimant’s normal route of travel to Peoria. She usually took Route 89 which was closed for repairs on September 30, 1970. She had never driven over Route 29 before.

As a result of the accident, Claimant sustained severe injury to her right ankle, reduced sight in the left eye, a broken nose, bruised ribs and a broken tendon in her finger. She incurred medical bills totalling $6,154.92, and lost some earnings. The injury to her ankle will ultimately require an ankle fusion operation which is likely to result in a permanent limp.

The evidence in this case strongly supports a finding of negligence in the State’s maintaining the area of the highway where Claimant’s accident occurred.

Claimant’s uncontradicted testimony, as abstracted, is as follows:

I had never taken Route 29 to go to Peoria before, I was heading west on Route 29 at the time of the accident and as I got to the top of the hill and started down, I saw the first patch of water. I thought to myself, "what is water doing there?” It had not rained for a week. I started slowing down when I saw the first patch of water and when I hit the first patch and then hit the second patch I lost control of the car. It was as if the car was on glass, and I had no control. There were two patches of water about 10 or 12 feet apart. In between the two patches of water the pavement was damp. As I approached the first patch of water my approximate speed was about 35 to 40 miles per hour. There are no posted speed limit signs on that road to my knowledge, going west. I slowed down to between 30 and 35 miles per hour, and that is when I came upon the first little patch of water. After that, the car was like on glass. There were no cars in front of me. I never noticed Mr. Torres’ car before I came upon this patch of water. The first time I saw his car was when we hit. It is a blind curve there. You can’t see a car until it actually is in the curve or around the curve. At all times prior to coming upon this patch of water, I was in the westbound lane of traffic until I lost control of my car.

The water in question was chronically present because of a seepage problem. Estaban Torres, driver of the other automobile, testified as follows:

I am familiar with Route 29 between DePue and Spring Valley and have traveled it approximately once a week for the past 45 years. I have noticed this water on the road before the date of the accident and have noticed it quite often. It keeps on seeping through the road for quite a number of days, especially when we have a heavy rain. The water seeps up from under the pavement onto the pavement itself.

Lonzo Harrison, Village Marshall of the Village of DePue, testified as follows:

Claimant’s Exhibit No. 2 for identification shows water on the highway. That water has been on the highway before September 30, 1970. I am familiar with Route 29 as portrayed in Claimant’s Exhibit No. 2 for identification, and have traveled that road an average of five times a week for the past 14 years. I have noticed water in that spot before, and it is almost constantly there. The road is always wet there; sometimes the water is running and sometimes it is not. The pavement is cracked up at the accident scene, and on September 30,1970, it was cracked and there had been potholes in it that the State had tried to fill up and blacktop. The State goes over the road just about every day and they patrol it and see these potholes and they try to fill it up.

In the winter it was customary to warn westbound travelers of the condition of the road by a sign that read "Beware of Ice in the Wintertime.”

The curve itself was known locally as "Deadman’s Curve” because of the accidents that had occurred there. It should be pointed out that there is nothing in the record to indicate that water was a factor in any of the previous accidents. Rather, such accidents would appear to have occurred because of the severity of the curve and because of the fact that it was a blind curve.

William Dummett who took the photographs introduced into evidence as Claimant’s Exhibits 1, 2, 3, 4, 9, 10, and 11 testified that when he took the photographs on November 14, 1970, the roadway was damp and that a slippery moss was growing on the gutter edge of the road and some in the middle of the westbound lane.

Both Dummett and Harrison testified that the pictures taken in November accurately portrayed the condition of the highway and the water on September 30, 1970, with the exception of the fact that in September there were no leaves on the ground.

The State had actual notice of the dangerous condition. Highway maintenance men patrolled the highway frequently and were necessarily aware of the water on the road.

The Village Board of DePue had complained to the State that the highway was dangerous, and the Department of Public Works acknowledged that Route 29 was an obsolete highway.

Short of straightening the highway there was nothing the State could do about the dangerous curve in itself. The general nature of Route 29 at the scene of the accident is shown clearly in Claimant’s Exhibits 1, 2, 3, 4, 9, 10, and 11.

However, in the opinion of this Court, the State was negligent in knowingly permitting a permanent condition of water seepage to exist at a curve that was already so dangerous that it was known to the local residents as "Deadman’s Curve.” The very least the State could have done was to erect and leave standing during the summer months warning signs that read "Slippery When Wet,” comparable to the sign erected in the winter reading "Beware of Ice In The Wintertime.” More effectively the State should have located the source of the water and eliminated it.

The Village Marshall of DePue testified that he could recall 10 accidents at the curve in the past 14 years. This is too high an accident rate for one particular curve even though 2,200 vehicles passed over the road daily. Therefore, it was incumbent upon the State to do everything it could to alleviate the dangers inherent in the curve. The State could anticipate that water on the pavement would certainly be an additional hazard.

We find that the State’s negligence was the proximate cause of Claimant’s accident. We accept Claimant’s uncontradicted testimony that on hitting the water, her car went out of control as if it were on glass. The negligence of the State in permitting the water to be on the road was the proximate cause of the accident since there is no evidence of any act of negligence on the part of Claimant.

Claimant was free from contributory negligence. Her uncontradicted testimony is that, upon seeing the water ahead of her, she reduced her speed to 30 to 35 miles per hour. She says she did this not by braking but by taking her foot off the accelerator. The posted speed limit was 40 miles per hour. She makes an uncontradicted, prima facie case of driving with due care for her own safety. There is no evidence in the record that she was travelling at an excessive rate of speed or that her car was in poor mechanical condition. There is nothing in the record to indicate that she was the proximate cause of the accident. Never having driven over the road before, she would not have anticipated a slippery, wet spot in the road.

Claimant’s injuries are spelled out in Joint Exhibit 12 and in her testimony. She incurred $6,154.92 in medical expense. An award of $25,000 would be appropriate considering the extent, duration, and permanency of her injuries.

Respondent, in its brief, again raises the issue of whether Claimant’s statutory notice was defective for failing to state correctly the location of the accident. This matter was decided by Judge Holderman in his order of April 19, 1974, denying Respondent’s motion to dismiss. Both Mr. Torres and the Village Marshall were personally familiar with the scene of the accident. They placed it at approximately 1-1/2 miles east of the city limits of the Village of DePue, as set forth in the notice. John Kopina, the Village Clerk of DePue who testified that the accident site was only 1/4 of a mile east of DePue, testified from a map only and was never at the scene of the accident.

The preponderance of the evidence is that the site of the accident was correctly set forth in Claimant’s statutory notice.

We note that Burgener v. State of Illinois, 25 Ill.Ct.Cl. 6, is fairly analagous although it deals with a sheet of slippery ice across a road. In the Burgener case the ice resulted from a permanent condition of water seepage, and Claimant’s wife lost control of her car on the ice. The State had long standing knowledge that water collected at this point on the road and was held responsible for not warning travelers of the ice.

For the reasons set forth above, the Claimant is hereby awarded damages in the amount of Twenty-Five Thousand Dollars ($25,000.00).


author: Per Curiam.

text:
    (No. 7031
    Charles G. Winters, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 15, 1977.

    Robert J. Shaw, Attorney for Claimant.
    William J. Scott, Attorney General; Richard J. Grossman, Assistant Attorney General, for Respondent.
   Per Curiam.

This cause coming on to be heard on the Joint Stipulation of the parties hereto and the Court being fully advised in the premises;

This Court finds that this claim is for the refund of a security deposit held by the Illinois Secretary of State, Safety Responsibility Unit pursuant to Illinois Vehicle Code, Ill.Rev.Stat., Ch. 95-1/2, §7-503. An investigation of this claim by the Secretary of State determined that the amount due would have been paid in the regular course of business had the claim been presented to the proper office before the money was transferred to the General Revenue Fund. The sole reason said claim was not previously paid is due to the fact that the money was transferred to the General Revenue Fund in the State Treasury in accordance with §7-503 of the Illinois Vehicle Code, the same having been confirmed by the Secretary of State, a copy of said report being attached to the Joint Stipulation of the parties.

It is hereby ordered that the sum of One Thousand Three Hundred Five Dollars ($1,305.00) be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.